Fundamental Law and the Supreme Court

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The declaration of independence explicitly invoked the concept of natural justice—a higher law, timeless and universal—as a defense against tyranny. By the late eighteenth century there had evolved a conviction that the essence of this fundamental law could at one stroke be captured in a document that would endure for ages to come. Of the original state constitutions several were declared in force without constituent ratification and some made no provision for amendment. By the time of the federal constitutional convention of 1787, these extreme forms of immutability had given way. Article V provided a formalized process of constitutional amendment, while Article VII conditioned adoption on ratification by state conventions. But the concept of written constitutions as the embodiment of fundamental law was central to the federal Constitution and to later state constitutions.

The issue whether fundamental law had other appropriate functions in the American constitutional scheme arose early among Justices of the Supreme Court of the United States, and remains critical at the Constitution's bicentenary. Debate opened in calder v. bull (1798). The Connecticut legislature had set aside a court decree refusing to probate a will, granting a new hearing at which the will was admitted. Denied relief in the state courts, the disappointed heir appealed to the Supreme Court. Outraged at the destruction of the heir's expectancy, Justice samuel chase declared "it is against all reason and justice, for a people to intrust a legislature with such powers, and therefore, it cannot be presumed that they have done it." In Chase's view, the fundamental law could not tolerate "a law that takes property from A and gives it to B," even in the absence of constitutional prohibition. Justice james iredell challenged this claim of extraconstitutional power to nullify legislation, insisting that if legislation is within constitutional limits "the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice."

Iredell's logic prevailed in Calder but in the long run could not hold the line. Chief Justice john marshall hedged on the question in fletcher v. peck (1810), declaring that Georgia's attempt to revoke fraudulent land grants was void "either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States.…" Similarly, Justice joseph story rested the Court's opinion in terrett v. taylor (1815) upon several grounds, among them "the principles of natural justice" and "the spirit and letter of the [federal] constitution.…" loan association v. topeka (1874), although decided following ratification of the fourteenth amendment, was grounded by Justice samuel f. miller on extraconstitutional principles founded in fundamental law. The taking from A (by taxation) in aid of B (bridge manufacturer not a public utility) was stricken as an "unauthorized invasion of private right." In contrast, dred scott v. sandford (1857) and Hepburn v. Griswold (1869) invalidated congressional "takings" under the Fifth Amendment's due process clause.

At the turn of the century the issue of extraconstitutional adjudication intensified with an obiter dictum in allgeyer v. louisiana (1897). With lochner v. new york (1905) and Adair v. United States (1908), the majority of the court opened a period in which much economic and social legislation was held unconstitutional, ostensibly under the due process clauses. However, the basis given was violation of freedom of contract, for which there was no constitutional warrant. Justice oliver wendell holmes, in his celebrated Lochner dissent, insisted that the Fourteenth Amendment, properly construed, should accord with "fundamental principles as they have been understood by the traditions of our people and our law." Yet to him that amendment correctly embraced condemnation of governmental expropriation of property from A for B's benefit, as he made clear in Pennsylvania Coal Co. v. Mahon (1922). Justice louis d. brandeis there dissented, but he later invoked the identical principle under both due process clauses: the Fifth Amendment clause in Wright v. Vinton Branch of Mountain Trust Bank (1937) upholding a revised moratorium law, and the Fourteenth Amendment clause in Thompson v. Consolidated Gas Utilities Corp. (1937). In the latter he declared, "Our law reports present no more glaring instance of the taking of one man's property and giving it to another."

The Lochner-Adair venture into noninterpretive constitutionalism was rejected by a split vote in nebbia v. new york (1934), followed by unanimity in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949). Yet only two years after categorical repudiation in ferguson v. scrupa (1963), the seductive appeal of the philosophy of Lochner and its progeny was back, this time in the service of noneconomic interests. In griswold v. connecticut (1965) the due process clause was used to invalidate an anticontraception law; in harper v. virginia board of elections (1966) the equal protection clause provided the basis for invalidating the poll tax as a condition for exercise of voting rights. In both cases the majority sought to ground decision in constitutional provisions, but Justice hugo l. black, unpersuaded, accused the Court of invoking "the old "natural-law-due-process formula," which, he declared, "is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights." roe v. wade (1973), insulating from governmental intervention a woman's decision to have an abortion during the first trimester of pregnancy, rested upon a doctrine of "personhood" demonstrably beyond the ambit of constitutional text, context, or structure. Reaffirmed in akron v. akron center for reproductive health, inc. (1983) out of respect for stare decisis, Roe highlights the Supreme Court's continuing temptation to give constitutional force to extraconstitutional values it finds lying in the recesses of unwritten fundamental law.

Frank R. Strong


Grey, Thomas 1978 Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought. Stanford Law Review 30:843–893.

Hand, Learned 1960 The Spirit of Liberty, 3rd ed. New York: Knopf.

Perry, Michael 1982 The Constitution, the Courts, and Human Rights, chap. 4. Columbus: Ohio State University Press.

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Fundamental Law and the Supreme Court

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