Constitutional Cultures: The Mentality and Consequences of Judicial Review by Robert F. Nagel

Abstract

It's not easy to teach constitutional law. In the first part of the course, where the justifications for and the problems with judicial review are established, the arguments make some sense and the subject has some shape. The painful part begins with the examination of the actual case law of the United States Supreme'Court. In area after area this requires explication of elaborate "tests" the Court has developed for deciding whether or not some challenged action is consistent with some part of the Constitution. These tests have the appearance of precision and logic. Once mastered, they need only be applied to the particular activity at issue. If a state has treated children of married and unmarried women differently in distributing some public benefit, we apply the test for discrimination based on parental marital status or "illegitimacy." We ask whether the state's distinction is substantially related to the achievement of a proper governmental interest.' If so, the state's action is valid. If not, it violates the Equal Protection Clause of the Fourteenth Amendment. If a state has put restrictions on telephone sales solicitors, we apply the test for limitations of commercial speech. We ask first whether the expression regulated concerns unlawful activity or is misleading. If not, we must inquire whether the state's interest in restricting the expression is substantial, whether the limitations advance that interest, and whether they are no greater than necessary to serve that interest. 2