Copyright (c) 1997 Louisiana Law Review
Louisiana Law Review
57 La. L. Rev. 1019
THE 25TH JOHN M. TUCKER, JR. LECTURE IN CIVIL LAW: An Overview of
for Constitutionality in the United States *
* This article is reproduced from the 25th John H. Tucker, Jr. Lecture in Civil
Law given by the author at the Paul M. Hebert Law Center on October 24, 1996,
with minor changes to the text and the addition of referenced material.
, Associate Justice, Supreme Court of the United States.
Before turning to the text of my lecture, I would like to acknowledge why I am
here. I have come to this school as Alvin B. Rubin visitor, to remember a judge
of extraordinary talent and humanity, a graduate of Louisiana State University
Law School, a teacher here from 1946 until 1989. I count it my great good
fortune to have known Alvin as judge, colleague, and friend. I appeared before
him in 1973, in his days on the District Court, we served together on the ABA
Journal Board of Editors, and I sought his counsel in my starting days on the
Judge John Minor Wisdom said of Judge Rubin, altogether accurately in my
judgment, that he ranked with Holmes, Brandeis, and Cardozo, Learned Hand and
Henry Friendly, as one of the great federal judges of all times.
n1 I cannot improve on Judge Wisdom's words, so I will quote them verbatim:
"Lucky indeed are all Americans, of all races and creeds, that at a time and
place in our history when the United States Constitution was severely
challenged, Alvin Rubin was there to meet the challenge with his highly
developed sense of injustice."
For this lecture, I have prepared some remarks on the topic:
for Constitutionality--United States style. Tucker Lectures present civilian
perspectives, so I will include in these remarks some comparative sideglances.
I will start by reminding you that, unlike the single national court structure
and unitary codes common to most countries, the United States has well over
fifty judicial systems, each with its own substantive law to enforce. Puerto
Rico, the District of Columbia, and each state has its own two or three tier
court system. But there is for the nation one federal court system, with trial
courts dispersed throughout the territory of the United States, thirteen courts
of appeals in different regions of the country (only two of them--the Federal
Circuit and the D.C. Circuit--specialized to any degree), and one Supreme
Court. State systems vary in diverse respects--for example, some have elected
[*1020] means of selection astonishing to jurists in civil law systems), others have
appointed judges. In this talk, I will speak, primarily, of the federal court
The first appeal in the United States, in both state and federal systems, is
generally a matter of right. The Supreme Court, however, selects the cases it
will consider, and the Court is highly selective. The Court receives, nowadays,
over 7,000 requests for review in a year (7,487 were on the docket last Term);
of those thousands, the Court selects not more than 100 to hear and decide. The
great bulk of requests are denied, generally without comment. (On rare
occasion, however, a comment is in order. One recent example may have been
noticed by some in this audience. In the Hopwood case,
n3 involving race or national origin as a plus factor in admission to the
University of Texas Law School, I thought it appropriate to explain to the
public why we did not grant review (a reason in no way detracting from the
"great national importance" of the issue presented), and Justice Souter joined me in the view that an
explanation was due.)
n4 Taking cases from both federal and state courts, the Supreme Court tries to
limit its docket to the most important and turbulent federal statutory and
constitutional law controversies. And the cases it takes must be ripe, but not
moot--they must be fully developed, genuine controversies.
Federal judges in the United States, unlike judges in civil law systems, are
not part of a career bureaucracy; they do not train for judicial careers from
early days in their working lives, as do judges in France, Germany, Italy, and
Spain, for example. They are appointed by the President, subject to
confirmation by the Senate, at ages generally closer to fifty than forty. They
serve for life or, as Article III of the Constitution says,
"during good Behaviour." And the Constitution also provides that their compensation shall not be
reduced. Both life tenure and no reduction in pay are prime promoters of the
federal judiciary's independence from the executive and legislative branches.
As Judge Rubin commented, professional judges abroad, trained from
post-graduate days in a judicial career, are high-ranking, respected civil
servants, but traditionally, they have not been endowed with the independence
or the law-development functions entrusted to life-tenured judges in the United
United States Judges are drawn from all fields of legal endeavor--appointees
may be practicing lawyers, law teachers, government officials, even members of
Congress, and sometimes judges of state courts or lower federal courts. Taking
my current colleagues as examples, three of us were once full-time law teachers
(Justices Scalia, Breyer, and me), six formerly served on a United States Court
of Appeals (Justices Stevens, Scalia, Kennedy, Thomas, Breyer, and me). Justice
O'Connor was a state court judge and, before that, Speaker of the Arizona State
[*1021] Senate. Justice Souter was his State's Attorney General and later sat on New
Hampshire's Supreme Court. The Chief once worked in the Justice Department, as
head of the Office of Legal Counsel. The Chief and Justice Stevens,
particularly, engaged for several years in the private practice of the law.
We have no tribunal in the United States comparable to the adjudicatory
section of the French Conseil d'Etat, no discrete Supreme Administrative Court,
only the ordinary courts of the judiciary, courts with authority to adjudicate
both private and public law controversies. We also have an all-purpose bar. The
barrister/solicitor distinction not yet abandoned in England never took hold in
the United States. Nor have we ever had anything akin to the French
avoue/avocat division of labor. A match for our all-purpose bar, we have an
all-purpose judiciary. With some notable exceptions--as I just mentioned, the
Federal Circuit and, to a lesser extent, the D.C. Circuit--federal courts are
not specialized tribunals; typically, they are generalist courts, and none of
their members sit, as continental judges do, in sections divided by subject
I turn now to the way in which courts in the United States control legislative
and executive action for constitutionality. In United States Chief Justice John
Marshall's famous 1803 decision, Marbury v. Madison,
n6 judicial review for constitutionality is justified by the obligation courts
have, when deciding particular controversies, to enforce the entirety of the
law, including, when there is a conflict, the supreme law of the land, the
Constitution of the United States. Just as courts must interpret statutes and
prior decisions in order to apply them in particular cases, so the courts
inevitably must interpret the Constitution, jurists in the United States
continue to maintain; for the meaning of the Constitution's majestically
general clauses, when considered in a concrete context, is not always
self-evident. The Due Process Clause and Equal Protection Clause are prime
examples of the U.S. Constitution's majestic generalities. They instruct, with
sweeping simplicity, that government shall not deprive any person of life,
liberty, or property without due process of law, nor deny to any person the
equal protection of the laws. (Incidentally, the Due Process Clause is
contained in the Fifth and Fourteenth amendments. Where does the equal
protection principle first show up? What accounts for that?)
One may ask, why shouldn't judges accept, as a
"given," the constitutionality of any law passed by Congress. Every member of Congress,
after all, takes
[*1022] an oath to support and defend the Constitution, and is therefore obliged, in
the first instance, to decide whether his or her vote for a measure is
compatible with constitutional prescriptions. As Alvin Rubin reminded federal
and state officials:
"The Federal Constitution is a charter for all officials, federal and state. All
those who wield the power of the sovereign must be equally obedient to its
commands and faithful in insuring its protections."
n8 The additional check of
may be explained on several grounds.
One most practical ground is the recognition that what may seem constitutional
in the abstract may be revealed as unconstitutional when viewed in a specific,
contemporary world context--a context that the legislators who passed the law
foresaw only dimly, if at all. Social insurance laws providing benefits for
widows, not widowers, wives, not husbands may be an example. (One case holding
such a law unconstitutionally underinclusive involved a man, Stephen
n9 whose working wife, Paula, died in childbirth. The baby, named Jason, was born
alive and well. There were no benefits, under the statute, for a father who
wanted to care personally for his child; the benefits ran only to a mother.
Why, then Justice Rehnquist asked in that case, should the infant Jason lose
the chance for the care of the sole surviving parent just because that parent
happened to be Stephen, not Paula?
n10 The Supreme Court's 1975 judgment in that case effectively converted what was
a mother's benefit into a parent's benefit.)
In addition to that practical consideration--one knows it better when one sees
it--there is also the important idea (expressed by James Madison in Federalist
No. 10) that
"no man is allowed to be a judge in his own cause."
n11 Congress, one could conclude following that principle, cannot say with
finality whether its own acts are constitutional. That function is properly
committed to a separate department--a detached, impartial, life-tenured
judiciary that is not judging its own cause.
With that brief explanation of the justification for constitutional review by
courts, I will attempt to present some salient points about the way the power
is exercised in the United States. First, the authority is not lodged in one,
special tribunal. We have no Constitutional Court in the United States, no
court whose sole business it is to decide constitutional questions. Instead,
every court in the United States that exercises general jurisdiction--state
courts as well as federal courts--regards and applies the federal Constitution
as the supreme law of the land. Because constitutional review, United
States-style, is thus dispersed, the system has been called
"decentralized," to distinguish it from systems--such as Germany's, Italy's, or Spain's--in
which only one court is empowered to review legislation, or executive action,
No federal court can preview a law before it is promulgated, the way the
Constitutional Council (Conseil Constitutionnel) in France does under that
nation's 1958 Constitution. (Some state courts in the United States, I should
note, the highest state court of Massachusetts, for example, do have a preview
function--the state legislature may ask for advice on the consistency of a
proposed law with the state constitution, and the highest state court will
render the advice. And Louisiana's Supreme Court, in common with several other
state high courts, permits federal appellate courts to certify to it
"questions or propositions of [state law] which are determinative" of a case
"independently of any other questions involved in the case," if
"there are no controlling precedents in [state high court] decisions.")
A proposal was made at the U.S. Constitutional Convention in 1787 to establish
a Council of Revision; judges appointed to the Council would join with
executive officers in passing on a law's validity pre-enactment. But the
founding fathers rejected the idea of such a mixed tribunal. Federal judges,
the United States Constitution has been read to say, may hear only fully ripe,
live cases or controversies, and may not give advisory opinions. (The Hopwood
n13 is an example. The Court could not decide on the constitutionality of the
current University of Texas Law School admissions system, because plaintiffs
did not apply for admission and were not turned down under that system. And
everyone agreed that the prior system--the one under which plaintiffs had
applied and were rejected--was unconstitutional.)
Because judges in federal courts are empowered to adjudicate only full, ripe,
actual controversies, they may not respond to questions separated or abstracted
from a particular case, any more than they may preview legislation. They
cannot, in other words, deal with issues referred to them by other authorities,
as do the centralized Constitutional Courts in other nations--Germany, Italy,
and Spain, for example. Instead, as I said before, they must deal with whole
cases, and cases must travel the full course, from first instance through
appellate tribunals, with each court, in its turn, expressing judgment on all
issues, nonconstitutional as well as constitutional, that must be decided in
order to wrap up the entire case.
Although the system is decentralized and case specific, it is not chaotic--it
does not produce Tower of Babel results, thanks to the rule of stare decisis,
which instructs courts to follow prior decisions, specific decisions, and not
just what the French call jurisprudence constante, that is, a series of
n14 A decision gains force beyond the particular case and parties through the
doctrine of stare decisis. Each court generally respects its own prior
decisions, intermediate court of appeals decisions bind all lower tribunals in
the geographical region, and United States Supreme Court decisions set
precedent for all courts, federal and state, in cases arising under the
Constitution or laws of the United States.
In discussions of the relations between nation and states in the United
States, commentators often feature Supreme Court interpretations of the clause
of the Constitution authorizing Congress to regulate commerce, Article I,
Section 8. Through construction of that clause, the Supreme Court has not
reduced the states to positions of insignificance, as the Court's 1995 decision
in United States v. Lopez
n15 underscores. (Lopez held that Congress had exceeded its commerce power when it
defined as a federal offense possession of a firearm within 1,000 feet of a
school.) But, the Court has surely contributed to the building of one nation by
checking state attempts to favor themselves or their merchants to the detriment
of enterprises from other states. Judicial decisions in this line have secured
an open, national market within the United States. The countries and the Court
of Justice of the European Communities may have found some of that history and
case law instructive.
Constitutional review by courts in the human rights sphere is perhaps the most
lively issue as we move toward a new century.
n16 In the human rights domain, I would like to highlight some significant
differences in premises and approaches in the United States and in other
nations. Review for constitutionality in the human rights area became prominent
after World War II. That is certainly true in the United States, but it is also
true elsewhere. World War II cast grave doubt on the conviction that popularly
elected legislatures can be relied upon to protect human rights through law,
for much that was evil in that era had the stamp of approval by legislators.
Post-World War II constitutions in Germany and Italy, most conspicuously,
provide for constitutional review (although in special courts set apart from
the regular civil court hierarchy) as one protection against return to
autocratic government, and as a safeguard of individual rights.
Many jurists in the United States regard constitutional review by courts in
the human rights sphere as our nation's hallmark and pride. I agree, although
with considerable humility.
I recognize not only that judges are fallible and can make dreadful mistakes.
"dreadful mistake" category, many commentators mention the infamous 1857 Dred Scott decision,
n17 in which the United States Supreme Court used the majestic Due Process Clause
to justify one individual's right to hold another in bondage. I appreciate too
that in its declaration of human rights, the United States Constitution has not
been regarded as the model document for a modern state.
Recall that, although the United States is not old among the world's nations,
its Constitution is the oldest written Constitution still in use. It was
[*1025] 1787, a terse Bill of Rights was added to it four years later, and thereafter
it has been amended on only seventeen occasions. (More than half the world's
nations have constitutions written since 1970.)
The United States Constitution, as composed in 1787, is dominantly concerned
with the structure of the national government and the powers of its three
branches (legislative, executive, and judicial). The Constitution's text
details few individual rights. The Bill of Rights, added in 1791, is short and
has distinct gaps. For example, it contains, as we just noted, no express equal
protection of the laws guarantee applicable to federal legislation.
(Incidentally, how did it come about that an equal protection principle was
applied against the federal government?)
n18 Moreover, the Bill of Rights does not even declare our most basic rights.
Instead, it assumes they exist and simply tells the state to keep its hands
Our principal rights-declaring document, indeed, is not the 1787 Constitution
or the 1791 Bill of Rights; it is the 1776 Declaration of Independence, a
document not directly enforceable in court. The Declaration, in ringing tones,
"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 . . . ." Our founding fathers thought in the natural rights vein. Human rights
pre-dated the state. They were not the state's to confer. Rather, the state was
to be kept from trampling on them.
So our First Amendment does not say, even as the celebrated 1789 French
Declaration of the Rights of Man does:
"Every citizen may speak, write, and publish freely . . . ." Rather, it assumes that right for all humans (not only citizens) and simply
"Congress shall make no law . . . abridging the freedom of speech or of the
Modern human rights declarations in national and international documents do
not follow the United States Bill of Rights' spare, government-hands-off style.
Not only do contemporary declarations contain affirmative statements of civil
and political rights; they also contain economic and social guarantees, for
example, the right to obtain employment, to receive health care and free public
education, even--more grandly--the state's assurance of the conditions
necessary to the development of the individual and the family. Any current
effort at constitutional amendment to include such guarantees in the United
States, I am confident, would encounter defeat far more stunning than the 1980s
defeat of the proposed Equal Rights Amendment, which would have confirmed the
equal stature of men and women before the law.
It is not that the United States, today, is in fact less of a welfare state
than other nations that proclaim in a constitution state-assured rights to
life's basic needs. Indeed, more than half a century ago, President Franklin
Delano Roosevelt stated,
[*1026] in his January 11, 1944 State of the Union Message,
n19 that the nation had come to accept
"a second Bill of Rights" as
"Necessitous men are not freemen," Roosevelt said. While a world war was still raging, the President listed goals
for a lasting peace, his aspirations for all people,
"regardless of station, race, or creed": the right to a good education, to earn a living, to secure decent housing,
adequate medical care, protection from the economic fears of old age, sickness,
accident, unemployment. We cannot be content, FDR told the nation,
"if some fraction of our people--whether it be one-third or one-fifth or
one-tenth--is ill-fed, ill-clothed, ill-housed, and insecure."
Yet FDR, and all who shared his hopes for the future, understood that, in the
United States, we properly rely on legislation, not the Constitution, to
declare and implement safety-net protections. Implementation of such
protections is also accomplished by statute elsewhere. So the absence of
constitutional status for economic and social safeguards in the United States
lacks telling practical significance.
Were we to place economic and social security guarantees explicitly in the
Constitution, our style of constitutional review by courts would require
adjustment. Our courts, through judicial review, are accustomed to telling
government what it may not do; they are not, by tradition or staffing,
well-equipped to map out elaborate programs detailing what government must do.
(Of course, decisions that say,
"the State shall not," may indicate, in a general way, what the State shall or must do. In a very
recent case, for example, the Supreme Court said the State of Virginia could
not maintain a military college (Virginia Military Institute) for men only.
n20 That meant, if the State continued to maintain the college as a public
institution, the school would be obliged to admit qualified women.)
Foreign observers of judicial activity in the United States might raise a
question at this point. Is it not true that courts in the United States of
America more than occasionally map out precisely what the Executive must do?
What of the class actions that have been used as vehicles to obtain
institutional reform--court decrees regulating school systems, conditions in
prisons or mental hospitals, or the boundaries of electoral districts?
Litigation of this kind was in large measure needed, and was accordingly
invented, to end racial segregation in the United States. It is business the
courts do not like, and will undertake, when pressed by litigants, only in the
last resort, when the political branches--the legislature and the
executive--have failed to carry out their constitutional responsibilities,
despite notice, and ample opportunity to address the problem.
* * *
One last observation and then I will leave off. Judges in the United States
prize, above all, their independence from the political branches. I mentioned
[*1027] earlier that the founding fathers sought to secure that independence by
providing for tenure during good behavior and irreducible salaries. Judicial
independence is vital, our Chief Justice has explained, because the good judge
must strive constantly to do what is legally right even when the result is not
the one Congress, the President, or the
"home crowd" wants.
n21 The day we stop striving to do that is the day we should resign from office.
I can think of no more appropriate end to these remarks, or beginning to our
conversation, than to quote what Chief Justice Rehnquist said on the topic of
judicial independence in a recent address at American University:
The framers of the United States Constitution came up with two quite original
ideas--the first[,] . . . a chief executive who is not responsible to the
legislature as Chief Executives are under the parliamentary system. The
second[,] . . . the idea of an independent judiciary with the authority to
declare laws passed by Congress unconstitutional. The first idea--a President
not responsible to Congress--has not been widely copied by other nations . . .
. But the second idea--that of an independent judiciary with the authority to
finally interpret a written constitution--has caught on abroad, particularly
since the end of the Second World War. It is one of the crown jewels of our
system of government today.
Change is the law of life, and the judiciary will have to change to meet the
challenges which will face it in the future. But the independence of the . . .
judiciary is essential to its proper functioning and must be retained.
To that, I am confident the Honorable Alvin B. Rubin would join me in saying
n1 See John Minor Wisdom, Dedication: Judge Alvin Rubin,
52 La. L. Rev. 1371, 1371-72 (1992).
Id. at 1376.
Texas v. Hopwood, 116 S. Ct. 2581 (1996) (opinion respecting the denial of the petition for a writ of certiorari).
n5 See Alvin B. Rubin, Hazards of a Civilian Venturer in a Federal Court: Travel
and Travail on the Erie Railroad,
48 La. L. Rev. 1369, 1371 (1988).
5 U.S. 137 (1803).
n7 The equality principle, stated in the Declaration of Independence, received
concrete constitutional recognition in the Fourteenth Amendment, which became
"law of the land" in 1868. The original Constitution, in contrast, preserved the slave trade
until 1808 (U.S. Const. art. I,
§ 9), and required the return of fugitive slaves (U.S. Const. art. IV,
§ 2). On the absorption of an equality norm into the Fifth Amendment's Due
Process Clause, see
Bolling v. Sharp, 347 U.S. 497, 74 S. Ct. 693 (1954).
Ruiz v. Estelle, 679 F.2d 1115, 1163 (5th Cir. 1982), cert. denied,
460 U.S. 1042, 103 S. Ct. 1438 (1983).
Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225 (1975).
Id. at 655, 95 S. Ct. at 1237.
n11 The Federalist 79 (Clinton Rossiter ed. 1961).
n12 La. Sup. Ct. R. 12.
Texas v. Hopwood, 116 S. Ct. 2581 (1996). See supra note 3.
n14 See Rubin, supra note 5, at 1370-78.
115 S. Ct. 1624 (1995).
n16 See generally Louis Henkin, The Age of Rights (1990). This text draws
particularly from Rights: American and Human, in id. at 143 and Rights: Here
and There, in id. at 157.
Dred Scott v. Sandford, 60 U.S. 393 (1856).
Bolling v. Sharp, 347 U.S. 497, 74 S. Ct. 693 (1954).
n19 H.R. Doc. No. 377, 78th Cong., 2d Sess. (1944), reprinted in 90 Cong. Rec. 55,
United States v. Virginia, 116 S. Ct. 2264 (1996).
n21 See William H. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All
7 Pepperdine L. Rev. 227, 229-30 (1980).