Reason in Law: Ninth Edition by Lief H. Carter & Thomas F. Burke

Author:Lief H. Carter & Thomas F. Burke [Carter, Lief H. & Burke, Thomas F.]
Language: eng
Format: epub
Tags: American Government, Political Science, Law, General
ISBN: 9780226328218
Google: _AyZCwAAQBAJ
Publisher: University of Chicago Press
Published: 2016-03-04T13:10:35+00:00

The Supreme Law of the Land

The short answer to the question, What makes the U.S. Constitution so important? is that the Constitution of the United States declares itself, in Article VI, to be “the supreme law of the land.” If the Constitution is supreme, it presumably overrides all state constitutions and all statutes and common law rulings. In other words, when a law or executive action is inconsistent with the Constitution, the law or action has got to go.

The supremacy clause is the constitutional equivalent of the familiar saying “The buck stops here.” As we have seen, rules of law do not necessarily provide one and only one obviously “right” answer to concrete legal conflicts. Because only the scarcity of time and money curb the ingenuity of lawyers in creating legal arguments, virtually every question of governmental operation and of civil rights and liberties can become the subject of constitutional litigation. Major constitutional decisions, like the Supreme Court’s 5–4 ruling upholding the constitutionality of Obamacare, regularly become leading stories in the news media. But countless other constitutional issues, less headline-worthy but of deep importance to somebody, also arise. Here are three examples:

• In 1999 Congress enacted a law prohibiting the creation and sale of materials depicting cruelty to animals. The law excluded from coverage “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” In 2004, Robert J. Stevens was convicted for creating and selling three videotapes, two of which showed pit bulls engaged in vicious fighting, the third a gruesome attack by a dog on a domestic pig. Stevens didn’t shoot the material; he merely collected tapes from others, packaged them with his own introduction and commentary, and sold them for profit. Did Stevens’s conviction violate his First Amendment right to freedom of speech?3

• Section 4 of Article I of the U.S. Constitution begins with this seemingly plain and unambiguous sentence: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In the early twenty-first century, voters in Arizona and California, disgusted by partisan attempts by legislative majorities to gerrymander (creatively shape) electoral districts so as permanently to retain their hold on power, voted to strip redistricting power from their state legislatures and give it to bipartisan commissions. But the Republican majority in Arizona’s state legislature sued, insisting that under the language of Article I, only “the Legislature” could determine electoral districts. Defendants responded that the phrase “the Legislature” in the Constitution can plausibly include all legislative bodies, and other state laws unambiguously authorized the people to “legislate” by voting on initiatives and referenda, as they did in this case. Can the voters of a state determine how their own legislative districts are drawn?4

• A wedding photographer, Elaine Huguenin, politely refused to photograph a lesbian “commitment ceremony” because of her opposition to same-sex marriage (though not, she insisted, to homosexual relationships) and to her religious beliefs. Her would-be customers, a lesbian couple, sued her under a New Mexico law forbidding discrimination against gay men and lesbian women.

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