Constitutional cases

Some constitutional cases present structural issues involving the separation of powers. Is each branch exercising its allotted authority, and not that of another branch? Does Congress, or the president, have the authority to do what each seeks to do? Some recent examples: Does Congress have the authority to prohibit the local cultivation and use of marijuana for medical purposes, as authorized by a state's “compassionate use” law? (The Court said yes, in Gonzales v. Raich (2005), an interpretation of the congressional power to regulate interstate commerce.) Does the president have the unilateral authority to establish a system of trial by military commission for noncitizens detained as “enemy combatants”? (The Court said no in Hamdan v. Rumsfeld (2006), a decision rich in separation-of-powers overtones while relying, as a formal matter, on statutory and treaty language.)

More often, constitutional cases present claims of individual rights: free speech under the First Amendment, freedom from unreasonable search and seizure under the Fourth Amendment, a claim that a law or policy amounts to the denial of equal protection under the Fourteenth Amendment. Does a state-owned law school violate the equal-protection rights of white applicants by maintaining an admissions policy that favors minority applicants?(The Court said no in Grutter v. Bollinger (2003), on the ground that the policy served the state's “compelling interest” in increasing educational diversity.) Does the Second Amendment's reference to“the right of the people to keep and bear arms” give individuals the right to keep a gun at home for self-defense? (The Court said yes in District of Columbia v. Heller (2008), striking down the District of Columbia's gun-control statute.)

There are several observations to make about the Court's constitutional cases. First, none of the cases mentioned here was decided unanimously; each garnered at least three dissenting votes. So whatever the Constitution was saying, the justices acted on different understandings of its commands, an indication that the art of constitutional interpretation is far from a paint-bynumbers exercise. Second, many constitutional cases, like the law school affirmative-action case, require the justices to balance competing interests, in this instance the white plaintiff's claim of a right to equal treatment versus the state's assertion of society's need for an ethnically diverse educated population. Different justices will balance competing claims differently, in a contextladen process that is considerably more complex than simply deciding in a vacuum whether one side's claim is valid. Much of constitutional law, as it has evolved, entails some sort of balancing test between competing constitutional values.

Third, unlike the early justices, justices of the modern Court rarely find themselves in the position of confronting the Constitution head-on. Rather, constitutional questions reach the Court encrusted by layers of precedent built up over more than two centuries. Sometimes, of course, the decision is to reject the precedent: Brown v. Board of Education (1954) interpreted the Fourteenth Amendment's equal protection guarantee to prohibit official segregation, which a fifty-eight-year-old precedent, Plessy v. Ferguson (1896), had deemed acceptable as long as the“separate” facilities were “equal.” But in the great majority of cases, the justices sift through the available precedents like miners panning for gold, hoping to find one that suggests an answer to the question at hand. Supreme Court opinions are not built from scratch. Most contain multiple quotations from the Court's earlier cases, from which the opinion writer reasons by analogy. In any area of doctrine in which the Court has been active for a long time, there are usually precedents that can plausibly support a variety of outcomes.

The 2008 Second Amendment case from the District of Columbia was an exception. Surprisingly enough, the Court had never issued an authoritative interpretation of the Second Amendment, so there was no binding law to apply to the question of whether the District's prohibition on individual handgun ownership was constitutional. There was, of course, the amendment's opaque, one-sentence text: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Even leaving aside the excessive punctuation, the sentence is confusing, and its implications for individual gun rights, divorced from the context of a “wellregulated militia,” are unclear.

Justice Antonin Scalia, for the five-member majority, and Justice John Paul Stevens, for the four dissenters, grappled with the text and history of the Second Amendment and reached opposite conclusions. Who were “the people” whose right the amendment was protecting? According to Justice Scalia, these were the same “people” who enjoyed the other individual rights protected by the Bill of Rights, such as the First Amendment's“right of the people peaceably to assemble.” The amendment codified a “pre-existing” individual right to self-defense, Scalia concluded. But to Justice Stevens, “the people” addressed by the Second Amendment were those with a duty to serve in the state militia, and the right was a collective one, to be exercised only in connection with military service. The two sides also disagreed over what the amendment implied by the words “bear arms.”Justice Stevens regarded the phrase as an idiom limited to the context of military service. Justice Scalia, recognizing no such limitation, interpreted the phrase as referring more generally to self-defense.

One of the four dissenters, Justice Stephen G. Breyer, while signing the Stevens dissent, proposed an alternative approach, which he called a “focus on practicalities.” The question he asked was what purpose the District of Columbia's statute served and how that purpose might relate to the interests the Framers of the Second Amendment sought to protect. The District meant to protect public safety in a densely populated urban environment, Justice Breyer observed. He noted that during the colonial period, the major cities of the American colonies pursued a similar goal by restricting the storage of gunpowder in private homes, where it presented a fire hazard. Boston flatly prohibited bringing loaded firearms into “any dwelling-house” or “other building, within the Town of Boston,” despite a provision in the Massachusetts Constitution that granted “the people . . . a right to keep and to bear arms for the common defence.” Breyer's conclusion was that even if the Second Amendment was understood to protect an individual right, the Framers contemplated exceptions, and the District's gun-control law was compatible with the original understanding.

As the Second Amendment example shows, justices employ a variety of tools to interpret the Constitution. Text and history are the commonly accepted starting points although, as this case demonstrates, neither may provide a definitive answer. In his 1997 book, A Matter of Interpretation: Federal Courts and the Law, Justice Scalia describes himself as a textualist and an “originalist”who believes that the only legitimate basis for interpreting a provision of the Constitution is the original understanding of the Constitution's Framers. “If the courts are free to write the Constitution anew,” he warns, “they will, by God, write it the way the majority wants . . . By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”

Justice Breyer, on the other hand, advocates a “pragmatic”approach that rejects overarching theories in favor of “a Constitution that works well for the people today.” In his own book on constitutional interpretation, Making Our Democracy Work: A Judge's View (2010), Breyer writes that “the Court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”