AMERICAN CONSTITUTIONALISM
Howard Gillman • Mark A. Graber • Keith E. Whittington
Supplementary Material
Chapter 11: The Contemporary Era—Foundations
Introduction to 2012–2014
The constitutional politics of the Contemporary Era chugged along largely as usual in the period
between July 1, 2012, and July 1, 2014. Republicans in the summer of 2012 confidently expected to regain
control of the Senate and possibly secure the presidency. Democrats in the fall celebrated an election in
which President Obama was reelected more easily than many expected and they gained several seats in
the upper chamber of the national legislature. Liberals were pleased by the more progressive tone of the
president’s second inaugural address. Political momentum seemed to shift leftward when Republicans
shut down the government as part of their effort to defund President Obama’s health care initiative.
Immediately after the government reopened, momentum shifted as sharply to the right in response to the
massive failings of the website the Obama administration had designed for implementing that health care
initiative. By the summer of 2014, little had changed. Public support for both President Obama and the
Congress were at historical lows. Politics remained as polarized and as gridlocked as ever. Both parties
maintained control of two branches of the national government with little sign the Contemporary Era
was transforming into something else.
The two most important Supreme Court decisions of the past two years, United States v. Windsor
(2013) and Shelby County v. Holder (2013), reflect several ongoing patterns in recent constitutional politics.
Liberals won one, conservatives won the other. Justice Anthony Kennedy, who cast the deciding vote in
each 5–4 decision, and a handful of libertarians are the only persons who favored declaring
unconstitutional both Section 3 of the Defense of Marriage Act and the formula Congress had insisted on
since 1965 for determining when states and counties had to preclear voting changes with federal
authorities. Both Windsor and Shelby have had substantial legs. Following Windsor, more than a dozen
state and lower federal courts found a constitutional right to same-sex marriage. Following Shelby, many
formerly covered jurisdictions changed voting laws in ways that opponents claimed disenfranchised or
disempowered persons of color.
Developments. Same-sex marriage aside, constitutional politics seems stuck in a rut. The cultural
wars tilted in a leftward direction, as state and federal courts consistently interpreted Windsor as
providing strong precedential support for same-sex marriage. The Obama administration in the war
against terror is adopting many policies that progressives condemned when employed by the Bush
administration, most notably the use of drones to assassinate alleged terrorists and intensive surveillance
of private communications. Republicans and Democrats, liberals and conservatives, members of MoveOn and the Tea Party continue to engage in a decades-long constitutional trench warfare in which, as we
observed in the main text, all parties expend a great deal of effort and resources to gain a few feet of
constitutional turf.
The LGBT movement is the most successful participant in recent constitutional politics. In the fall
of 2012, President Obama endorsed same-sex marriage, the number of states in which same-sex couples
may lawfully marry increased from six to nineteen (California, Delaware, Maine, Maryland, Minnesota,
Rhode Island, Washington, New Jersey, New Mexico, Pennsylvania, Oregon, Illinois, Delaware). Samesex marriage will be legal in another eleven states (Arkansas, Colorado Idaho, Indiana, Kentucky,
Michigan, Oklahoma, Texas, Utah, Virginia, Wisconsin) if such lower federal and state court decisions as
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Kitchen v. Herbert (10th Cir. 2014) are not overruled.1 The Supreme Court of the United States in United
States v. Windsor (2013) declared that same-sex couples who are legally married in their state of residence
have the right to all federal benefits enjoyed by opposite-sex married couples.
Conservative cultural warriors were more successful in other arenas and on other matters. More
than a third of all state legislatures passed new restrictions on abortion. The Supreme Court in Burwell v.
Hobby Lobby (2014) ruled that closely held corporations whose owners had religious objections to
contraception did not have to comply with a federal law requiring them to provide their employees with
a health care program that included access to birth control, although Justice Alito’s majority opinion
insisted that insurers would have to provide the birth control at their expense. Republicans in the House
of Representatives passed the Pain-Capable Unborn Child Act, which would ban all abortions after
twenty weeks. Unsurprisingly, that measure is unlikely to pass or even be seriously considered by the
Democratic-controlled Senate. Religious conservatives also cheered the Supreme Court’s decision in
Town of Greece, NY v. Galloway (2014), which permitted town meetings to begin with sectarian prayers, as
long as those prayers were said by a local minister rather than governing officials.
Parties. Divided government remains the norm. Democrats control the White House and the
Senate. Republicans control the House. Five of the nine justices on the Supreme Court were appointed by
Republican presidents. Republicans are making some gains in state and local elections, although no
strong trend has yet emerged. Geography matters. Republicans are struggling to remain competitive in
the northeast and on the Pacific Coast. Virginia, Florida, and, perhaps, North Carolina are the only
former Confederate states in which Democrats regularly win some statewide elections. How and
whether such decisions as Shelby County and McCutcheon v. FCC (2014), which permits persons to
contribute the statutory maximum to an unlimited number of candidates in any election cycle, will alter
the partisan balance of power remains to be seen.
Constitutional struggles between the branches are intensifying. Congress holds hearings in
which Republicans regularly complain that President Obama is unconstitutionally using executive
appointments and orders to bypass the legislative process. The president’s supporters claim that such
efforts are well within the president’s Article II powers and are necessary in light of legislative gridlock.
Republicans gained a minor victory when the Supreme Court in NLRB v. Canning (2014) held that
President Obama acted unconstitutionally when attempting to make recess appointments at a time when
the Senate was still technically in session.
Both parties remain animated by different constitutional visions. Democrats champion the
Constitution of the New Deal and Great Society, a Constitution that gives the federal government the
power to pass any economic regulation that liberals think serves the national interest, provides
substantial protections for persons suspected of criminal offenses, and sharply curbs state power to
regulate same-sex marriage and abortion. The Constitution championed by the Republican Party places
far greater emphasis on federalism and a more limited national government. Their preferred
constitutional rights include the right to bear arms, the right to race-neutral university admissions and
public employment decisions, and various property rights.
Politics remains badly fragmented. Even institutions controlled by the same party often do not
act in unison. Democrats in the Senate sharply criticize President Obama’s policies on the war on terror.
All five Republican judicial appointees on the Supreme Court voted to strike down portions of the Voting
Rights Act that in 2006 were supported by strong Republican majorities in Congress and signed into law
by President George W. Bush. The next year, all nine justices in Riley v. California (2014), rejecting an
Obama Administration amicus brief, ruled that police ordinarily need a warrant to search the contents of
cell phones when arresting their owners.
1. Arguably Kansas, Wyoming, and Montana should be added to this list in light of Kitchen v. Herbert, and North
Carolina, South Carolina and West Virginia should be added to this list in light of Bostic V. Schaefer (4th Cir. 2014),
Although those case concerned the constitutionality of Utah’s ban on same sex marriage and Virginia’s ban on same
sex marriage, respectively, the majority opinion in each case spoke in terms general enough to cover any same-sex
marriage ban in a state covered by the Tenth and Fourth Circuits.
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Courts. The Supreme Court has oscillated between handing down fairly broad and surprisingly
narrow decisions in major cases, as well as between liberal and conservative judicial activism. In Shelby
County v. Holder a 5–4 majority declared unconstitutional the formula Congress had used for nearly forty
years when determining what states and counties needed to submit voting rights changes for
preclearance to the Attorney General or federal courts. A 5–4 majority in United States v. Windsor
declared unconstitutional Section 3 of the Defense against Marriage Act, the provision that denied federal
benefits to same-sex couples who were legally married in their state of residence. The justices ducked
explosive constitutional issues when deciding the other two high-profile cases of the 2012-2013 term. A 5–
4 majority in Hollingsworth v. Perry (2013) relied on (dubious) standing grounds for not determining
whether California’s ban on same-sex marriage violated the equal protection clause of the Fourteenth
Amendment. Rather than strike down or sustain affirmative action, the justices in Fisher v. University of
Texas (2013) insisted only that the Court of Appeals for the Fifth Circuit make clear whether Texas had
any race-neutral alternative to its race-conscious admissions program.
The same patterns repeated in the Supreme Court’s 2013-2014 Term. The justices by a 5-4 vote in
McCutcheon v. FCC (2014) declared unconstitutional federal laws limiting the number of candidates
persons could contribute to in any election cycle. The same 5-4 majority in Town of Greece, N.Y. v.
Galloway sustained the practice of giving sectarian prayers at the start of town meetings. Constitutional
law also moved leftwards when a unanimous court declared that police needed warrants to search a cell
phone seized after an arrest. Other decisions in the 2013-2014 term were far more minimal. The Chief
Justice and the four liberals declared unconstitutional a Massachusetts law prohibiting people from
congregating near abortion clinics, but pointedly refrained from overturning past precedents sustaining
more narrowly tailored laws limiting protests outside of those facilities. Harris v. Quinn (2014)
maintained that precedents sustaining state laws requiring public employees to pay union dues did not
cover “partial state employees” who could not constitutionally be required by law to support the union.
Justice Kennedy in Scheutte v. BAMN (2014) distinguished past precedents striking down state laws that
placed barriers in the way of racial minorities seeking favorable laws when permitting Michigan to ban
affirmative action after a referendum on a state constitutional provision. Both Harris and Schuette
inspired sharp dissents by the liberals on the court, claiming that “distinguished” precedents had, in fact,
been eviscerated.
The big cases aside, the more conservative justices on the Supreme Court seemed less united than
in previous years. Liberals in the recent past have typically been successful only when Justice Kennedy
and, occasionally, Chief Justice Roberts voted for the more progressive outcome. 2012–2013 witnessed a
greater variety of judicial line-ups. In Alleyne v. United States (2013), Justice Thomas joined with the four
more liberal justices to form a majority in favor of a constitutional rule requiring juries to find beyond a
reasonable doubt any fact that increased the statutory minimum sentence for a crime. Chief Justice
Roberts and Justice Alito joined the more liberal justices in Agency for International Development v. Alliance
for Open Society International, Inc. (2013), a decision holding that Congress could not require agencies to
adopt general policy positions as a condition for receiving public funds. Justices Scalia and Thomas cast
the deciding votes in Florida v. Jardines (2013), a case holding that police officers may not physically enter
a person’s front porch for the purpose of conducting a dog sniff search without first obtaining a warrant.
Justice Breyer joined the other three conservatives in the dissent. Turnabout was fair play. Breyer cast the
crucial vote in Maryland v. King (2013) upholding the constitutionality of taking DNA swabs after an
arrest. Justice Scalia joined the other three members of the Court’s liberal bloc in dissent. The same
voting line-up recurred in Naverette v. California (2014), which sustained a search based on what the
majority insisted was a reliable anonymous tip.
Constitutional Thought and Legacies. The states and lower federal courts continue to bring major
issues to national attention. Shelby and other Supreme Court decisions have intensified constitutional
struggles over voting. Many Republican state and local legislatures are passing stricter voter registration
laws and taking advantage of their freedom from preclearance to adjust voting practices. Liberals have
enjoyed some success when challenging these measures in court. The Supreme Court of Pennsylvania in
Applewhite v. Commonwealth (2014) declared unconstitutional the state voting ID law, but similar laws
have been placed on the books, almost always by Republican controlled state legislatures, in many
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states.2 A federal district court in Floyd v. City of New York (S.D.N.Y. 2013) ruled that New York City police
officers had been unconstitutionally singling out persons of color for stop and frisks. The success of the
gay rights movement has spawned a countermovement among religious conservatives who insist at the
very least that they have rights to exemptions to laws prohibiting discrimination by sexual orientation. In
a closely watched case, the Supreme Court of New Mexico in Elane Photography v. Willock (2013) ruled that
a wedding photographer was legally obligated to shoot a same-sex commitment ceremony. State efforts
to adjust civil servants pensions are threatening a revival of the contracts clause, with liberals leading the
charge for more aggressive judicial supervision. In what may be a harbinger of things to come, Kanerva v.
Weems (IL 2014) declared that an Illinois law reducing pension benefits violated the state constitution. A
local court in Vergara v. California (CA 2014) opened up a new front in constitutional debates over
education when declaring that California’s tenure policies violated the educational rights of poor and
minority students by making next to impossible efforts to terminate grossly incompetent teachers who
were concentrated in poor and minority school districts.
The past two years witnessed the continued development of Chief Justice Robert’s constitutional
vision, one that, in sharp contrast to that of the New Deal/Great Society regime, places the Tenth
Amendment at the center of American constitutionalism. The chief justice first developed his
constitutional vision at some length in National Federation of Independent Business v. Sebelius (2012), when
he began his opinions by asserting, “In our federal system, the National Government possesses only
limited powers; the States and the people retain the remainder.” Roberts frequently articulated this
federalist vision during the 2012–2014 judicial terms. Relying heavily on the Tenth Amendment, his
opinion in Shelby County v. Holder asserted that “the Constitution provides that all powers not specifically
granted to the Federal Government are reserved to the States or citizens. This allocation of powers in our
federal system preserves the integrity, dignity, and residual sovereignty of the States.” The chief justice
and his more conservative brethren sometimes asserted narrow conceptions of federal power when
voting to sustain federal authority. Roberts in United States v. Kebodeaux (2013) voted to sustain a federal
law requiring persons to register in local communities if they had been convicted of sexual offenses while
in the military, but his concurring opinion pointedly denied that the federal government possessed
general police powers. In Bond v. United States (2014), the chief justice reasoned from the premise that the
federal government “lack(s) a police power” and “cannot punish felonies generally” when concluding
that Congress had not intended the Chemical Weapons Convention Implementation Act to punish
ordinary domestic crimes.
The other conservative justices on the Roberts Court have sometimes pushed beyond Chief
Justice Roberts in fashioning a federalism-centered constitutional vision. Justice Scalia, dissenting in
Bond, declared “No law which flattens the principle of state sovereignty . . . can be said to be proper.”
Justice Thomas would limit the treaty power to “matters of international intercourse.” Scalia’s majority
opinion in Arizona v. Inter Tribal Council of Arizona, Inc. (2013), when declaring that U.S. law preempted an
Arizona requirement that persons eligible to vote prove their citizenship, made clear that the federal
government could merely provide the forms for registration and not establish qualifications for state
voters. Justice Kennedy invoked federalism for progressive causes when his majority opinion striking
down Section 3 of the Defense against Marriage Act insisted that states traditionally enjoyed the power to
determine who could marry who. In a partial reversal of roles, Chief Justice Roberts and Justice Kennedy
joined three liberal justices in Michigan v. Bay Mills Indian Community (2014), which held that states could
not sue Indian tribes without federal permission. Justice Ginsburg joined the remaining conservatives in
dissent.
The status of federalism and the Tenth Amendment nevertheless remains unclear in the summer
of 2014. President Obama’s second inaugural spoke of using federal power to resolve numerous national
powers and his judicial appointees are committed to the New Deal/Great Society vision of a national
government with the authority to resolve all national problems. Faced with a recalcitrant Congress, the
Republican-controlled House of Representatives in particular, the president has increasingly relied on
executive action and orders to achieve his more progressive vision. Republicans in Congress have
2. For an update on the voting wars in the states, see http://www.propublica.org/article/voting-rights-by-state-map.
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responded by threatening a massive lawsuit challenging the constitutionality of Obama administration
practices. The survival of New Deal/Great Society vision remains for the future to determine, even as
that vision comes under increased assault and the more conservative potential replacement is coming into
sharper focus.
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