Malcolm Rivera
The US Constitution is the fundamental law of the United States, and it can only be changed by an extraordinary legislative process of national proposal and state ratification. While the Supreme Court's power of judicial review allows it to interpret the Constitution and rule on the constitutionality of government actions, there have been concerns about the Court's ability to limit or take away constitutional rights. In the past, the Supreme Court has been accused of rolling back certain constitutional rights, such as in the Lochner v. New York case in 1905, which dealt with the right of contract and employment regulations. More recently, the Supreme Court's leaked draft opinion in 2022 indicated its intention to overturn Roe v. Wade, which established a constitutional right to abortion in 1973. These instances have sparked debates about the role of the Supreme Court in interpreting and potentially limiting constitutional rights.
| Characteristics | Values |
|---|---|
| Amendments | The Thirteenth Amendment (1865) abolished slavery and involuntary servitude. The Fourteenth Amendment (1868) granted citizenship to former slaves and all persons under US jurisdiction. |
| Supreme Court rulings | In 1905, Lochner v. New York found that a law forbidding bakers from working more than 60 hours a week interfered with the "right of contract." In 1937, West Coast Hotel Company vs. Parrish ruled that a Washington state minimum wage law for women did not violate due process. In 1990, Employment Division v. Smith found that the First Amendment's Free Exercise Clause did not contain religious exemptions to "generally applicable" laws. |
| Presidential power | Some argue for a constitutional amendment granting presidents universal "fast-track" authority to improve policymaking efficiency. |
| Congress | Critics argue that Congress is ineffective due to polarization and its structure, which prioritizes local interests over national ones. |
| Judicial review | The Supreme Court has developed a system of self-limiting its power of judicial review by defining what constitutes a "justiciable question." |
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What You'll Learn
The Supreme Court's power to overturn constitutional rights
The US Constitution was designed to be ""counter-majoritarian", which means that it goes against majoritarianism and, in many ways, democracy. This was intentional, to prevent majorities from taking over the government. However, this design can be frustrating for people who care about certain issues, such as abortion rights.
The Supreme Court has tremendous power and interprets the Constitution, which cannot be overturned. However, Congress can overturn decisions made by the Supreme Court if they are based on interpreting federal statutes. An example of this is the Stop Corporate Capture Act, which aimed to reinstate the Chevron precedent, where federal agencies were entitled to some deference when interpreting and implementing congressional statutes.
The Supreme Court can also limit or overturn constitutional rights. For example, in the case of Sherbert vs. Verner in 1963, the Supreme Court ruled that there was a right to religious exemption from laws under the Free Exercise Clause. However, in a later case, the Court decided that Oregon could deny unemployment benefits to employees who were fired for taking illegal drugs for religious purposes, reversing the previous decision.
Another example is the Lochner v. New York case in 1905, where the Supreme Court found that a law forbidding bakers to work more than 60 hours a week or 10 hours a day interfered with the "right of contract", linking it to the 14th Amendment's due process clause.
The Supreme Court has also struck down executive orders on the grounds that they are unconstitutional. For example, in Ex parte Milligan (1866), the Court held that Lincoln's General Order No. 100, which provided for trial by military commissions for civilians alleged to have aided the Confederacy, violated several constitutional provisions, including the right to a jury trial in criminal cases.
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The Thirteenth Amendment and abolition
The Thirteenth Amendment to the US Constitution, passed by Congress on January 31, 1865, and ratified on December 6, 1865, abolished slavery in the United States. The amendment changed a portion of Article IV, Section 2, stating: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
The immediate impact of the amendment was to make the entire pre-war system of chattel slavery in the US illegal. The abolition of slavery was felt quickly, and when the Thirteenth Amendment became operational, the scope of Lincoln's 1863 Emancipation Proclamation was widened to include the entire nation. While the Emancipation Proclamation had declared that "all persons held as slaves within any State...shall be then, thenceforward, and forever free," it did not end slavery in the nation as it only applied to areas of the Confederacy in a state of rebellion and not even to the loyal "border states" that remained in the Union.
The Thirteenth Amendment is one of three Civil War amendments, along with the Fourteenth and Fifteenth Amendments, that greatly expanded the civil rights of Americans. The Thirteenth Amendment, in particular, carried out the constitutional declaration "that each citizen of the United States shall have equal privileges in every other state." It protected citizens' rights under the First Amendment and Comity Clause to freedom of speech, freedom of the press, freedom of religion, and freedom of assembly.
The road to the ratification of the Thirteenth Amendment was not without its challenges. During the Presidential Reconstruction, President Andrew Johnson personally oversaw the creation of new state governments throughout the South. He hoped to prevent deliberation over whether to re-admit the Southern states by accomplishing full ratification before Congress reconvened in December 1865. The amendment was passed by the Senate in April 1864, but the House initially did not. With the ratification by Mississippi in 1995 and its certification in 2013, the amendment was finally ratified by all states that existed at the time of its adoption in 1865.
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The role of Congress in policymaking
Congress is the Legislative Branch of the US government, elected by and answerable to the American people. While the US Constitution does not grant Congress the power to establish foreign policy, it does allow Congress to oversee it through law and the approval of war and treaties. Congressional committees, such as the Foreign Relations Committee, lead foreign-policy legislation and debate within the Senate. They also hold confirmation hearings for high-level positions in the Department of State.
Congressional committees play a fundamental role in the policymaking process. Once a bill is introduced by a Congressman, it is filtered through a committee that will issue a report to the full chamber if they recommend it be considered further. The Rules Committee, a committee within the United States House of Representatives, is often regarded as the most important Congressional standing committee. The Rules Committee controls the flow of legislation from committees to the full House by setting out guidelines and rules for floor debate and amendments on legislation.
The Bureau of Legislative Affairs facilitates communication between State Department officials and Members of Congress and their staff. They work closely with authorizing, appropriations, and oversight committees of the House and Senate, as well as individual Members who express interest. The Secretary of State also coordinates with Congressional committees with jurisdiction over State programs to provide appropriate information and support for the passage of relevant foreign policy legislation and appropriations.
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The Ninth Amendment and fundamental rights
The Ninth Amendment (Amendment IX) to the United States Constitution addresses rights retained by the people that are not specifically mentioned in the Constitution. It is part of the Bill of Rights, which encompasses the first ten amendments to the Constitution, protecting essential democratic rights, including the freedoms of speech and religion.
The Ninth Amendment was introduced during the drafting of the Bill of Rights when some American founders became concerned that future generations might argue that a right did not exist because it was not listed in the Bill of Rights. The Amendment has rarely played a role in US constitutional law and was often considered "forgotten" or "irrelevant" until the 1980s.
The Ninth Amendment protects unenumerated rights, preserving liberties and safeguarding individuals against governmental overreach. It works with the Tenth and Fourteenth Amendments to protect individual rights. While the Tenth Amendment reserves "the people's" rights, the Fourteenth Amendment grants citizenship to all persons born or naturalized in the US and prohibits states from infringing on fundamental personal liberties.
The Ninth Amendment has been interpreted to protect fundamental rights emerging from enumerated liberties. For example, in Roe v. Wade, the US Supreme Court held that a right to privacy, founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action, was broad enough to encompass a woman's right to terminate her pregnancy. This right to privacy has also been linked to the Ninth Amendment's reservation of rights to the people.
Legal professionals and scholars debate the meaning of the Ninth Amendment. Some argue that it safeguards fundamental liberties not explicitly stated in the Constitution, endorsing a presumption of liberty. Others, like the late Justice Antonin Scalia, frowned upon the Court's recognition of unenumerated rights.
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The power of judicial review
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to assess colonial legislation and its validity under the colonial charters. There were also several instances of state court invalidation of state legislation on the grounds of inconsistency with state constitutions. Practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation.
Article III, Section I of the Constitution establishes the federal judiciary and states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Congress first exercised this power in the Judiciary Act of 1789, which created a Supreme Court with six justices.
Constitutional judicial review is often considered to have begun with the assertion by John Marshall, fourth chief justice of the United States, in Marbury v. Madison (1803). Marshall asserted that the Supreme Court had the power to invalidate legislation enacted by Congress. This assertion was not based on the text of the Constitution but on the Supreme Court’s own ruling and the absence of an effective political challenge.
The Supreme Court, as the highest court in the land, is the court of last resort for those seeking justice. Its power of judicial review plays a crucial role in ensuring that each branch of government recognizes the limits of its power. It protects civil rights and liberties by striking down laws that violate the Constitution and sets limits on democratic government by preventing popular majorities from passing laws that harm minorities.
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Frequently asked questions
Yes, there have been instances where amendments to the US Constitution have replaced or removed previous parts. For example, the Thirteenth Amendment (1865) abolished slavery and involuntary servitude, rendering several parts of the original Constitution inoperative.
While it is uncommon, there have been instances where the Supreme Court has limited or rolled back constitutional rights. For example, in the 1905 case of Lochner v. New York, the Court ruled that a law forbidding bakers from working more than 60 hours a week interfered with the "right of contract," which was linked to the 14th Amendment's due process clause.
Yes, the Supreme Court can refuse to enforce anything that conflicts with the Constitution. The Court has the power of judicial review, which allows it to interpret the Constitution and determine whether laws or government actions are constitutional.
