Featured Legal Articles by 2011 U.S. Fulbright Scholar/Law Professor Wendy NN Duong

OVERVIEW OF THE U.S. CONSTITUTION -- Kha'i Nie^.m Ve^` Hie^'n Pha'p Hoa Ky`

No'i vo*'i do^.c gia? Vie^.t:  Trong na(m 2011-2013, VHCHXHCN dang ba`n ti'nh vie^.c su?a do^?i hie^'n pha'p.  Y' nghia~ cu?a su. vie^.c na`y la` ca? mo^.t va^'n de^` nan gia?i.  Ba`i vie^'t duo'i da^y, duo.c soa.n tha?o cho chuong tri`nh Fulbright cu?a My~ nie^n kho'a 2011-12, se~ giu'p do^.c gia? hie^?u the^m ve^` can ba?n hie^'n pha'p trong the^? che^' chi'nh tri. va` xa~ ho^.i pha'p di. nh cu?a Hoa Ky`.  

Overview of the U.S. Constitution: 

An Introduction to American Constitutionalism

By Wendy N. Duong, U.S. Fulbright Core Program Scholar 2011-12 [1]

B.S. Southern Illinois University  

J.D., University of Houston

LLM, Harvard University

I.  INTRODUCTION

Drafted in 1787 by the scholar-theorist James Madison,[2] the U.S. Constitution is as old as the history of the U.S.A, yet the document  is considered "living" because it contains fundamental principles that are applied and lived every day in the U.S.  It has seven articles and 27 amendments. The U.S. Constitution has been studied, quoted, and used as a model by many constitutional scholars around the world. As a document, it embodies the four areas that form the blueprint of America:  law, history, government, and culture:  

1) A Document Of Law: The Constitution is the supreme law of the land[3] and establishes America as a ‘rule of law” society:  the rule of law obliges both the individual and the government to submit to the supremacy of the law.

2)  A Document Of History: The Constitution was the tool of America’s founding fathers to establish independent nationhood, and, hence, has co-existed with America’s more than 200 years of history;[4]

3)  A Document Of Government And Political Philosophy: The Constitution establishes America’s fundamental governmental structure and political philosophy: a republican form of government representing the people of a “Union,” built on a “check-and-balance” notion of dividing government powers. America combines

     a) “federalism” (i.e., a vertical division of powers between a national government and individual State sovereignties),[5] with

       (b) “separation of powers” (i.e., a horizontal division of powers among the three branches of government:  legislative, executive, and judiciary).

4) A Document Of Culture And Society:  The Constitution characterizes the American culture as a society in which the people rule and decide for themselves -- America’s Founding Fathers spoke the voice of the people to enumerate and restrict the power of government and to assert their individual liberties (this is the gist of the first 10 Amendments to the Constitution called the “Bill of Rights,” also authored by Madison). What many Americans remember by heart is the Preamble, which states in pertinent parts:

“We the People of the United States, in order to form a more perfect Union, establish Justice…and secure the Blessings of Liberty to ourselves and our Posterity…do ordain and establish this Constitution for the United States of America.”

Thus, to understand American constitutionalism, one must understand four concepts:
(i) Separation of Powers (the relationship between the three branches of government);
ii) Federalism (the relationship between the national government and the sovereign States);
(iii) the Doctrine of Judicial Review (the mechanism through which the Constitution is interpreted and upheld); and
(iv) the Bill of Rights (the relationship between the government and the individuals).

II.  SUMMARY OF THE 7 ARTICLES AND THE 27 AMENDMENTS

--Article I establishes the federal Legislative Branch.    

--Article II establishes the federal Executive Branch.

--Article III establishes the federal Judicial Branch.

--Article IV contains, inter alia, the “Full Faith and Credit Clause,” which requires that each State give full faith or credit to the laws and records of other States. Article IV also has the “Privileges and Immunities Clause,” which accords citizens of each State all Privileges and Immunities in other states.[6] Article IV was intended to overcome State provincialism and discrimination against out-of-state individuals.[7]  

--Article V provides the process for amending the Constitution.  

--Article VI contains, inter alia, the “Supremacy Clause,” which establishes the Constitution (and treaties and federal law made thereunder) as the supreme law of the land.

--Article VII requires ratification by nine States for the establishment of the Constitution.

The amendment process outlined in Article V allows the Constitution to perpetuate itself.  An amendment to the Constitution must be passed by two-thirds of both the House of Representatives and the Senate, and must be ratified by three-fourths of the States.  The amendment process consists of two steps:

• First, amendments may be proposed by a two-third super-majority in both houses of Congress, or by a special convention called by the legislatures of two-thirds of the States;

• Second, amendments must be ratified by the legislatures of three-fourths of the States, or by Conventions in three-fourths thereof. [8]  The Constitution does not provide for the role of the President in the amendment process.     

The substantive Amendments:  As shown below, the 27 Amendments reflect not only the development of the American rule of law but also American history. For example, a number of amendments were consequences of the American Civil War over the issue of slavery in the Southern States.   

The 1^st Amendment guarantees individual freedom of religion, speech, the press, peaceful assembly, and the right of the people “to petition the Government for a redress of grievances.” These guaranteed liberties, however, are not absolute.[9] The First Amendment is generally described in the following shorthand language:  

(i) a “Free Speech Clause” for individuals and the press; protected speech can be non-verbal or symbolic;

(ii) an “Establishment Clause” (more properly called the “Non-Establishment Clause”), which establishes the United States as a secular government; and

(iii) a “Free Exercise Clause,” which prohibits government interference with religious freedom.[10]

The 2d Amendment guarantees the people’s right to bear arms as foundation for militias.[11]

The 3d Amendment guarantees the right of the people not to have soldiers stay in their houses without the owners’ consent. This is the constitutional prohibition against quartering troops.

The 4^th Amendment guarantees the people’s property and persons against unreasonable search and arrest warrants without probable cause. Those warrants must “particularly describe[] the place to be searched, and the persons or things to be seized.” 

The 5^th Amendment guarantees rights of persons who are accused of crimes:

--Criminal charges against an individual must be brought by a grand jury;

--People are protected against “Double Jeopardy,” meaning that they cannot be tried twice for the same crime;

--People don’t have to testify against themselves and hence can remain silent in a criminal proceeding (this right has commonly been described in American society as “taking the Fifth”);

--The state cannot take away a person’s life, liberty or property without due process of law (the “Due Process Clause”);

The 5^th Amendment also contains the “Eminent Domain Clause,” which prohibits government condemnation of private property[12] for public use without just compensation. Eminent domain protection has been applied to partial or total, temporary or permanent government taking, and to tangible or intangible property.[13]   

The 6th Amendment guarantees the right of the accused to a speedy public trial before an impartial jury, as well as the rights to be informed of the nature and cause of the accusation, to confront and obtain witnesses, and to have assistance of counsel.

The 7^th Amendment guarantees the right to a jury in a civil trial.

The 8^th Amendment prohibits the imposition of “excessive bail” and “excessive fines,” and the infliction of “cruel and unusual punishment” – the penalty cannot be disproportionate to the crime (The “Cruel and Unusual Punishment Clause”).[14]

The 9^th Amendment assures that enumerated constitutional rights do not “deny or disparage” other rights “retained by the people.” Hence, the Constitution as a source of law cannot be used to displace the people’s existing rights (whether at common law or by natural law) or used against the people.      

The 10^th Amendment assures that the Constitution does not displace the powers “reserved to the States…, or to the people.” Thus, the States can still make laws not forbidden by the Constitution. The 10^th Amendment evidences the division of powers by federalism, reserving to the sovereign States all powers that the Constitution does not delegate to the national government. 

The 11^th Amendment keeps citizens of one State from suing another State in the federal courts.[15] 

The 12^th Amendment establishes the Electoral College and the process for the people to elect the President and Vice President. 

The 13^th Amendment abolishes slavery.

The 14^th Amendment includes the “Equal Protection Clause” and the “Due Process Clause” applicable to the States.[16]  The 14^th Amendment also makes all the privileges and immunities of U.S. citizens applicable to the States (the “Privilege and Immunities Clause”).[17]  Hence, the U.S. Supreme Court has interpreted the 14^th Amendment to extend the protection of the Bill of Rights to the State level. The Due Process Clause, in particular, has been used by the U.S. Supreme Court as the basis for a constitutionally protected right of privacy against intrusive State laws.[18]   

The 15^th Amendment guarantees all citizens’ right to vote (including the “recently freed men” after the Civil War).

(The 13^th, 14^th, and 15^th Amendments are known as the “Civil War Amendments.”)

The 16^th Amendment establishes Congress’ taxing power.

The 17^th Amendment establishes the process for the direct election of U.S. Senators.

The 18^th Amendment prohibited alcohol and was later repealed by the 21^st Amendment legalizing alcohol.

The 19^th Amendment establishes women’s right to vote.

The  20^th Amendment establishes the terms of service for the President, Vice President, and Congress.

The 21^st Amendment repeals the 18^th Amendment and legalizes alcohol.

The 22nd Amendment sets further limit for Presidential terms.

The 23rd Amendment establishes the number of electors in Washington, D.C. for the election of the President. This Amendment gives the District of Columbia three electoral votes.   

The 24^th Amendment eliminates the poll tax and effectively equalizes citizens’ right to vote after the American Civil War.

The 25^th Amendment establishes rules for the succession of the Presidential office, and for filling the office in case of the President’s removal, death, resignation, or if he/she becomes temporarily or permanent disabled.    

The 26^th Amendment lowers the voting age to 18 (a result of the draft during the Vietnam War).

The 27^th Amendment determines Congressional pay raises: Congress can vote to give its members a raise, but such raise will only go into effect after an election (i.e., the raise will not be effective until the following term).      

III. EXPLANATION OF AMERICAN CONSTITUTIONALISM

 AND STRUCTURE OF  GOVERNMENT

A.  SEPARATION OF POWERS 

1. The American Congress consists of the House of the Representatives and the Senate. One house cannot act unilaterally without the other under the principle of bicameralism.  Both houses of legislature must agree to adjourn (i.e., one house cannot leave while the other is still in session). The Speaker of the House is the top officer of the House of Representatives, which has 435 members elected based on population. The Vice President of the U.S. is the President of the Senate, which has 100 members (two Senators elected from each of the 50 States, regardless of population). Bills that raise taxes must always begin in the House of Representatives.

Other than law-making, the Constitution also gives specific powers to Congress: for example, the power to issue copyrights (the “Copyright Clause”); to raise, spend, and print money; to make war and rules for the Army and the Navy; and to ”regulate Commerce with foreign Nations, and among the several States…” (the “Commerce Clause”). Article I also contains the “Necessary and Proper Clause” (sometimes called the “Elastic  Clause” or the “Sweeping Clause”), which enables Congress to “make all Laws which shall be necessary and proper to carry into execution…all powers vested by [the] Constitution in the Government of the United States.”[19] A “Speech and Debate Clause” provides that members of Congress engaged in their legislative duties “shall not be questioned in any other Places.” This Clause effectively creates absolute immunity from civil or criminal suits. To serve in the House, one must be at least 25 years old; to be elected Senator, one must be at least 30 years old.

2.  The Presidency is very important because of, inter alia, the role that the U.S. plays in global affairs as a superpower -- the Chief Executive of the U.S. is generally regarded as one of the world leaders. The President not only has the power but also the duty to “take Care that the Law be faithfully executed.” (Art. II, Sec. 3). A Presidential candidate must be at least 35 years old, and cannot be a naturalized  citizen.

The Constitution also enumerates roles and powers for the President. For example, he (or she) serves as Commander in Chief, works with Congress to make laws, enters into treaties with other nations (with two-thirds of the Senators present concurring), and appoints Supreme Court Justices and Ambassadors subject to “advice and consent” of the Senate. With the treaty power expressly granted to him by the Constitution, the President also has the inherent power over foreign relations as Head of State, even though this inherent power is not expressed explicitly in the text of the Constitution.[20] Further, although the Constitution gives Congress the power to “declare war,” the President has the power to “make war” and repel invasions of the United States as Commander in Chief.[21]    

When Americans vote for their President, they actually vote for an Electoral College, a small group of people from all of the States, who cast the official votes for the Presidency and Vice Presidency. This Electoral system supposedly assures the voting power of lesser populated states.[22]

The President is absolutely immune from damages predicated upon his official acts while in office, but he or she can still be sued for conduct that occurred prior to his or her term and was unrelated to any Presidential duties. The President can only serve two consecutive terms, a total of 8 years. He or she can only be removed from office if impeached by the House and then removed by two-thirds of the Senators votes.

3.  The Federal Judiciary:  The U.S. Supreme Court is the only court directly created by the Constitution. However, Article III of the Constitution also authorizes Congress to “ordain and establish” lower federal courts. (In 1789, the First Congress enacted the Judiciary Act, which established the federal judiciary). Thus, federal and State courts co-exist. [23]  Under the Doctrine of Judicial Review (discussed later in this paper), ultimately the U.S. Supreme Court is the interpreter of the Constitution, and has the final say on whether certain government action is unconstitutional.   

Check-and-Balance: The Separation of Powers Doctrine and its “check-and-balance” objective are seen not only in the way the Constitution separates the three branches of the federal government, but also in the way it establishes how the three branches must work together: the three branches “connect and blend” to ensure that each has some control over the others.  For example:

•A bill can only become law if Congress passes it (with over 50% of the votes).  But the President must sign the bill into law, and he can exercise his “veto” power by refusing to sign it. In that case, Congress must reconsider the law, and can only override the Presidential veto with two-thirds of the members’ votes. This “super-majority” Congressional voting requirement is to assure that Congress re-examine the bill under the hardest test, in case of a Presidential veto.  

•The U.S. Supreme Court Justices, who are ultimately responsible for examining the constitutionality of State and federal legislations, serve for life to maintain their independence, but they must be nominated by the incumbent President and then confirmed by the Senate. 

•While the U.S. Supreme Court may declare an act of Congress unconstitutional, Congress and the sovereign States – elected representatives of the people -- can override the Highest Court with an amendment to the Constitution.[24]

•Although the Court is independent, and although the Constitution establishes the Court’s original jurisdiction, the Constitution also gives Congress the power to make laws that create exceptions from the Highest Court’s appellate jurisdiction. Congress has control over the subject matter jurisdiction of the federal courts.

B.              FEDERALISM

Article VI’s Supremacy Clause codifies the fundamental tenet of federalism: the Constitution, valid federal laws, and treaties made thereunder trump all state laws that are in conflict. The Clause is aided by the judge-made “Preemption Doctrine.” A federal statute may expressly state that it preempts state laws on the same subject, or the courts may infer preemption.[25] However, neither the Supremacy Clause nor the preemption doctrine establishes that the federal government is “the boss” of the States in their roles as sovereign States.

Federalism contemplates two distinct spheres of government powers: national and State, each exclusive of the other. As stated by U.S. Supreme Court Anthony Kennedy, the Framers of the U.S. Constitution “split the atom of sovereignty.”[26] Although the main powers of nationhood such as waging war, making peace, or regulating interstate commerce are assigned to the federal government, daily governing responsibilities and police power remain with the States.  The power of a national government is thus limited as enumerated by the Constitution and, hence, cannot interfere with State sovereignty. Under the Constitution, the sovereign States reserve the government powers that are not made exclusive to the national government, nor retained by the people.

Another feature of federalism can be demonstrated via Article I’s prohibition against in interstate compact: “No [S]tate shall, without Consent of Congress…enter into any Agreement or Compact with another State.” This prohibition has been interpreted to deter only compacts that tend to increase the political power of the States, such that the compact may encroach upon the supremacy of the United States as the national government.[27]    

C.              DOCTRINE OF JUDICIAL REVIEW

The power of the U.S. Supreme Court is established in the text of Constitution itself and also by virtue of the American common-law traditions. Such power to decide constitutional issues ultimately rests in the hands of the nine Justices of the U.S. Supreme Court.[28]  Only these Justices, speaking as an opinion-writing body, can ultimately say  what the Constitution means, and declare whether an act of government is unconstitutional. This part of American constitutionalism is called ‘the Doctrine of Judicial Review.” The doctrine allows the Supreme Court to interpret its own constitutional role, for itself – the Court must assume its role under the Constitution in order to interpret the Constitution.[29]

1) Requirements for Judicial Review: The Constitution gives the Supreme Court judicial power, not law-making power.  Judicial Review, therefore, must have limits. In a way, the Court must set limits for itself and decide when it should “speak.” Constitutional  law  doctrines or judge-made standards determine when Judicial Review can be invoked.  

The Court can only decide constitutional issues by way of a “Case and Controversy” brought by a litigant who has “Standing.” This means that the case must be brought by an injured party who has a genuine stake in the outcome of the litigation. The case must also be “Justiciable” and “Ripe” for decision – the Court must avoid premature adjudication, abstract disagreements, or academic discourse that may not have matured into an actual controversy. The Court cannot render an advisory opinion but must resolve real-life disputes that carry legal consequences by rendering judicial relief. The dispute must also be alive and not rendered “Moot” by subsequent events. Nor can the dispute be a “Political Question” within the domain of other branches of the government. If all of these requirements are met, then the Court can exercise Judicial Review to decide and issue an opinion on the constitutional issue at stake.   

2) The challenge of interpretation and upholding the Constitution: Many Supreme Court decisions have addressed controversies in American society. People disagree with the Justices, and the Justices disagree with one another. Difficult decisions often are the result of five-to-four opinions. The American public can be divided, yet Supreme Court’s decisions stand as the law of the land in the context of “Case and Controversy.” The Court’s decisions have resulted in the rule of law that induced societal changes, opposed even by many elected lawmakers of the time. For example, after the 1954 Supreme Court decision that abolished racial segregation,[30] more than 100 members of Congress criticized the decision as an “abuse of judicial power.” [31]

Many constitutional scholars are of the view that the Justices should adhere to the intent and spirit of the Constitution, and should not engage in judicial activism. The opposite of judicial activism is judicial restraint. On one hand, under the Constitution, the Justices cannot become policy- or lawmakers. The opinions written must not be the personal policy preferences of the Justices -- they cannot strike down a State statute as unconstitutional simply because they personally disapprove of its public policy or simply want to make new law. On the other hand, there are scholars who urge that moral reasoning should be an essential part of constitutional interpretative methodology for the Supreme Court.[32]

  

D.    INDIVIDUAL LIBERTIES AND THE BILL OF  RIGHTS

A substantial part of U.S. constitutionalism lies in the protection of individual rights against government power, derived not only from the textual Constitution but also by the Supreme Court’s case law.  Article III’s federal Judicial Branch becomes the guardian of Americans’ individual rights. This body of “individual rights” jurisprudence bears the following characteristics:

1)  Source of rights: Textually, the Constitution does not grant individual rights. It only guarantees and secures certain fundamental rights for the individuals against governmental intrusion.[33] Carried forward from the Declaration of Independence is the notion that these are inalienable birthrights of all humankind.[34] The Bill of Rights is thus predicated upon the notion that civil liberty is not a matter of legislative grace, but instead is inherent in human nature and, therefore, is constitutionally protected.

2)   The “State Action” Doctrine:  Neither the original Constitution nor the Bill of Rights protects private citizens from private citizens. That is the domain of State tort or criminal law within the sovereign  power of the States. To create a constitutional dispute, the private wrongdoer must act “under color of law,” engage in public functions traditionally and exclusively performed by  the government, conspires with or is facilitated by the state, such that the wrongdoer can be described as a state actor (“state” here means government, both federal and the sovereign States). This is called the “State Action Doctrine.” (The only exception is the 13^th Amendment, which prohibits slavery whether or not it is committed by government or private actors.) 

3)  The Incorporation Doctrine:  Originally, the Bill of Rights applied only to the federal government. (Each State has its own Constitution and statutory law, a Governor, a bicameral Legislature, and a Judiciary.) In 1868, after the Civil War, the 14^th Amendment was ratified. It directly addressed the States. In the 1960s, the U.S. Supreme Court began interpreting the 14^th Amendment’s Due Process and Equal Protections Clauses to include the fundamental rights of the Bill of Rights, thereby making them applicable to the States. This is called the “Incorporation Doctrine.” The test for incorporation is whether the right is “fundamental to the American scheme of justice,” whether they are “implicit in the concept of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” [35]  (This means that the Justices have gone beyond the plain text of the Constitution and looked at American history and traditions to determine what is fundamental and what is not).  

Today, much of the Bill of Rights has been incorporated to the States via the 14^th Amendment. Accordingly, a substantial part of Supreme Court jurisprudence on individual liberties has been developed through the Court’s opinions on the Due Process Clause of the 14^th Amendment. The source of federal rights for Due Process of law, however, is the 5^th Amendment. Both the 5^th and the 14^th Amendments contain a “Due Process Clause,” but the 5^th Amendment does not have an “Equal Protection Clause” like the 14^th Amendment. In other words, the Bill of Rights (the first 10 Amendments) does not contain an Equal Protection Clause, since the only express Equal Protection Clause is found in the 14^th Amendment. The Equal Protection Clause of the 14^th Amendment has been read into the Due Process Clause of the 5^th Amendment, making Equal Protection applicable to the federal government by way of the “Reverse Incorporation Doctrine” (i.e., the Incorporation Doctrine (federal-to-State) applied in reverse (State-to-federal)).

  

4)  Due Process and Equal Protection jurisprudence: Due Process from both the 5^th and the 14^th Amendments does not absolutely guarantee “life, liberty, and property”; it guarantees only “process” before a person is deprived of those interests by the government, national or State.[36] Equal Protection does not mean that the government has to treat everybody the same way. For example, murder convicts are treated differently. Equal Protection under the Constitution requires only that similarly situated persons are treated equally.[37] (Here, to review the constitutionality of government action, although the Highest Court is part of the federal government, it is supposed to be independent; so the independent Justices step outside of the government in order to adjudge whether the government action challenged is constitutional.)

a) Due Process: Via the Doctrine of Judicial Review, the U.S. Supreme Court has formulated the standards for Due Process of law and read a ‘substantive” requirement into the meaning of Due Process -- the Court distinguished Procedural Due Process from Substantive Due Process.  Government action must satisfy both; otherwise, they fail the constitutional test and should be invalidated.

Procedural Due Process guards against arbitrary and unreasonable government action, requiring reasonable notice and a meaningful opportunity to be heard before an individual is deprived of life, liberty, and property. Substantive Due Process requires that the challenged governmental action (for example, a State or federal legislation) satisfy one of three types of Judicial Review.[38] Case  by case, the Court decides which type of review will be accorded to the government action  or regulation under challenge.  The Court has defined the three types of review based on the following key English words that establish the standards for constitutionality.

(i)   The lightest and minimal form of Judicial Review (the “Rational Test”) requires that the legislation has a rational basis that would make it appear reasonable, i.e., the legislation is rationally related to a purpose that is within the legitimate exercise of governmental police power (such as health, safety, and general welfare legislation). (This is the lowest standard of review, typically accorded to the review of economic regulations).

(ii)    The highest standard and strongest form of Judicial Review requires strict scrutiny of the legislation (the “Strict Scrutiny Test”). The challenged government action  or legislation is presumed to be unconstitutional. That means the burden of justifying its existence is shifted to the government to establish that its action/legislation is narrowly tailored to constitute the least restrictive means to achieve the governmental end  -- the legislative is the necessary means to serve a compelling governmental interest

The Supreme Court has accorded Strict Scrutiny review to deprivation of “fundamental constitutional rights” from the Bill of Rights.  Fundamental rights include, inter alia, the part of the Bill of Rights that imposes constitutional criminal procedure (the 4^th, 5^th, 6^th, and 8^th Amendments). First Amendment liberties, as fundamental rights, are so highly guarded in America that even hate speech or unpopular speech is tolerated.[39] Prior restraint of speech, in particular, is presumed to be unconstitutional and viewed with suspicion under the Strict Scrutiny standards.[40] 

But even so, fundamental civil liberties can also be regulated so long as the government action sustains Strict Scrutiny and passes the constitutional standards established by the Court. For example, the Supreme Court has devised a balancing test that distinguishes religious belief, which is protected, from religious conduct, which can be subject to state regulation. Similarly, under the Supreme Court’s (judge-made) constitutional standards, the government can regulate and prohibit certain types of speech to the extent defined and permitted in Supreme Court jurisprudence.[41] Constitutionally protected fundamental rights also include rights that have been read into the Constitution via the 5^th and the 14^th Amendment, or rights that are found to be necessary and corollary to other fundamental rights. These implied fundamental rights include the right of association, the right to privacy, and the right to travel. [42] 

(iii)      In the intermediate level of judicial review, the government purpose advanced by the action or legislation must be important – something between legitimate and compelling, and the legislation challenged must be substantially related to the governmental purpose – the means to achieve the end must be something between reasonable and necessary.

b)  Equal Protection:  The Equal Protection Clause of the 14^th Amendment (implied in the 5^th Amendment by reverse incorporation) has been used to invalidate government  classifications that burden the exercise of fundamental rights by a certain class of persons. Persons in the “protected class” have historically been disadvantaged because of their immutable characteristics such as race, national origin, or gender.  Thus, the Supreme Court treats race or national origin as a quintessential “suspect class” of victims who historically may have suffered from unconstitutional deprivation of fundamental rights.  

The same three tiers of Judicial Review used in the Due Process analysis also apply to Equal Protection analysis in discrimination cases that raise constitutional challenges. Basically, the Court employs a “purpose-and-means” test to ascertain the constitutionality of governmental classifications. The test requires the Court to compare the means employed to the purpose that the government used to justify the classification -- government regulation may be struck down as an under-inclusive or over-inclusive means to achieve the governmental purpose identified.  Examples of the application of the three types of review are:

(i)        The least rigorous “Rational” standard of review: typically accorded to, for example, age discrimination and welfare regulations (the poor is not a protected suspect class, and entitlement to education is not a fundamental right secured by the Constitution).

(ii)       The most rigorous “Strict scrutiny” review:  accorded to classifications based on race.  

(iii)      The “Intermediate” review (based on “in-between” terminologies for standards): typically accorded to classifications based on gender, illegitimacy, and alienage.[43] Because of this indeterminate, “in-between” nature, the outcome of cases reviewed under this “intermediate” level is often less predictable.

IV.  CONCLUSION

The U.S. Constitution establishes a regime that Abraham Lincoln described as a “government of the people, by the people, and for the people.” It evidences not only the supremacy of the rule of law as a continuing reality, but also the will of the American people as a continuing aspiration. That will was expressed not only at the time the Constitution was originally was written (a concept in American constitutionalism called the interpretation of “the founders’ intent”), but also as of today and tomorrow, because the Constitution has been, and will continue to be, interpreted in judicial opinions. For example, once the Bill of Rights provided legal protection for white men only, excluding men of color and women. Since then,  it has taken additional Amendments and numerous Supreme Court cases to extend the same rights to all U.S. citizens. The Doctrine of Judicial Review is eventually the safeguard of American constitutional principles, unless and until the American people (via the federal Congress and the representatives of their States) choose to amend their federal Constitution as an expression of their will.

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[1]    [An abbreviated version of this article has been delivered  as a speech for and during Ms. Duong's Fulbright appointment, academic year 2011-12.] 

[2]   Madison became President of the United States. He is commonly referred to as the “Father of the Constitution.” Madison identified the central constitutional dilemma:  how to empower the government sufficiently for its tasks while limiting it from intruding into the individual’s liberties. 

[3] A note should be made regarding the relationship between international law and U.S. domestic law. International law is considered the law of the globe. But, in the U.S., a treaty must be ratified domestically in order to have domestic application. Once ratified, a treaty has the same level of law as a federal statute. When there is a conflict between a treaty and a federal statute, the later in time controls. Because the Constitution is silent on how to end a treaty, the U.S. Congress can effectively enact a statute whose effect is to terminate a treaty previously entered into by the President. At the same time, the U.S. Supreme Court created by the Constitution, the highest court in the country, has interpreted customary international law and made it part of American jurisprudence.  

[4] Founding documents preceded the Constitution were the 1776 Declaration of Independence and the 1781 Articles of Confederation. At the 1787 Constitutional Convention, State delegates resolved to revise the Articles of Confederation by drafting the new Constitution. America’s founding fathers and Framers of the Constitution – the political and legal architects of the country – called for a foundation built upon the rule of law and republican theory. 

[5] In this paper, “State” (capitalized) refers specifically to the sovereign States of the Union; “state” (lowercase) refers generally to statehood or nationhood represented by a government, both federal and State. 

[6] The 14^th Amendment also has a Privileges and Immunities Clause, which protects federal citizenship. For example, the 14^th Amendment’s Privileges  and Immunities Clause applies to and protects “recently-moved” residents against any overreaching by their new home State.      

[7] For example, the U.S. Supreme Court struck down a State law that limited bar admissions to State residents, as such law discriminated against non-residents and impeded travels. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).   

[8] In the history of the U.S., approximately 10,000 bills have been introduced in Congress to amend the Constitution. Only 27 received the sufficient three-fourths of State ratification.  All 27 were proposed by Congress. The most recent proposed amendment that failed was the Equal Rights Amendment of 1972 aimed to equalize gender relations in America.

[9] Due to the history of the United States as a country of immigrants seeking to avoid religious persecution, as well the vigorous debates that went into the establishment of independence and  nationhood, First Amendment liberties are generally considered the American quintessential and preferred fundamental rights, receiving extraordinary judicial protection in court. Supreme Court jurisprudence has carved out certain narrowly drawn exceptions for government regulation of these liberties, so long as such regulation is necessary to further a compelling state interest, under a “Strict Scrutiny” standard of judicial review.        

[10] These two “religion” clauses are combined in one sentence and have been criticized by a number of scholars as being in tension with each other: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  U.S. CONST. amend. I.  Article VI, Clause 3 of the Constitution also prohibits the use of any “religious Test as Qualification for any Office or public Trust under the United States.” The Constitution thus separates church from state, and establishes the United States as a secular government. 

[11] However, Congress and the States can enact gun control laws although those laws may generally be  unpopular or controversial in American society.

[12]  Property rights are not defined by the Constitution. Their source is in State law.

[13] Unconstitutional government taking is distinguishable from permissible government regulations that affect private property as an exercise of the State’s police power. The Constitutional analysis, therefore, must resolve whether such regulation amounts to an unconstitutional taking in violation of the 5^th Amendment.  Zoning law that imposes conditions on private property to further substantially a legitimate government purpose has been upheld as constitutional.  

[14] For example, death penalty may not be permitted for the crime of rape, Coker v. Georgia, 433 U.S. 584 (1977), but a State may follow constitutional criminal procedures to impose capital punishment on a convict found guilty of murder. Gregg v. Georgia, 428 U.S. 153 (1976). 

[15]  However, people can still sue State officials, who may still enjoy common-law immunity. The 11^th Amendment immunity applies only to private causes of action for damages, and does not prevent suits brought by the United States government or another State.

[16]  This very important Amendment states: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States (the “Privileges and Immunities Clause”); nor shall any State deprive any person of life, liberty, or property without due process of law (the “Due Process Clause”); nor deny to any person within its jurisdiction the equal protection of the laws.”(the “Equal Protection Clause”). U.S. CONST. Amend XIV, Section 1.

[17] In the Bill of Rights, the 2d and 3d Amendments have not been the subject of U.S. Supreme Court holdings making those Amendments applicable to the States. The “Grand Jury Clause” of the 5^th Amendment, the 7^th Amendment’s civil jury trial requirement, and the 8^th Amendment’s prohibition against excessive fines have not been incorporated.  By their nature, the 9^th and 10^th Amendments do not need to be incorporated to the States. Accordingly, federal protection and State protection under the Bill of Rights do not exactly line up, although virtually the protection of fundamental liberties from the Bill of Rights is substantively the same at both federal and State levels.

[18]   See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

[19]  The same or similar “Necessary and Proper” Clause is found in the 13^th, 14^th, 15^th,, 19^th , 24^th and 26^th Amendments, authorizing Congress to enforce those amendments by appropriate legislation. More recent amendments simply authorize Congress to enforce the measure by “appropriate legislation.” McCulloch v. Maryland, 17 U.S. 316 (1819) (the federal government’s power to create a Bank of the United States was held constitutional as “appropriate” although the Bank might not be “necessary”).  

[20]  The President’s inherent and exclusive power over foreign relations is immense. The President can enter into agreements via Executive Orders that have the force and effect of a treaty without ratification by Congress.  Such an Executive Agreement automatically trumps state laws under the Supremacy Clause and, if such an Agreement is the result of the President’s exclusive power over foreign relations, it will trump prior inconsistent congressional enactments without violating the Separation of Powers doctrine. United States v. Curtis-Wright Export Corp., 299 U.S. 304 (1936); United States  v. Pink, 315 U.S. 203 (1942).  

[21] The “War Power” was a subject of controversy, especially during and after the Vietnam War.

[22] In the history of the U.S., there have been Presidential candidates who won the electoral votes while losing the popular votes.

[23]  The sovereign States each have their own judicial branch.  State judges adjudicate State law issues at three levels:  trial courts, appellate courts, and one Supreme Court. Because of the Supremacy Clause and the fact that the 14^th Amendment protection of federal citizenship and the Bill of Rights has been incorporated to the State level by U.S. Supreme Court holdings, State courts may have concurrent jurisdiction with the federal bench over federal constitutional matters, which may also involve the State Constitution. Often, State procedural law may allow for the federal constitutional issues to be “certified” or referred to the federal court for adjudication. Further, the U.S. Supreme Court has the final appellate jurisdiction to reviews holdings of State Supreme Courts on federal constitutional matters.     

[24] In the history of the U.S., there have been 7 constitutional Amendments ratified to reverse various Supreme Court holdings.

[25]  The Preemption Doctrine consists of:

(i) “conflict preemption” (applies when it is physically impossible to comply with both federal and State laws on the same subject that falls under the power delegated to the federal government, making the State law an obstacle to the federal objective; in that case, the federal objective is supreme), and

(ii) “field preemption” (applies where the federal scheme is so complete and pervasive  under the delegated federal power, reflecting a Congressional intent to govern the entire field and hence leave no room for the state to regulate). See Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) (regulation of nuclear facilities was preempted by federal law, although State tort law could supplement the federal scheme for personal injury remedies). Other areas where the Supreme Court has applied federal preemption includes immigration policy and foreign commerce.

[26]  U.S. Term Limit, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

[27]  Congress has consented to a number of interstate compacts such as The New York Port Authority and the Colorado River Compact formed as a flood control measure.

[28]  Interestingly, it was the French philosopher Alexis de Tocqueville who attributed the importance of the U.S. Supreme Court to its power of “opinion-writing”:  “The peace, prosperity, and the very existence of the Union rest continually in the hands of these [nine] judges.  Without them the Constitution would be dead letter;…their power is immense, but it is power springing from opinion…”  [emphasis added].    

[29]   An example of the Court deciding its own role or scope of  power under the “Judicial Review Doctrine” was demonstrated in Marbury v. Madison, 5 U.S. 137 (1803). There, the Court struck down a provision of the Judiciary Act giving the Court original jurisdiction in a case where the Constitution has limited the Court’s power to appellate jurisdiction. The Court declared such provision to be unconstitutional.  In other words, the Court invalidated the very Congressional act that gave the Court more power than what the Court believed the Constitution allowed.

[30]   Brown v. Board of Education, 347 U.S. 483.      

[31]  If the Supreme Court set the trend and established landmark for racial equality, then Congress eventually followed suit.  Accord Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (prohibiting racial discrimination in hotel accommodations that qualitatively and quantitatively diminish interstate travel). Later, under its “Commerce Clause” power, Congress enacted “Civil Rights statutes” to remedy and eradicate racial discrimination in America against state and private actors These “Civil Rights statutes” offer a civil enforcement and remedial mechanism to redress violations of constitutionally protected civil liberties.        

[32] Stare decisis, the principle of legal decision-making that requires a court to follow case precedents in a common law system, is a critical feature of American appellate jurisprudence. In constitutional law, stare decisis has a weaker position because the Supreme Court’s case-by-case interpretation of the Constitution cannot be higher than the textual Constitution itself – it is  the Constitution, not federal common law, that is the supreme law of the land. The Supreme Court can also overturn its own prior decisions.

[33]   For example, the First Amendment starts with “Congress shall make no law…”

[34]   “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” THE U.S. DECLARATION OF INDEPENDENCE (1776).

The notion of inherent rights is also evidenced by the 9^th and 10^th Amendments, which affirm that the Constitution cannot displace the people’s existing rights or rights preserved for or retained by the people (whether by natural law or at common law), and, hence, the Constitution cannot be used against the people. The notion is contrary to the Magna Carta for England or the thoughts of Rousseau for France --  both sources center upon a specific grant of rights to the people. 

[35] Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Palkko v. Connecticut, 302 U.S. 319, 325 (1937); Moore v. East Cleveland, 431 U.S. 494 (1977). 

[36]   Both the 5^th and the 14^th Amendments speak of the life, liberty and property of a “person.” “Privileges and Immunities Clauses, however, are limited to citizens.

[37]   For example, white and black children must be treated the same because they are similarly situated.  Brown v. Board of Education,  347 U.S. 483 (1954).             

[38]   United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938).

[39]   Cohen v. California, 403 U.S. 15, 20 (1971).

[40] New York Times vs. the United States, 403 U.S. 713 (1971) (denying the Nixon Administration’s request for order enjoining the publication of top-secret documents about U.S. policy in Vietnam).

[41]  The following  types of  speech are not protected or can be regulated:

(i) Defamation: Speech cannot be used to defame and injure others, and hence liability can be imposed under State defamation tort law. Exceptions are made for the press: the media can make false and defamatory speech about public officials, public figures, or matters of public concerns, so long as the falsity is committed without “actual malice.” Actual malice, therefore, establishes the constitutional standard of liability for the press. The media defendant can raise this “actual malice” constitutional defense in civil defamation lawsuits, and the defamation plaintiff must establish the media’s “actual malice” with clear and convincing evidence, the highest burden of proof for a plaintiff in civil suits. New York Times v. Sullivan, 376 U.S. 254 (1964). The press can also raise the same constitutional defense in “invasion of privacy” or “infliction of emotional distress” tort suits, as these State causes of action are akin to defamation.

(ii)  Obscenity: held to be not protected speech because obscenity does not have any redeeming social value. Roth v. United States, 354 U.S. 476 (1957) (defining obscenity as what “the average person applying community standards“ would find as work that appeals to prurient interest).  More recent Supreme Court decisions have dealt with the issue of obscenity on the internet and the State’s “compelling interest” in protecting children against such material.  See, e.g., United States v. American Library Association, 2003 WL 21433656 (upholding federal statute requiring public libraries to install software to block pornography from minors).

(i)     “Fighting words” (i.e. those personally abusive epithets which inherently are likely to invoke a violent response).

(ii)   Speech that creates a “clear and present danger” (such as a falsely shouting “Fire” in a crowd and causing panic).  Schenck v. United States, 249 U.S. 47 (1919) (the “Clear and Present Danger” doctrine).

(iii)  Advocacy for the use of force or lawlessness.  Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

(iv)   Certain types of commercial speech. Central Hudson  Gas  & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

[42]    The right of association is not mentioned in the First Amendment in so many words, but has also been read into the First Amendment. The right to travel has also been considered a fundamental right, based on a combination of the Commerce Clause, the Privileges and Immunities Clauses of Article IV and the 14^th Amendment, and the Due Process Clauses of the 5^th and 14^th Amendments. The right to privacy has similarly been read into the Constitution, via the Due Process Clause of the 5^th and the 14^th Amendments. The right to privacy is implicated, and the Due Process Clause places limits on the state’s power, when the state wants to regulate a person’s basic and personal decision-making about family, parenthood, bodily integrity, dignity and autonomy. Examples: 

•Pregnancy: A woman has a constitutional right to terminate a pregnancy and State laws criminalizing her cannot be upheld. Roe v. Wade, 410 U.S. 113 (1973). The State, however, is not required to pay for her costs. Harris v. McRae, 448 U.S. 297 (1980), although it may not, either by purpose or effect, place an undue burden on her decision.  

•Intimacy:  No legitimate state interest supports a criminal statute that prohibits two consenting adults to engage in certain sexual practices in the privacy of their home. Lawrence v. Texas, 2003 WL 21467086 (2003).

•Right to die: A competent person has a constitutionally protected liberty to refuse unwanted medical treatment, although the State can establish procedural safeguards when that person’s decision is made by a surrogate. A State can prohibit assisted suicide without violating the patient’s fundamental right of liberty. Washington  v. Gluckberg, 521 U.S. 702 (1997). 

These highly personal decisions are deemed to be so important to individual liberty that they deserve extraordinary judicial protection via the Strict Scrutiny test.    

[43]   See, e.g., Plyer v. Diaz, 426 U.S. 67 (1976) (a state law that denied free public education to children of aliens was held invalid).

Gender-based government classification has been considered a “quasi-suspect” classification, analyzed under this “intermediate” level of scrutiny.