Law Office of Robert Sheridan – Criminal Defense Blog

When not in court settling or trying cases, I'm busy teaching Constitutional Law at San Francisco Law School. I taught the full year-long course during the academic years 2002-2003, 2003-2004, 2004-2005, as well as, in 2006, the summer elective First Amendment Law (which I've restyled as "Freedom of Mind" Law), and in 2007, "Review of Constitutional Law," in which the problem was to bring the subject into focus for those who may have become lost in the woods.

We read so much about abortion, affirmative action, the Ten Commandments in the public square, 'under God' in the Pledge, evolution vs. creationism, etc., that we tend to forget that these are subsets of the overall issue, Constitutional law as a whole.

This big tent covers all the rest, but in giving attention to the three-rings and all the sideshows, sometimes we fail to notice the tent. It was my job to call attention to the lovely tent. The trapeze artists and clowns, the parade of animals, and freak-shows could wait.

If you would like to see what Constitutional Law is all about from an overall perspective, you are welcome to check out the links below, along with the explanatory comment. I've compiled the class summaries and a few write-ups that I handed out and emailed to students, present and former, some just now taking the bar exam, and put it on Sheridan Conlaw, the weblog I've been writing on the subject for the past three years as an aid to teaching. I've put them up here, as well, below.

The constant review of Constitutional Law makes me a better lawyer, as it enables me to see complex matters in broader contexts. By hitting any of the links, below, you'll arrive at the blog.

Someone commented that I hadn't posted here in awhile. Now you know why. I've been busy posting to the other site and making a living. I represent people with legal problems for a living. If you know someone who meets that description, send him, or her, over. It would help if the problem is in the San Francisco Bay Area, otherwise you're out of luck, I'm afraid.

I hope you'll enjoy exploring what some call the Queen of Law School Subjects and others just call the most difficult, Conlaw.

We like challenges.

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The emails, below, went to current and former students, listing class summaries and handouts that I prepared. The review class, just completed, was designed to focus on the elements of Conlaw: the conflict between power and rights, identifying the actor as governmental, private, or mixed, identifying the kind of power and its source, etc.

Power is exercised by governmental units which sometimes exceed their assigned bounds. The resulting governmental acts are thus illegitimate to that extend and can be found unconstitutional. This is what happened in Marbury, according to Marshall, C.J. He found that Congress had purported to give the court a power (to try certain cases as a trial, not an appellate, court) denied it by the text of the Constitution.

Congress's purported power-grant conflicted with the text of Art. III, which only granted this power in the cases where states, the nation, or a foreign nation were parties. James Marbury, who was merely seeking a job as a justice of the peace in the newly formed District of Columbia, was none of these.

Congress had purported to grant a power it did not have, nor did it have the power, in purporting to make such an illegal grant, to re-write the Constitution. The Constitution is more powerful than Congress (and the president). So saeth the U.S. Supreme Court, in 1803 and ever since. You may disagree with whether this is the way the power allocation should be, but not with the fact that this is the way it is and will continue to be unless and until some revolutionary change is made. This is one reason that the Court remains so powerful.

Marbury is authority for the proposition that Congress does not have the power to change, rewrite, or otherwise override, the Constitution. Quite the reverse, as the Court, in Marbury, seized the reins of power such that the Court now assumed the express power (of judicial review) to overrule purported acts of Congress (and later the president, see Youngstown Steel).

By focusing on power, we can better appreciate how strong individual rights are when they block power.

The rights belonging to a school child, a black school child during the era of Jim Crow, became powerful enough to reverse the decisions of the court, the state and federal legislatures, and all their executives, meaning the racist cops of the day in certain places, such as the notorious Bull Connor. This is what Brown v. Board (1954) means.

Constitutional rights are commensurate with, and sometimes overpower, federal and state power. Just remember that it is government power which these rights trump. They don't trump decisions based on race made by a non-government actor, i.e. a private citizen.

How do I know?

Because I know that private persons enjoy the right to make their own decisions as a matter of liberty and freedom of choice.

Government cannot tell private citizens like you and me who we may choose as friends or mates, or how we live our lives. Thus we are free to choose privately on the basis of race, religion, ethnicity, etc., bases forbidden to government.

Government, as some conceive it, in America, at least, is supposed to function as a big tent into which many different types of people may enter and live out their lives, free to practice their faith and cultures, so long as they don't interfere with others as they practice theirs.

Problems arise, naturally, when one seeks an unfair advantage over another, such as white race over black, or fundamentalist Christian over more tolerant Protestant, Catholic or Jew.

As you can see, I like discussing Conlaw and trying to boil it down from all its seeming complexity into the plain language I grew up with in StatNisland, New Yawk.

I like observing the interplay between powers and rights, noting the conflicts out of which they arose, and how the constitutional text, and the Court decisions, represent the consolidation into law of long and hard fought battles, sometimes in blood on the battlefield, other times on the streets with broken heads by police batons, and still yet, in court, where the lawyers do the fighting with lawbooks, words, and their minds, instead of using guns and bullets.

Thus we have our civil rights, used to thwart the illegitimate use of government power. What we deem legitimate, of course, varies over time and place. We're a lot different country now than we were half-a-century ago, but in many respects we're more-or-less the same, and need to re-fight many similar issues, as they rarely die. Slavery died, here, mainly, but not racism and the urge to subordinate any group we favor less, hence Jim Crow law and practice. Let me know when that disappears, 'cuz I want to be at the party. We see old ideas of liberty being challenged repeatedly, only in new window-dressing.

Yesterday's oppressed become today's oppressor. See our Puritan forebears, forced from England to Holland to the New World, seeking freedom for themselves, not others. We fight against them today constantly. Example: Sunday store closing laws back east where you cannot buy a six-pack of beer to bring on a picnic.

Why?

These Sunday blue laws, so called, were intended, by our Puritan ancestors, to prevent drinking on the Lord's day when people should be in church, not elsewhere getting boozed up. They persist to this day.

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(1) to current students:

Hi,

I sent the following email to former students who are taking the Bar exam next week. You've seen all this before, but I thought that you might like to have it all in one place in case you'd like to refer to any of it more easily.

You can see what I think is important.

Best regards,

***

(2) to earlier students:

Subject: Conlaw Review Pointers

Hi,

This summer at SFLS, I taught a Review of Conlaw class which focused on handling (often overlooked) basic questions first. During June and July, I produced a few handouts that I posted on the Sheridan Conlaw blog under "Constitutional Law." You can find this entry listed in the right margin of the blog. Or you can go to the blog and start scrolling backwards until you see something you like.

A good case not to overlook is Brentwood I, which develops into Brentwood II.

Brentwood I deals with a Tennessee high-school athletic association which looks private but is so intertwined (or entwined, entangled, or otherwise commingled) with the state government that its acts are held to be "state action," that is, not that of a private actor.

Brentwood II holds that Brentwood Academy waived its First Amendment rights to free speech in the area of recruiting youngsters to its teams when it joined the association, which prohibits soliciting youngsters. Constitutional rights can be waived, and often are. The California Court of Appeal, First Appellate District, just ruled that all the patrons of a ballpark can be patted down on entry without any individualized suspicion, on the theory that knowing of the policy and choosing to enter, they've elected to waive their constitutional rights. Query.

Waiver must be knowing, intelligent (informed consent), and voluntary, not coerced, otherwise it's not a true and honest waiver and nothing is waived.

This is why the judge asks every criminal defendant who pleads guilty whether he understands what he is doing, whether he's taken any drugs or medication, whether he understands the charges, whether he's had enough time to speak with counsel about possible defenses, and in some courts is asked to recite the facts indicating guilt, and that the defendant is not pleading guilty to protect someone else such as a co-defendant or a friend or relative. Then the defendant is often asked to sign a waiver of constitutional rights form, and initial many boxes, to make the waiver as airtight as possible because if arrested again, this will be used against him as a prior conviction (a "prior") to increase punishment.

Waiver is a cheap way government claims individuals have given up valuable constitutional rights. Police are forever claiming that a suspect gave up his right to be free of search, or waived his Miranda rights not to be questioned without a lawyer while in custody, and thus confessed. Often it's true, but sometimes it is questionable.

State action requires Equal Protection guarantees while true private decision-making generally may occur in disregard of EP rules. Why? Because the 5th and 14th amendments prohibit "Congress" and "states" from denying EP, DP to any person (not just citizen). Those are government actors. Those amendments thus apply to limit government acts, not your, or anyone's, strictly private acts.

The anti-slavery amendment (13th) applies to private actors as well as public.

Anti-gun control advocates argue that the Second Amendment (the right, allegedly, to keep and bear arms) grants an individual right to own guns, while opponents say that it grants only a corporate right allowing gun possession for those belonging to an official state militia.

I hope that you'll find something helpful in these efforts.

The basic approach urged is to look first for any structure of government issues such as separation of powers, federalism, case or controversy: including standing-of-parties and justiciability-of-issues, noting any conflicts between governmental units, noting whether the actor is private, governmental, or sufficiently mixed (intertwined/Brentwood I) to hold it accountable as state action, hence governmental.

After checking for these, proceed to individual rights such as FA, EP, PDP, SDP, E$DP, and other textual guarantees, whereupon you can then get to issues such as privacy, abortion, free expression etc., and then to scrutiny levels, strict, intermediate, and rational basis test. This is supposed to help avoid overlooking issues, by providing you with this mental checklist.

Another way of looking at this is to look first to the issue of POWER and then look to the question whether any RIGHTS are raised by the fact-situation that may overcome that power. RIGHTS vs. POWER.

Government units don't always have the power they claim to be using, from Marbury, to Youngstown, to the conflict between the President and Congress occurring today over conduct of the war, and related issues, in Iraq and Afghanistan (Guantanamo, etc).

The fight is over Power (who has it and whether it is legitimately exercised) vs. the Bill of Rights and whether any of these trump presidential power allegedly needed to protect national security.

Also whether Congress can grant powers to the president in violation of Constitutional rights. The recent 4th Circuit al-Marri decision held not, as this power was not Congress's to give, so the president could not legitimately rely on it, nor was he held to have legitimate power to decide to overrule the Bill of Rights. [See Marbury, supra.]

Unless you focus on POWER, you may miss these issues in your haste to discuss the individual RIGHTS issues which may jump out at you.

Thus POWER first, versus RIGHTS (and conflicting power, which may be considered a form of rights for this purpose, as in "states rights").

The list of URLs to the posts is below.

Break a leg.

Keep in touch.

Best regards,

/s/ Bob

R. Sheridan

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List of blog post notes, essays, outlines:

ELEMENTS OF CONLAW

http://tinyurl.com/2qknf4

POWER, POWER, POWER: THE AL-MARI CASE