A Brief History of U.S. Constitutional Interpretation
by Edward Hanigan
efore the ratification of the Constitution the original States considered themselves as separate sovereigns bound together only by the Articles of Confederation which provided for a national government only in the most rudimentary sense. For example, the Articles of Confederation did not provide for a mechanism for the national government to enforce its laws or to collect taxes. It relied upon voluntary compliance by the several States.
The Confederation was viewed as a government for limited purposes. Many citizens fully expected to dispense with their union after the resolution of the war with England. However, after the war the former colonies discovered that their ability to prosper and interact with each other was frustrated by conflicting laws, tariffs and goals.
In the summer of 1787 representatives of the States met in Philadelphia to discuss amendments to the Articles of Confederation to improve commerce between the States. As it turns out, the Convention went far beyond piecemeal amendments to the Articles and instead drafted an entirely new Constitution creating a federal system of government. The basic scheme was to create a system of dual sovereignties with a national government with specific enumerated powers. Generally, these powers related to regulating commerce between the States, the united states and foreign governments and providing for a common defense. The States would continue to act as independent sovereigns for most other purposes.
Ratification of the new Constitution was left to the States. The proponents of the new Constitution, the Federalists, and the opponents, the Anti-Federalists, debated the scope of the proposed new national governments powers. To secure ratification, the Federalists acceded to the demands of the Anti-Federalists that the Constitution be amended to include language expressly setting forth the rights of the people and the states vis-a-vis the national government. The Federalists argued that the proposed amendments were superfluous because the Federal Government had only those powers specifically enumerated in the proposed Constitution. The States and the people had all other rights and powers. Nevertheless, those amendments were adopted and are commonly known as the Bill of Rights.
A review of the Tenth Amendment, the Interstate Commerce Clause and the Fourteenth Amendment is helpful in understanding the cases discussed in this article: The Tenth Amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people." The Interstate Commerce Clause provides that Congress has the power to "regulate commerce . . . among the several States . . . " Article 1, section 8. Section 1 of the Fourteenth Amendment adopted after the end of the Civil War provides in part that,
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of the equal protection of the laws."
For the most part until this century the Interstate Commerce Clause and the Fourteenth Amendment were interpreted narrowly. Congress and the courts read the Interstate Commerce Clause to empower Congress to regulate commerce between the States, i.e., to insure the free flow of commerce and to legislate in those areas where state regulation was ineffective because the activity sought to be regulated occurred in two or more States. The Fourteenth Amendment was enacted to ensure that the former States of the confederacy afforded the former slaves the same protection of the laws and due process granted others. With the arrival of the New Deal era and activist judges, those provisions of the Constitution have been more broadly interpreted.
With little exception, for the last 60 years the interstate commerce clause has been interpreted to empower Congress to legislate in any area which may affect interstate commerce. Just as the Interstate Commerce Clause has been used to expand Congressional legislative power, the Fourteenth Amendment has been used to expand the power of the Federal Judiciary to set the scope of personal liberties. The Federal Judiciary has accomplished this expansion through a series of cases in which it wrestled with the meaning of the word "liberty" in the Amendment. The question the Supreme Court has asked itself is what liberty interest does the Fourteenth Amendment protect? In answering that question the Courts have looked to the rest of the Constitution for clues as to what rights it protects. It found that liberty includes most, but not all, of the rights protected by the Bill of Rights.
The Court has also considered what rights are necessary to an ordered democratic society. This analysis ultimately led to the discovery of the right to privacy which the Court has held permeates the entire Constitution. While it is difficult to argue against a generous interpretation of civil liberties, it is important to remember that each newly enunciated right is at the expense of laws enacted by elected representatives or public referendum and to the benefit of an unelected Federal judiciary. u