Introduction to the 1992 Edition

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                    INTRODUCTION TO THE 1992 EDITION

        In the 1952 edition, Professor Corwin wrote an introduction that
broadly explored the trends of constitutional adjudication then evident
while other trends had become dormant. In some respects, the law of
federalism, the withdrawal of judicial supervision of economic
regulation, the continuing expansion of presidential power and the
consequent overshadowing of Congress, among others, he has been
confirmed in his evaluations. But, in other respects, entire new vistas
of fundamental law of which he was largely unaware have opened up. Brown
v. Board of Education was but two Terms of the Court away, and the
revolution in race relations, by all three branches, could have been
only dimly perceived. The Supreme Court's application of many provisions
of the Bill of Rights to the States, then nascent, and its expansion of
the meaning of those rights would prove revolutionary. The
apportionment-districting decisions were still blanketed in time;
abortion as a constitutionally protected liberty was unheralded. And
with respect to the range of decisions which he did not anticipate, we
have seen a Supreme Court move from the activism of the 1960s and 1970s
to a posture of more judicial restraint, although in many areas, speech
and press notably, little change has occurred as a result of a shifting
of the Justices of the High Court.
        This brief survey will primarily be a suggestive review of the
Court's treatment of the doctrines of constitutional law. In previous
editions, we have noted the rise of the equal protection clause as a
central concept of constitutional jurisprudence in the period 1953-1982.
That rise has somewhat abated in the period covered by this volume, but
the clause remains one of the predominant sources of constitutional
constraints upon the Federal Government and the States. The due process
clauses of the Fifth and Fourteenth Amendments similarly have
experienced an expansion, both in terms of procedural protections for
civil and criminal litigants and in terms of the application of
substantive due process to personal liberties and in some economic
cases.
                                    I
        National federalism as a doctrine was proved to be far more
pervasive and encompassing than it was possible to notice in 1953. In
some respects, of course, later cases only confirmed what those
decisions already on the books told. Foremost example of this
confirmation has been the enlargement of national powers, of
congressional powers, under the commerce clause. The expansive reading
of that clause's authorization to Congress to reach many local incidents
of business and production already apparent by 1953 was scarcely
enlarged by those decisions of the period through the 1960s - 1980s,
under which Congress asserted jurisdiction on the basis of an antecedent
or subsequent movement over a state boundary of some element touching
upon the transaction or solely upon the premise that certain
transactions by their nature alone or as part of a class sufficiently
affect interstate commerce as to warrant national regulation. Civil
rights laws touching public accommodations and housing, environmental
laws affecting land use regulation, criminal law coverage, and
employment regulations touching health and safety as well as benefits
are only the leading examples of enhanced federal activity. Conversely,
state power to regulate commerce has been further restricted through the
application of a doctrine of preemption which is increasingly aimed at
one national standard, although under Chief Justice Burger and Chief
Justice Rehnquist, the Court has not so readily as before seemed to
favor preemption, especially in the area of labor-management relations.
Only with respect to the State's own employees did the Court inhibit
federal regulation and then with a decision which failed to secure a
stable place in the doctrine of federalism, being overruled in less than
a decade. Some immunity for States from federal laws aimed directly at
them was implied from the Constitution, but its potency remains to be
seen.
        Noteworthy has been a rather strict application of the negative
aspect of the commerce clause to restrain state actions that either
discriminate against or too much inhibit interstate commerce.

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        Of much the same import has been the application of the Bill of
Rights to the States through the due process clause of the Fourteenth
Amendment, a matter dealt with in greater detail below. The Court has
again and again held that when a provision is applied, it means the same
whether a State or the Federal Government is the challenged party,
although a small but consistent minority has argued otherwise. Some
flexibility, however, has been afforded the States by the judicial
loosening of the standards of some of these provisions, as in the
characteristics of the jury trial requirement. Adoption of the
exclusionary rule in Fourth Amendment and other cases also looked to a
national standard, but the more recent disparagement of the rule by
majorities of the Court has relaxed its application to both States and
Nation.
        The Court of the last ten years has reinvigorated, to be sure,
certain aspects of the old federalism. The Eleventh Amendment has been
infused with new potency. The equity powers of the federal courts to
interfere in on-going state court proceedings and to review state court
criminal convictions under habeas corpus have been curtailed. A doctrine
of comity and rules of prudential restraint in the exercise of federal
judicial power have been invoked.
        The overriding view is that the present Court where it has
discretion will apply federalism concerns to limit federal powers. But
the critical fact, the scope of congressional power, remains: the limits
on congressional power under the commerce clause and other Article I
powers, as well as under the power to enforce the Reconstruction
Amendments, remain those of self-restraint.
                                   II
        For much of this period, aggregation of national power in the
presidency continued unabated and not much resisted by congressional
majorities, which, indeed, continued to delegate power to the Executive
Branch and to the independent agencies at least to the same degree if
not to a greater extent than before. The President himself, most notably
in the field of foreign affairs and national defense, assumed the
existence of a substantial reservoir of inherent power to effectuate his
policies as well. Only in the wake of the Watergate affair did Congress
move to assert itself and to attempt to claim some form of partnership
with the President, most notably with respect to war powers and the
declaration of national emergencies, but including as well the
regulation of some domestic presidential concerns, as in the impoundment
controversy.
        Perhaps coincidentally, the Supreme Court effected a strong
judicial interest in the adjudication of separation-of-powers
controversies. Previously, even as it utilized separation of language,
the Court little involved itself in actual controversies, save for the
Myers-Humphrey litigations over the President's power to remove
executive branch officials. But that restraint evaporated in 1976.
        There were several Court decisions in this area, although in
evincing a renewed interest in separation of powers, as in Buckley v.
Valeo, and subsequent cases, the Court appeared to cast the judicial
perspective favorably upon presidential prerogative and in a few cases
statutory construction was utilized to preserve unto the President
certain discretion that was in dispute. Only very recently has the Court
evolved an arguably consistent standard in this area, a two-pronged
standard of aggrandizement and impairment, but the results still are
cast in terms of executive preeminence.
        The larger conflict has been political, and the Court resisted
many efforts to involve it in litigation over the use of troops abroad
in Vietnam, coming close as well to declaring, in a treaty termination
context, the resurgence of the political question doctrine to all such
executive-congressional disputes. Nevertheless, there does appear to
have survived cessation of the Vietnam conflict a significant
congressional interest in achieving a new and different balance between
the political branches, an interest the assertion of which may well
involve the judiciary to a much greater extent, and, in any event, one
which the congressional branch is not without weapons to effectuate.
                                   III
        The demise of substantive due process, apparent in the 1950s, is
a fact today insofar as the validity of economic legislation is
concerned, although in a few isolated cases, involving the

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obligation of contracts, and perhaps expanding in the regulatory takings
area, the Court has demonstrated that some life is left in the old
doctrines. Yet, the word ``liberty'' in the due process clauses of the
Fifth and Fourteenth Amendments was seized upon by the Court in
harnessing substantive due process to the protection of certain rights
having to do with personal and familial privacy, most controversially in
the abortion cases.
        Whereas much of the Bill of Rights is directed to prescribing
how government may permissibly deprive one of life, liberty, or
property--by judgment of a jury of one's peers or with evidence seized
only through reasonable searches, for example--the First Amendment is in
terms absolute and while its application has never presumed to be so
absolute the effect has often been indistinguishable. Thus, the trend
over the years has been to withdraw more and more speech and ``speech-
plus'' from the regulatory and prohibitive hand of government and to
free not only speech directed to political ends but that totally
unrelated to any political purpose.
        Thus, the constitutionalization of the law of defamation with
the narrowing possibilities of recovery for libelous and slanderous
criticism of public officials, political candidates, and public figures
epitomizes the trend. Government's right to proscribe the advocacy of
violence or unlawful activity has become more restricted. Obscenity
abstractly remains outside the protective confines of the First
Amendment, but the Court's changing definitional approach to what may be
constitutionally denominated pornography has closely confined most
governmental action taken against the verbal and pictorial
representation of matters dealing with sex. The encompassing of the
right to spend for political purposes and to associate together for
political activity has meant that much governmental regulation of
campaign finance and of limitations upon the political activities of
citizens and public employees had become suspect if not impermissible.
Commercial speech, long the outcast of the First Amendment, now enjoys a
protected if subordinate place in free speech jurisprudence. Freedom to
picket, to broadcast leaflets, to engage in physical activity
representative of one's political, social, economic, or other views
enjoy wide though not unlimited protection.
        It may be that a differently constituted Court will view matters
differently, will narrow the scope of the Amendment's protection and
enlarge the permissible range of governmental action. But, in contrast
to other areas in which the present Court has varied from its
predecessor, the record with respect to the First Amendment has been one
of substantial though uneven expansion of precedent.
                                   IV
        Unremarked by scholars of some forty years ago was the place of
the equal protection clause in constitutional jurisprudence--simply
because at that time Holmes' pithy characterization of it as a ``last
resort'' argument was generally true. Today, equal protection litigation
occupies a position of almost predominant character in each Term's
output. Then, the rational basis standard of review of different
treatments of individuals, businesses, or subjects little concerned the
Justices. The clause blossomed in the Court's confrontation after Brown
v. Board of Education with state and local laws and ordinances drawn on
the basis of race and this aspect of the doctrinal use of the clause is
still very evident on the Court's docket, though in ever new and
interesting form.
        Of worthy attention has been the application of the doctrine,
now in a three-tier or multi-tier set of standards of review, to
legislation and other governmental action classifying on the basis of
sex, illegitimacy, and alienage. Of equal importance was the elaboration
in adjudication under the clause of a concept of ``fundamental'' rights
as to which a government must if it acts so as to restrict the exercise
of one of these rights show not merely a reasonable basis for its
actions but a justification based upon necessity, compelling necessity.
The right to vote, nowhere expressly guaranteed in the Constitution (but
protected against abridgment on certain grounds in the Fifteenth,
Nineteenth, and Twenty-sixth Amendments) received under the clause a
special dispensation that required the invalidation of all but the most
simple qualifications, most barriers to ballot access by individuals and
parties, and the practice of apportionment of state legislatures on any
basis other than population. Wealth distinctions in the criminal process
were viewed with hostility and generally invalidated.

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        Again, a reconstituted court made some tentative rearrangements
with respect to these doctrinal developments. The suspicion of wealth
classifications was largely though not entirely limited to the criminal
process. Governmental discretion in the political process was enlarged a
small degree. But the record generally is one of consolidation and
maintenance of the doctrines, a refusal to go forward much but also a
disinclination to retreat much. Only very recently has the Court, in
decisional law largely cast in remedial terms, begun to dismantle some
of the structure of equal protection constraints on institutions, such
as schools, prisons, state hospitals, and the like. Now, we see the
beginnings of a sea change in the Court's perspective on legislative and
executive remedial action, affecting affirmative action and race
conscious steps in the electoral process, with the equal protection
clause being used to cabin political discretion.
                                    V
        Finally, criminal law and criminal procedure during the 1960s
and 1970s has been doctrinally unstable. The story of the 1960s was
largely one of the imposition of constitutional constraint upon federal
and state criminal justice systems. Application of the Bill of Rights to
the States was but one aspect of this story. At the same time, the Court
constructed new teeth for the guarantees. For example, the privilege
against self-incrimination was given new and effective meaning by
requiring that at the police interrogation stage it be observed and
furthermore that criminal suspects be informed of their rights under it.
It was also expanded, as was the Sixth Amendment guarantee of counsel,
by requiring the furnishing of counsel or at least the opportunity to
consult counsel at ``critical'' stages of the criminal process--
interrogation, preliminary hearing, and the like, rather than only at
and proximate to trial. An expanded exclusionary rule was applied to
keep out of evidence material obtained in violation of the suspect's
search and seizure, self-incrimination, and other rights.
        During the last two decades, the Court has drawn the line
differently here. The exclusionary rule has been cabined and redefined
in several limiting ways. Search and seizure doctrine has been revised
to enlarge police powers. The self-incrimination and counsel doctrines
have been eroded in part although in no respect has the Court returned
to the constitutional jurisprudence prevailing before the 1960s.
        Moreover, substantive as well as procedural guarantees were
developed. The law of capital punishment has been a course of meandering
development, with the present Court almost doing away with it and then
approving its revival by the States.
        Undergirding the 1960s procedural and substantive development
was a series of expansion of the habeas corpus powers of the federal
courts, with the sweeping away of many jurisdictional restrictions
previously imposed upon the exercise of review of state criminal
convictions. Concomitantly with the narrowing of the precedents of the
1950s and 1960s Court came a retraction of federal habeas powers since
the 1970s.
                                   VI
        The last four decades were among the most significant in the
Court's history. They were as well the scene of some of the most
sustained efforts to change the Court or its decisions or both with
respect to a substantial number of issues. On only a few past occasions
was the Court so centrally a subject of political debate and controversy
in national life or an object of contention in presidential elections.
One can doubt that the public any longer perceives the Court as an
institution above political dispute, any longer believes that the
answers to difficult issues in litigation before the Justices may be
found solely in the text of the document entrusted to their keeping. But
one cannot doubt either that the Court still enjoys the respect and
reverence of the bar and the public generally, that its decisions
generally are accorded uncoerced acquiescence, and that its
pronouncements are accepted as authoritative, binding constructions of
the constitutional instrument. Indeed, it can be argued that the
disappearance of the myth of the absence of judicial discretion and
choice strengthens the Court as an institution to the degree that it
explains and justifies the exercise of discretion and choice in those
areas of controversy in which the Constitution does not speak clearly or
in which different sections lead to different answers. The public
attitude thus established is then better enabled to

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understand division within the Court and within the legal profession
generally, and all sides are therefore seen to be entitled to the
respect accorded the good faith search for answers. As the Court's
workload continues to increase, a greater and greater proportion of its
cases taken are ``hard'' cases and while hard cases need not make bad
law they do in fact lead to division among the Justices and public
controversy. Increased sophistication, then, about the Court's role and
its methods can only redound to its benefit.