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Constitutional Law: Structure And Rights In Our Federal System

Constitutional Law: Structure And Rights In Our Federal System - Daan Braveman,  Rodney A. Smolla,  William C. Banks I wrote most of this when I was actually studying for finals. Now that I’m done, I really can’t care enough to do justice to the leftover topics, so the ones at the end are pretty disappointing. Maybe I’ll revise when I start into the law stuff again.

What I’ve read of this book only represents half of what I’m supposed to eventually know about Constitutional law, but what I’ve already learned has done a lot to undermine my already shaky faith in the government. At the same time, there’s something I kind of like about what the screwiness of the law says about the U.S. evolving as a nation. I’ll give you an overview of what I know thus far. Be warned, though, most of it is really weird or boring. Also, I’m telling you what I know of current law, so some of it might change soon, and some of it might be changed by things I don’t know yet. Anyway, hold on, as they say, to your butts.


Sovereignty is sort of the ubiquitous issue in Constitutional law, as far as I can tell. The idea is that the states and the federal government have their own spheres, and within those spheres they’re all-powerful. The problem is that there’s no clear line between the spheres, so reasonable people disagree as to whether powers fall in the sphere of the state or the federal governments. For example, states can’t set qualifications for members of the federal House of Representatives (U.S. Term Limits v. Thornton). The idea is that the federal government is accountable directly to The People, and so are the states. The Constitution sets all the qualifications for the federal House members, and if the states can change them, that basically gives the states the power to control the federal government.

The argument against that is that the states (not The People) created the federal government by ratifying the Constitution, so the federal government is responsible to the states and the states to The People. It’s all pretty much sham arguments and semantics, but the practical effect can be a pretty big deal.


Some people take an originalist view of the Constitution, meaning we should look to the founding fathers’ intent in the actual writing of the Constitution for what the law should be today (think Glenn Beck). For example, Scalia considers himself an originalist, so his opinions are always like, “Madison always meant black when he said red. Never in the history of jurisprudence have we ever interpreted red to mean yellow!” Thomas is similar, but, like . . . crazy. Thomas is more like, if the founding fathers knew about something we can make laws about it, but if they didn’t, then he shouldn’t have to worry about it. The whole originalist thing rubs me the wrong way because it has that "Jesus wrote the Constitution" attitude. The problem I have with originalism is that it creates the false impression that originalists are defending The Truth and sticking to something authentic in the government that nonoriginalists are trying to contaminate. They use the argument to overturn legislation made by democratically elected officials. So, ironically (or predictably, as you would have it), the originalist argument is usually that of activist judges.

It all started because no one said anything in the Constitution about tie-breakers. As in, the rules don’t say who gets to interpret the rules. In a lot of ways, I think the people who made Cranium probably could have written something more solid than what we’ve got. But, coulda woulda shoulda, right? Instead we’ve got the Supreme Court jokers, and they’re not so bad all the time. After it became obvious that someone had to actually interpret the Constitution, Justice John Marshall decided that the court would do it (Marbury v. Madison). Because why not? Then, no one really disagreed, so now the Supreme Court interprets the Constitution. The irony about that is that originalist judges wouldn’t have the power of judicial review if the Constitution wasn’t at least somewhat of an evolving document.


We all know that there are three branches of federal government (except that there are kind of four in some ways – more on that later). Congress legislates; President executes; Supreme Court judges. Checks and balances and all that democratic jazz. But it’s a lot more complicated than that because when do they check and balance each other and when do they leave each other alone? If you find out, let me know.

To generalize, the Court is supposed to leave Congress alone when it has a “rational basis” for passing legislation. That is, unless the legislation infringes on a “fundamental right,” in which case the Court imposes a “strict scrutiny” test. The Court is supposed to leave the President alone when he acts within his office, but when he acts individually, he doesn’t have immunity from investigation (this was decided with the squabble over the Nixon tapes). The thing is that the Court is an unelected branch of government with no term limits. The restrictions are self-imposed, and there’s not a check regularly imposed on the Court by the other branches. It’s kind of like an umpire that’s also playing the game.


The Constitution doesn’t say who has power over foreign matters, so in U.S. v. Curtiss-Wright the Court said the President should have the power because it makes the most sense. They said that the states never had power over foreign matters because the power transferred directly from the British Crown to the Articles of Confederation to the federal government in the Constitution. Foreign powers are kind of like the Ring in the Lord of the Rings and the states are the elves (unless the elves have the Ring at some point and I just don’t remember. I’m sure someone will tell me). So, once the federal government got the Ring, there wasn’t enough ring to go around and it had to go to the branch were there’s only one dude in charge, who can wear the ring. It’s why when you vote for the President you have to ask yourself if you’ve picked a Frodo candidate or a Gollum candidate. Foreign powers go to a person’s head.


When the Civil War started, Lincoln confiscated a bunch of ships that were coming from the South to the North even though no war had been declared. The Supreme Court said it was okay because it’s the President’s job to meet aggression in the shape it takes (Prize Cases). So, the Bush administration pretty much went to town with that one.


As far as I can tell, this is how Congress has any power to do anything. According to the Commerce Clause, Congress can make laws to regulate interstate commerce. I guess, this is basically why the good ol’ boys wrote the Constitution in the first place. The Articles of Confederation weren’t working because the Confederation had no power to keep the states trading with each other and being nice. Thus, Commerce Clause.

I feel more uncomfortable about this topic than any of the others we studied this term. The basic early rules are that Congress can regulate transportation of things across state lines (Gibbons v. Ogden), but not manufacturing (U.S. v. E.C. Knight). This meant that the Supreme Court overturned federal laws regulating child labor and monopolies because they were intrastate activities. Later, because the Supreme Court was being such a bastard, FDR threatened to appoint a new Supreme Court justice for every justice over the age of 70, which would have put the court at, like, 15 justices, and the court stopped overturning all the federal laws. This whole topic kind of pisses me off because my idea of government was previously that federal laws just set a low bar for how life should be, and then states aim for higher-living goals based on their guesses of what that would look like. That’s not really how it works, though, because the real requirement for federal laws is mostly that they fit into the Commerce Clause. What this means is that the Supreme Court can hold Congress back from popular reforms based on a technicality. Maybe in some ways that is good, but it’s tough for me to get into the brain space where overturning child labor protection and upholding monopolies is a good idea.

Obviously, that’s not the way stuff is now. The history of the clause is something of a rollercoaster, as far as I know. In the ‘60’s, the Supreme Court upheld the Civil Rights Act because of the effect racism has on interstate commerce (Katzenbach v. McClung), but in the ‘90’s it overturned civil remedies under the Violence Against Women Act (U.S. v. Morrison) even though there was more substantiated proof that violence against women keeps us from traveling interstate than the same kind of proof about racism in the ‘60’s.


This is sort of an issue now with all of Arizona’s crazy laws. The 10th reserves power to the states that haven’t been given to the federal government. People have said that it is just a “truism” (U.S. v. Darby), or that the idea of powers given to the feds and reserved to the states is just a “mirror image” (New York v. U.S.). The interesting thing, though, is that the federal government can’t require the States to enforce a law. For example, that’s what people mean when they say that No Child Left Behind is unconstitutional as an unfunded mandate. The feds can only invent programs and encourage states to follow them through incentives. This keeps the state and federal government separate sovereign entities, and doesn’t allow the feds to use the states as “puppets” (Printz v. U.S.). The thing about the Arizona laws, as far as I’ve understood it, is that they conflict with INS regulations (not to mention the Civil Rights Act), so it’s not likely that they’ll stand under a challenge. When there’s conflicting federal law, it wins as long as it’s constitutional.


Even if there’s not a federal law regarding some type of interstate commerce, sometimes the state laws are held to be unconstitutional because they block interstate commerce. This is really boring. Most of the cases are about the intricacies of moving garbage between states, and garbage makes people really petty. The gist is that states can’t protect their economies from other states’ economies. They can quarantine, though, so there are some grey areas surrounding that.


You can’t sue a state unless it consents to it. The Eleventh technically says that you can’t sue a state where you’re not a citizen unless it consents, but it’s been interpreted to apply to everyone. States have statutes that allow people to sue them for the most part, so it’s not such an issue, but the deal is they have to explicitly consent. So, if you ever write a federal law, you have to remember that you can only incentivize states to enforce stuff and then you have to have them explicitly agree to be sued if they don’t fulfill their obligations.


It originally didn’t apply to state governments. Then the Fourteenth Amendment came around and the Supreme Court said it still didn’t apply. Then it changed its mind, but only applied each Amendment in the Bill of Rights individually.


The way the Supreme Court applied the amendments was through the idea of Substantive Due Process. I don’t actually know about that yet, so what I’d like to talk about now is the idea of “fundamental rights,” which also falls under the due process idea, sort of. Originally, the SC came up with the idea of fundamental rights because the first 8 amendments create a “penumbra” of other rights and the Ninth says that all rights aren’t actually listed. Later, most of the Justices have switched to the idea that fundamental rights are found in the idea of substantive due process under the Fourteenth Amendment. The due process clause in the Fourteenth says that citizens won’t be deprived of liberty without due process. The idea is that the government can deprive you of liberty with due process. But, in order to deprive you of liberty, liberty has to actually mean something. What “fundamental rights” or “liberty” mean, along with what due process is okay to deprive someone of the rights, are things that basically all the Justices disagree about.


Privacy is one of the rights now considered to be fundamental by most of the court. I think Thomas is the only one who doesn’t think there’s a right to privacy. Scalia’s iffy on it because I don’t think he’s explicitly said there is absolutely no right to privacy, like Thomas has, but he has never found a right in any of the privacy cases. Under the privacy umbrella, states can’t make laws prohibiting information about contraception (Griswold), prohibiting consensual sexual activities (Lawrence), or placing an undue burden on terminating a pregnancy before viability of the fetus (Roe, Casey, and Gonzales). Probably, all of us feel really strongly about all of these topics.

This was both the most interesting topic in this class and the most stressful to me. There is this feeling in the Gonzales v. Carhart opinion that a woman would only have an abortion if she completely lacked empathy and that if the court says it doesn’t like abortions, women will stop thinking they’re so fun and realize they’re really a bummer. It really gets under my skin. The opinion describes in graphic detail all the steps to a “partial-birth” abortion. This guy in my class, who I don’t really see eye-to-eye with came up to me this one day after we read this opinion and said I had to admit that it was written really effectively. But I do not agree with that. I think it was written really underhandedly. Like so much anti-choice rhetoric, it creates this idea that women are running after abortions like they’re the latest fashion statement, but if the government arrests women and doctors for it (or even sillier, fines them), women will suddenly realize that abortions aren’t the hip, cool thing they appear on the outside. This is all so ludicrous in so many ways! The very idea that we would take a woman who has been through the trauma of having an unwanted pregnancy and having it terminated, and then think the best thing for society would be to either charge her money or put her in jail, makes me crazy.

The most memorable experience I had of this topic in class was this guy yelling at me that I had to decide whether I wanted Congress or the Supreme Court to decide whether my body belongs to the government or not. Law students are pleasant.


If you actually look at the Second Amendment, it says that because a well-regulated militia is necessary, people have the right to bear arms. Stevens interprets that to mean that Congress can’t disband state militias, and since, in the days of yore, people brought their own weapons to war, the founders were thinking to avoid federal takeover of state armies. Scalia won the court on this debate, though, and says that it means that normal people can have guns. He doesn’t have a problem keeping guns away from felons, or generally regulating them, but he thinks the purpose of the amendment is self-defense. Stevens was kind of mad at Scalia constitutionalizing the traditionally common-law idea of self-defense, but that’s where the law’s at now.

Anyway, be constitutional and party on! I just realized I didn’t talk about the Citizen’s United case that caused all the scandal around the State of the Union. That decision was pretty obnoxious and deserving of the major reaming-out Steven’s dissent gave it, IMAO. I also didn’t talk about the Kagan nomination to replace Stevens. It will be interesting to see how she actually sides on the issues. Her answers to Congress’ questions in her nomination for Solicitor General seemed conservative in comparison to Stevens. She does not believe the death penalty is unconstitutional, as far as her answers went, and that is disappointing to me. The answers seemed very studied and careful, so it’s tough to guess what her decisions on the Court will be like. Sad that Stevens will be gone because I kind of <3 him, but I don’t think Kagan seems like a bad choice.<br/>