Constitutional Dialogues

To be worthy of the name, constitutional government means something more than a written document. The Soviet Union produced a constitution that on paper guaranteed many types of individual freedoms, including speech and religion. In practice, under the rule of the Communist Party, those constitutional rights meant nothing. As Charles McIlwain ( 1871–1968 ) pointed out, constitutionalism “has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law” ( McIlwain 1947, 21–22 ).

Between 1640 and 1660, England experienced civil war, executed a king (Charles I), and searched for a form of government that could function, attract public support, and endure. Concepts and techniques explored during that period include popular sovereignty, written constitutions, constitutional limitations, separation of powers, checks and balances, and a bicameral legislature ( Wormuth 1949, 43 ).


1755–1804 ), John Jay ( 1745–1829 ), and James Madison ( 1751–1836 ), later published as The Federalist. Articulate rebuttals were prepared by the Anti-Federalists. That type of public debate has never ceased. On many occasions, to be discussed, the public has weighed in over the years to mount a successful counterforce against Supreme Court rulings.

In the United States, it is important to understand the practical forces that led to the creation of separated branches. The American structure of government owes its existence more to the political experiences from 1776 to 1787 under the Articles of Confederation than to the theory of Montesquieu ( 1689–1755 ) or precedents borrowed from England. The Framers used Montesquieu selectively, adopting what they knew from their own experience to be useful and rejecting what they knew to be inapplicable. Having served in public life for many years, both in the colonies, state government, and the fledgling republic after 1776, they knew firsthand the practical duties and problems of operating government. They had vision without becoming visionaries.

It has been said that government powers must be separated to preserve liberties. But extreme separation can destroy liberties. The French constitutions of 1791 and 1848 represented ambitious efforts to erect a rigid and dogmatic system of separation of powers. The 1791 document produced the reign of Napoleon Bonaparte ( 1769–1821 ); the next led to the Second Empire ( Vile 1967, 176–211 ). The Framers of the American Constitution did not want a political system so fragmented in structure, so divided in authority, that it could not function. In his Commentaries, Justice Joseph Story ( 1779–1845 ) correctly observed that in adopting a separation of powers the Framers “endeavored to prove that a rigid adherence to it in all cases would be subversive of the efficiency of the government, and result in the destruction of the public liberties” ( Story 1905, 1:396 ).

After ratification of the US Constitution, three states (North Carolina, Pennsylvania, and Virginia) wanted to add a separation clause to the national Bill of Rights. The proposed language: “The powers delegated by this constitution are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial[,] nor the executive exercise the powers vested in the legislative or judicial, nor the judicial exercise the powers vested in the legislative or executive departments.” Congress rejected that proposal, as well as a substitute amendment to make the three departments “separate and distinct” ( Fisher 2014a, 10 ). The Framers understood that a pure separation of the three branches would prevent government from functioning effectively.


On frequent occasions, the Supreme Court will state, as it did in the US Bank case, McCulloch v. Maryland, 17 U.S. 316 ( 1819 ): “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the power granted to it … is now universally admitted” (17 U.S. at 405). There is no enumerated power in the Constitution for Congress to establish a national bank. The Court upheld the statute only by finding the power implied in the necessary and proper clause. More recently, as in United States v. Lopez, 514 U.S. 549 ( 1995 ), the Court declared: “We start with first principles. The Constitution creates a Federal Government of enumerated powers” (514 U.S. at 552). That is not a first principle. If it were, the Court would not have the power of judicial review nor would Congress have the power to investigate, issue subpoenas, and hold individuals in contempt for failing to testify or provide documents to committees. Those implied powers and others are routinely exercised.

Government in the United States, either at the federal, state, or local level, has never been limited to enumerated powers. James Madison wrote in Federalist No. 44: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included” ( Wright 2002, 322 ). During the First Federal Congress, Madison successfully defeated an effort to limit the national government to powers expressly delegated. The Articles of Confederation, which became effective in 1781, gave broad protection to the states. They retained all powers except those “expressly delegated” to the national government ( Jensen 1963, 263 [Art. 2] ).

When members of the First Congress debated the draft of the Bill of Rights, someone proposed that what became the Tenth Amendment include the words “expressly delegated” to restrict national powers. The language would read: “The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Madison objected to the word expressly because the functions and duties of the federal government could not be delineated with such precision. It was impossible, he said, to confine a government to the exercise of express or enumerated powers, for there “must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae” ( 1 Annals of Cong. 761, Aug. 18, 1789 ). Madison's argument prevailed. The word expressly was deleted.

All three branches have a range of implied powers. The Constitution makes no mention of the president's authority to remove executive officials. From May 19 through June 24, 1789, lawmakers debated the existence of a removal power ( Fisher 2014a, 57–62 ). Key to that discussion was the president's express duty under Article II to “take Care that the Laws be faithfully executed.” What would happen if a department head interfered with the execution of a law? Could the president remove that individual? Both houses agreed that the president possessed an implied power to remove department heads. That power was considered reasonably drawn from an enumerated power.

At the same time, lawmakers recognized that certain officials within a department should not serve at the pleasure of the president. They needed independence to carry out what are called ministerial duties, where the officer's duty is to the law and not to the president. Examples include accounting officers who determine claims against the government, agency adjudication, and officials who calculate Social Security benefits ( Fisher 2014b, 76–84 ). Independent commissions and agencies operate at some distance from strict presidential or White House control. Contemporary research asserts that all executive departments and agencies operate solely in accordance with the president's wishes ( Calabresi and Yoo 2008 ). That degree of presidential control has never existed from 1789 to the present ( Fisher 2010 ).


Scholars often describe the Supreme Court as the trusted guardian of individual and minority rights and the branch that supplies the authoritative and final word on the meaning of the Constitution. It has been neither. For most of US history, citizens sought protection from the courts only to lose on a regular basis. Judges were more inclined to protect the rights of government and corporations. Only over the past seven decades has the Supreme Court begun to decide cases that protected individual and minority rights. Over more than two centuries, citizens learned that their interests were better defended by legislative bodies at federal and state levels.

Slavery. The word slavery does not appear in the Constitution, but its existence is recognized in several places. For example, Article V provides that no amendment prior to 1808 “shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.” Through this roundabout language, the Constitution provided in Section 9 a grace period from 1789 to 1808 for the slave trade, referred to as the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit.” At the Philadelphia Convention, Madison thought “it wrong to admit in the Constitution the idea that there could be property in men” ( Farrand 1966, 2:417 ).

The three branches of the federal government did little to curb slavery, even after 1808. Opposition came from the public, not from legislative, executive, or judicial actions. Individual Americans, untutored in the fine points of constitutional law, viewed slavery as repugnant to fundamental political and legal principles, especially those embedded in the Declaration of Independence. The essential antislavery documents were private writings and speeches, not court decisions or legislative statutes ( Wiecek 1977 ). Citizens “were not inclined to leave to private lawyers any more than to public men the conception, execution, and interpretation of public law.” The Constitution “was everyone's business” ( Hyman 1975, 6 ).

Political leadership was desperately needed at the national level, but neither Congress nor the president was willing to confront slavery and try to resolve it. Instead, they tossed the smoldering issue to the Supreme Court, encouraging it to settle the matter. In his inaugural address on March 4, 1857, James Buchanan ( 1791–1868 ) told the nation that the case of Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), was a “judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled” ( Schlesinger and Israel 2010, 132 ).

The Court's decision, issued a few days later, was indeed speedy but failed to settle the issue. Writing for the majority, Chief Justice Roger Taney ( 1777–1864 ) held that Dred Scott (and all other black slaves and their descendants) was not a citizen of the United States or of Missouri and could not sue for freedom in court. Taney also ruled that Congress lacked constitutional authority to prohibit the spread of slavery to the territories in the West. Over the next few years, the nation lurched toward a bloody civil war.

Minority and Individual Rights. In 1875, Congress passed legislation to provide freed blacks equal access to such public accommodations as inns, theaters, and public transportation. In the Civil Rights Cases, 109 U.S. 3 ( 1883 ), the Supreme Court struck down this statute as a federal encroachment on the states and an interference with private relationships. Only one justice, John Marshall Harlan ( 1833–1911 ), dissented ( Fisher 2014c, 185–90 ). After World War II, federal courts began to rethink the relationship between “state action” and private parties. In Burton v. Wilmington Parking Authority, 365 U.S. 715 ( 1961

Congress included in the Civil Rights Act of 1964 a section on public accommodations. The bill passed with top-heavy majorities of 289 to 126 in the House and 73 to 27 in the Senate. Private groups lobbied for the bill, creating a political base that helped educate citizens and build public support. The rights of blacks were finally secured through this legislative process. In two unanimous decisions in Heart of Atlanta Motel v. United States, 379 U.S. 241 ( 1964 ), and Katzenbach v. McClung, 379 U.S. 294 ( 1964 ), the Court upheld the public accommodations law. The active, reliable judgment in protecting the constitutional rights of minorities came from the elected branches, finally overcoming judicial obstruction.

Congress also proved to be the better guardian of the rights of women who wanted to practice law. That issue reached the Supreme Court in Bradwell v. State, 83 U.S. 130 ( 1873 ), with the justices deciding that no such constitutional right existed. Several years later, Belva Lockwood ( 1830–1917 ) drafted language to overturn the Court's rule that prohibited women from practicing there. Working with a Congress with all male members, her bill became law in 1879 ( Fisher 2014c, 180–84 ). It was not until Reed v. Reed, 404 U.S. 71 ( 1971 ), that the Supreme Court struck down a law on the ground that it amounted to sex discrimination. A study published that year concluded that “by and large the performance of American judges in the area of sex discrimination can be succinctly described as ranging from poor to abominable” ( Johnson and Knapp 1971, 676 ).

Judicial Finality Courts and scholars regularly insist that the Supreme Court has the final word on constitutional interpretation. Justice Robert Jackson ( 1892–1954 ) advanced that position in Brown v. Allen, 344 U.S. 443 ( 1953 ): “We are not final because we are infallible, but we are infallible only because we are final” (344 U.S. at 540). A cute turn of phrase, but Jackson knew as well as anyone that the Court had not been infallible or final, even during his own years as associate justice. In Miners-ville District v. Gobitis, 310 U.S. 586 ( 1940 ), the Supreme Court held that public school children could be compelled to salute the American flag even if the procedure violated their religious beliefs. Although the Court's majority was a commanding eight to one, opposition from scholars, the press, and the public was so pronounced that three years later in West Virginia State Board of Education v. Barnette, 319 U.S. 624 ( 1943 ), the Court reversed its position, finding the flag-salute requirement repulsive to constitutional values ( Fisher 2014c, 201–210 ). The justice who authored the 1943 decision: Robert Jackson.

The customary defense of judicial finality is a sentence from the celebrated decision of Marbury v. Madison, 5 U.S. 137 ( 1803 ), the first time the Supreme Court struck down a congressional statute. Chief Justice John Marshall ( 1755–1835 ) wrote: “It is emphatically the province and duty of the judicial department to say what the law is.” Read that sentence as often as you like and it says nothing about judicial supremacy. It says what is obvious: courts decide cases. The sentence could be rewritten slightly to say that it is “emphatically the province and duty of the legislative department to say what the law is.” Quite true, but it does not demonstrate legislative finality either ( Fisher 2014c, 18–31 ). Nevertheless, Marshall's sentence is regularly cited when the Court wants to assert that it has the last word on constitutional meaning. For example, in Boerne v. Flores, 521 U.S. 507 ( 1997 ), the Court referred to Marshall's language to insist that when a conflict occurs between a Court precedent and a congressional statute, the Court's ruling “must control.”

US history demonstrates that judicial rulings are much more fluid and responsive to changing political conditions. The Court's decision in Plessy v. Ferguson, 163 U.S. 537 ( 1896 ), upheld Louisiana's requirement that blacks and whites sit in separate railroad cars. The doctrine met increasing opposition from Americans, leading to lawsuits that chipped away at its foundation until it was abandoned in Brown v. Board of Education, 347 U.S. 483 ( 1954 ), and subsequent rulings ( Fisher 2014c, 192–200, 216–20 ).

In Hammer v. Dagenhart, 247 U.S. 251 ( 1918 ), the Court struck down legislation passed by Congress to regulate child labor. Divided 5–4, the Court held that Congress had exceeded its power under the commerce clause. When Congress chose to regulate child labor through the taxing power, the Court in Bailey v. Drexel Furniture Co., 259 U.S. 20 ( 1922 ), struck that down as well. Congress passed a constitutional amendment to give it authority to regulate child labor, but could not attract sufficient states to ratify it. As the years went by, Congress and the country became more determined on the need to regulate child labor ( Fisher 2014c, 92–95 ).

In 1938, Congress passed legislation to subject child labor to federal regulations, relying on the same power the Court had earlier invalidated: commerce. In United States v. Darby, 312 U.S. 100 ( 1941

The Court's ruling in Roe v. Wade, 410 U.S. 113 ( 1973 ), triggered sharp criticism from conservative and liberal scholars because it upheld a woman's right to an abortion by constructing differing rights over three periods of pregnancy: the first three months with the woman's right at its highest, followed by the middle three months and the final three months, with the woman's right declining and state authority increasing. This trimester model assumed distinct periods of viability for a fetus, but medical technology resulted in rapid changes in viability ( Fisher 2014c, 131–36 ). The Court, recognizing the deficiency of its 1973 ruling, abandoned the trimester framework in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 ( 1992 ).

A similar pattern marked Court decisions involving state legislation that criminalized sodomy. Initially, the Court in Bowers v. Hardwick, 478 U.S. 186 ( 1986 ), upheld such laws, finding no constitutional grounds for the rights of adult homosexuals to engage in consensual sex. States then began reexamining their laws and repealed many. At the same time, the public registered increasing support for gay rights ( Fisher 2014c, 150–54 ). The Court, recognizing that its position in 1986 was increasingly in disfavor, reversed course in Lawrence v. Texas, 539 U.S. 558 ( 2003 ), and overruled Bowers.


The Framers never intended to vest in the Supreme Court final authority over the meaning of the Constitution. It has never exercised that power exclusively. Writing in 1962, Yale law professor Alexander Bickel ( 1924–1974 ) emphasized that courts find themselves engaged in a “continuing dialogue with the political institutions and society at large,” a process in which constitutional principle is “evolved conversationally not perfected unilaterally” ( Bickel 1962, 240, 244 ). A purely technical analysis of court rulings misses the constant, creative, and constructive interplay between the judiciary and the political system.

SEE ALSO Constitutional Authority ; Constitutional Interpretation ; Departmentalism ; Governance ; Judicial Supremacy ; Power .


Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New York: Bobbs-Merrill, 1962.

Calabresi, Steven G., and Christopher S. Yoo. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, CT: Yale University Press, 2008.

Farrand, Max, ed. The Records of the Federal Convention of 1787. 4 vols. New Haven, CT: Yale University Press, 1966.

Fisher, Louis. “The Unitary Executive and Inherent Executive Power.” University of Pennsylvania Journal of Constitutional Law 12, no. 2 (2010): 569–91.

Fisher, Louis. Constitutional Conflicts between Congress and the President. 6th ed. Lawrence: University Press of Kansas, 2014a.

Fisher, Louis. The Law of the Executive Branch: Presidential Power. New York: Oxford University Press, 2014b.

Fisher, Louis. On the Supreme Court: Without Illusion and Idolatry. Boulder, CO: Paradigm, 2014c.

Hyman, Harold M. A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution. Boston: Houghton Mifflin, 1975.

Jensen, Merrill. The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781. Madison: University of Wisconsin Press, [1940] 1963.

Johnson, John D., and Charles L. Knapp. “Sex Discrimination by Law: A Study in Judicial Perspective.” New York University Law Review 46, no. 4 (1971): 675–747.

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, NY: Cornell University Press, 1947.

Schlesinger, Arthur M., Jr., and Fred L. Israel, eds. My Fellow Citizens: The Inaugural Addresses of the Presidents of the United States, 1789–2010. New York: Facts on File, 2010.

Story, Joseph. Commentaries on the Constitution of the United States. 2 vols. Boston: Little, Brown, 1905.

Vile, M. J. C. Constitutionalism and the Separation of Powers. London: Oxford University Press, 1967.

Wiecek, William M. The Sources of Antislavery Constitutionalism in America, 1760–1848. Ithaca, NY: Cornell University Press, 1977.

Wormuth, Francis D. The Origins of Modern Constitutionalism. New York: Harper, 1949.

Wright, Benjamin Fletcher, ed. The Federalist. New York: Metrobooks, 2002.

Louis Fisher
The Constitution Project