SUMMER 2007 CONLAW REVIEW COURSE

Welcome.

On the continuation below is an overview of Conlaw. As soon as I'm through sorting my list of cases to cover, I'll post that above. Stay tuned. This blog is my helper in teaching Conlaw. You may disregard any opinions you regard as political, but come up with your own, instead. Conlaw is a place to test your own critical faculties. I'll be happy to act as goad or foil, provided we don't take up class time arguing over political opinions. You are tested on your ability to analyze for Conlaw principles and apply them, much as a geometry class tests your ability to apply geometric theorems intelligently.

This will get you started.

REVIEW OF CONSTITUTIONAL LAW
SYLLABUS & OVERVIEW
PROF. ROBERT SHERIDAN
SAN FRANCISCO LAW SCHOOL
JUNE-JULY, 2007

THE TROUBLE WITH CONLAW

IT SEEMS SO AMORPHOUS, NEBULOUS, THAT I CAN’T GET MY HEAD AROUND IT;

THE CASES START OUT ONE WAY AND WIND UP ANOTHER

LITTLE MUNDANE CASES TURN OUT TO BE WORLD-SHAKING

Other law courses such as crimes and torts focus on elements that I can understand, such as act, intent, knowledge, breach of duty owed, injury, damages, etc.

I can understand, in contract law, offer, acceptance, consideration, adequacy of performance, mistake, prevention of performance, etc.; those seem so logical; why can’t Conlaw be like this? What are the elements, the basic components of Conlaw? If I knew what they were, I might be able to speak and write about them!

WHAT IS GOING ON?

HAVE YOU EVER BEEN DISCRIMINATED AGAINST BECAUSE OF SOMETHING OVER WHICH YOU HAVE NO CONTROL, SUCH AS YOUR RACE, ETHNICITY, GENDER, AGE, SEXUAL IDENTITY, HEIGHT, WEIGHT, COLOR OF EYES, LEFT-HANDEDNESS, PRESENCE OR ABSENCE OF HAIR?

ARE THESE MUNDANE LITTLE THINGS WHEN THE DISCRIMINATION HAPPENS TO YOU?

The state is given the power to make official marriage and divorce.

Does this mean that a police officer can perform a marriage?

Grant a divorce?

Can a small claims court grant a divorce?

Can a traffic court impose the death penalty?

Why not?

They don’t have the power?

Why don’t they have the power?

Why don’t we regard the exercise of such power by such bodies or officers as being legitimate?

Constitutional law is concerned with the legitimate exercise of power. Conlaw is all about power, who has it and who doesn’t, legitimately, not by mistake or some power grab.

Where does Conlaw come from?

Remember, the world had accumulated a considerable body of knowledge and principle before our Constitution was written in 1787 by the mainly white, Anglo-Saxon Protestant slave-owning, property protecting, liberty loving, rebellious, revolutionary, descendants of colonists from Britain.

You did note the contradiction between slave-owning and liberty loving, didn’t you? Glossed over here, the self-conflict, the national conflict, produced the U.S. Civil War in 1860.

In 1619, a Dutch ship unloaded, and sold, in Virginia colony, a cargo of African slaves. Slave trading in and out of Africa had been going on for thousands of years. This was no big deal, or was it?

Are we still dealing with the effects of this strictly commercial transaction, a sale of property, as it was viewed then, today?

As William Faulkner said, “The past isn’t dead, it isn’t even past.”

Conlaw has a long memory.

Conlaw takes, or should take, the long view.

Conlaw draws on a long, humane tradition going way back in our culture.

What is our culture?

We call it Western Civilization to distinguish it from that of Egypt, Babylonia, India, China, etc.

What are the primary sources of Western Civilization.

Clue: Each of us in Western Civilization rides astride two horses, galloping in opposite directions: one is the mysticism of the Judeo-Christians and the other is the clear, hard-thinking of the ancient Greeks. Rita Mae Brown.

I met a Texas petroleum scientist and his wife who had just returned from the Holy Land.

How did you enjoy your visit, I asked.

Well, he said, we’re Baptists and we went there to see the places where Jesus performed his miracles. But the Israeli tour guide kept showing us places where he said that “Tradition has it that this is the place where Jesus performed the miracle of the loaves and the fishes, etc.” We weren’t there to see places where tradition had it that Jesus performed miracles; we wanted to see where Jesus DID perform miracles.

Is this scientist riding Rita Mae Brown’s galloping horses in opposite directions?

What do we mean by “humane tradition?”

What happens when we ignore the better aspects of our humane tradition? Civil War?

Are all traditions good?

Slavery?

Jim Crow?

Anti-gay discrimination?

Anti-Semitism?

Must we re-think some of our basic attitudes?

What forces us to do this?

May the neighbors tell us what to do in our own bedrooms?

Suppose the neighbors get together and take a vote on what we can do in our own bedrooms, is this allowed in our country?

How about if what we do in our bedrooms is:

Engage in harmless sex with another consenting adult?

View adult films? Pornography? Obscenity?

Possess, view child pornography?

Cartoon or virtual (i.e. computer generated animations) of child pornography?

Possess, use heroin, cocaine, methamphetamines?

Marijuana?

Medical marijuana?

Suppose California law permits this but federal law prohibits. Whose law controls constitutionally? See Gonzales v. Raich (2005 or so).

Is Conlaw boring you?

What’s boring about this?

Do any of these little problems look like Conlaw problems? A Dutchman on a ship wants to sell a cargo of slaves in Virginia? Any problem? Not in 1619. Big problem after Amendment 13 is ratified in 1865. Bigger problem now in light of Amendment 14 and various Civil Rights and Fair Employment Acts.

SUPPOSE WE TRY TO IDENTIFY THE ELEMENTS OF CONLAW, AS YOU WOULD DO IN A COURSE IN CRIMES, TORTS, CONTRACTS, ETC.

FIRST, WE NEED TO DISTINGUISH A CAUSE OF ACTION IN TORTS AND CRIMES FROM THE RAISING OF A CASE OR CONTROVERSY IN CONLAW.

IN TORTS AND CRIMES, YOU LOOK WITHIN AN INDIVIDUAL CAUSE OF ACTION FOR ITS ELEMENTS;
IN CONLAW, YOU LOOK OUTSIDE OF THE CONDUCT OF THE ACTORS TO A HIGHER GOVERNING BODY OF LAW, THE U.S. CONSTITUTION.

THE STATES HAVE THEIR OWN CONSTITUTIONS, AND WHILE SOME OF THEIR PROVISIONS MAY LOOK THE SAME AS THOSE APPEARING IN THE U.S. CONSTITUTION, THEY ARE SUBORDINATE TO THE U.S. CONSTITUTION. WHAT PROVISION MAKES THIS SO?
SEE THE “SUPREMACY CLAUSE,” ART. 6, SEC. 2.

BY VIRTUE OF THE SUPREMACY CLAUSE, AS WELL AS THE THEORY OF THE CONSTITUTION IN GENERAL, THE CONSTITUTION IS OUR NATIONAL OPERATING SYSTEM, VER. 2007.
ALL OF THE OTHER LEGAL SUBJECT AREAS, I.E. CRIMES, TORTS, TAXATION, PROPERTY, ETC., ARE MERE APPLICATIONS PROGRAMS, BY CONTRAST.

CAN YOU THINK OF CASES WHERE APPLICATIONS PROGRAMS WERE GOVERNED BY THE OPERATING SYSTEM?

KELO V. NEW LONDON, on the power of eminent domain to take property for a public use (with just compensation after notice and a proper hearing); suppose private interests also benefit?
Suppose the taking is for a hospital? Is it wrong, therefore, to allow a private operator to open a gift shop to sell cards & flowers for a profit?

Suppose the taking is to build a highway, such as S/R 5 or 280? Is that a public use?

Then what about all the private trucking companies that use it to make a profit?

The first thing we do in analyzing a fact situation is to ask whether any aspect of it is governed by:

Text in the Constitution

A case(s) decided by the U.S. Supreme Court (hereinafter “the Court.”)

Or, if there is no such text or decided case on point, should the situation be governed by it in light of our better, more humane tradition as it has grown over millennia.

What about gay rights as enunciated in Lawrence v. Texas? Is this decision a humane result in civilizational terms, or does it conflict?

What about the 1954 desegregation (of public elementary schools) decision in Brown v. Board?

We look to who is acting upon whom?

Are these private actors?

In this case, we need to ask whether the Constitution reaches the private actor, or action, to provide governance, limitation, or control.

Are you allowed as a matter of constitutional law to choose your own friends? Mates, spouses? See Loving v. Virginia, Moose Lodge v. Irvis.

The Constitution frequently speaks in these terms:

Congress shall not…

No state shall…

The president shall be (the Commanderj-in-Chief…when called into the actual service of the United States…” Art. 2, Sec. 2, Cl. 1).

Note the shift in actor, from private person (which you are used to seeing and dealing with in Crimes, Contractss and Torts, to Government Actors.

Governments act by performing official acts, obviously enough. Too obvious to see, sometimes. We have Acts of Congress. The passage of a law is a government act. Laws are enforced by government agencies and government agents, sometimes called cops, FBI agents, Public Health agents, prosecutors, licensing officials, rule-making agencies, county boards of supervisors, city councils, police licensing authorities, market orders of trade commissions, decisions of the NLRB and other agencies, etc.

As soon as you see that a government body or agent, from the president or Congress on down to a street cop who kicks in a door or collars someone, you need to notice that government is acting. We call this a government actor. Treat this as an element of Conlaw, just as you would an element in a cause of action in Crimes, Torts, Contracts, Wills, Trusts, etc.

Note whether the government actor is acting against, or upon, a private citizen or another government in our system.

Can Congress, for example, pass laws binding on a state? How about a fair wage law? Or a public health and safety law? Or maximum hours? Minimum wage? Access to courtrooms for the disabled? See Hibbs v. Tennessee.

Note whether there is a conflict in the exercise of power between governmental components, such as:
Federal v. State.

These are called ‘federalism’ problems/issues.

Federal v. Federal.

Such as a conflict between the President and Congress, as now, over the war in Iraq, which the president appears to want to prolong over Congressional objections to shorten. Note that the People have something to say about this, as in “We the People…”

Who do you think set up this government of presidents and congress and the supreme court?

Who has the final say?

Sovereignty means having the final say.

The sovereign, or king, in a system constituted as a kingdom, has the final say on war, economy, and whose head is chopped off. See the Mad Queen, in Dickens’s ‘Alice in Wonderland.’

Who has the final say in our system?

Who is entitled to vote governments in and out?

To amend the Constitution?

In Conlaw, when looking to where the power lies, legitimately lies, we look to which person, institution, has the final say, sovereignty.

See “popular sovereignty” as the great invention of our system (as opposed to king, parliament, president, Congress, any state or all the states).

Our system treats the individual as being as important, in many respects, as the government, the president, Congress, any state, the police, etc.

Conlaw lets you look at all of these as subordinate to you, the analyst.

You must not be afraid to analyze fact-law situations as though you occupied some god-like perch with power to proclaim on the legitimacy of high government action.

Law students are often timid about doing this, being unused to criticize authority.

This is the place to overcome this fear.

It takes guts to pronounce on constitutional law issues, but this is what your client expects, that you will have the guts, based on your knowledge, training, experience, and personal moral character, to take on, meaning to challenge governmental authority it violates the Constitution, arguably at least.
This is the basis of the Vietnam anti-war protests, and of Iraq. Critics are speaking what they view as truth to power. This takes guts. Do you have guts? When do you plan to get some? Lawyers are supposed to have guts, along with intelligence and training in the law. This is why people go to lawyers.

As we proceed with our review, one of our main goals will be to identify the elements of Conlaw. I’ve only mentioned a few.

As a class project, we should begin to keep a list of major elements of Conlaw, in order to alert ourselves to what we must notice and speak/write about when discussing Conlaw issues in class, on tests, and in real life.

This will require a good note-taker who is willing to keep track of what we agree are notable elements which we want to keep in the forefront of our mind, and to share it with the rest of us.

Once we identify the elements of Conlaw, we should be able to speak of them instead of getting lost in the details of how bad someone’s conduct was. This may be important, but there is more to Conlaw than bad conduct. We need to see who is doing the bad conduct, a government actor, or not, and what difference this may make, if any. The 13th Amendment (anti-slavery) reaches private conduct, for example, while much of the rest of the text of the Constitution reaches mainly government.
When are private actors forbidden to interfere with or deny the constitutional rights of individuals? See Heart of Atlanta and Katzenbach v. McClung (Ollie’s Barbecue), and cases involving state action in private activities, such as leasing and licensing. See Wilmington, Delaware Parking Commission case, and the Brentwood Academy vs. the Tennessee Public School Athletic Association case. (“Too intertwined.”)

With this preface, let us do as follows:

We have five three-hour sessions, totaling fifteen 50-minute hours. Let’s set a goal of reviewing an average of at least three cases per hour (at fifteen or so minutes apiece), or nine per session, more or less. Call it 45 case. That’s close enough to make me want to analogize to a deck of cards containing 52 cards. Let’s try to review the "Top 52" cases, more or less. I'll provide a list very soon. Check back.

Your job, in reading these cases, is to try to identify why the case had to be decided by the U.S. Supreme Court in the first place.

You do this by noting the conflict in the country that produce the controversy in the first place.
Then relate the conflict to a constitutional text, case or tradition.

You need to write down who the actors are, governemental, private, mixed, how mixed?

You need to note whether government branches are in conflict (separation of powers).

Or whether the conflict is between a state and the federal government (federalism issus).

Or whether the issue is over the rights that an individual has, or claims s/he should have, as against the government.

These frequently take the form of whether the individual has the power to decide for him/herself (whether to have a baby, send a child to parochial school, or foreign language school (Roe/Casey, Meyers, Pierce), or whether the government (or the neighbors writ large, if you will) has the power to decide for the individual.

There’s thus a good Conlaw reason why the movement favoring abortion rights calls it “the right to choose,” meaning the POWER to choose,

While those opposed prefer claiming a “right to life.” Does the Constitution protect life? Where in the text?

Thus you need to be alert to whether someone’s power to decide for him/herself is being denied or impaired by government.

Which textual provision governs the issue of power to choose?

Try Due process of law.

But which? There are two varieties.

Procedural (Padilla)

Substantive. Meaning “life, LIBERTY, or property, which one cannot be deprived of without what? Due process of law. (Griswold, Lawrence)

Does this include privacy? See Griswold v. Connecticut, Lawrence v. Texas.

Or the question may take the form of whether a statute or other government act, or action, by a government body or agent, unfairly discriminates on some improper ground. Say a statute protects all but one race, or a cop ignores violations by all but one race.

We call claims based on suspect classifications like this to Equal Protection violations.

We look at the classification and ask whether it is bad or wrong.

Not all classifications are bad, wrong, or unconstitutional, especially as all statutes act upon classifications consisting of all or some people.

The Traffic and Penal Codes, for instance, operate on speeders and those who commit crimes. People who put themselves into such categories are punished, the rest are not.

Are universities allowed to consider race as a factor in admissions? See Bakke and the U.Michigan cases. Sometimes racial considerations are allowed in obtaining public benefits such as a publicly supported education. Why? Historical reasons? Diversity as something good?

What about the Privileges and Immunities clause? Is it used? See Saenz v. Roe.

Why isn’t it used much? Gutted by Slaughterhouse Cases (New Orleans butchers case during Reconstruction).

Or the (non-textual) fundamental right to travel from state to state, to settle, find work, start a business, receive welfare, vote, to be treated like a welcome guest? See the Articles of Confederation Art. 4, P & I, free ingress and regress from one state to another.

What about the criminal procedure, individual rights cases of the 4th, 5th, & 6th Amendments, and 8th Cruel and Unusual Punishment?

Have I mentioned the Commerce Clause, the huge grant by the states to Congress and the federal government?

Which led to Chief Justice John Marshall’s effort to aggrandize national power at the expense of the states;

And the counter-revolution, called states rights, which protected slavery for decades, and was resurrected by Chief Justice Rehnquist, who tried to pull the train in the opposite direction, away from central government power towards greater states rights.

Picture two trains going in opposite directions in parallel tracks, each car being headed by the above engineers, with each car being labeled with a separate casename.

Marshall: Marbury, McCulloch, Gibbon, Dartmouth College.

Rehnquist: U.S. v. Morrison (the Va. Tech rape case), Boerne v. Flores (the Texas church zoning case “proportional and congruous” (?). Marking Congress’s work according to quality of evidence taken (“anecdotal”).

By noting who the actors are, and which text, and cases, appear to be raised (you’re going to have to trust your mental powers on this, or you’re lost), you have the beginnings of an analysis.
Put down what you think you know, even if unsure or tentative.

Your mental powers will not lead you astray if you’ve been paying attention in school and around you.

Have I mentioned that Conlaw is all around you?
Well it is.

When you see a cop, a truck, a business, a bird, a ship on the bay, you are looking at Conlaw, because each is a subject of the text and/or the cases that interpret the text.

Your problem is to train yourself to look.

Thus you must get into the mental habit of looking and speaking to friends (or yourself, mentally) about the legal underpinnings about what you are seeing.

Are birds protected by treaties?

What if treaties conflict with state law? See Missouri v. Holland. See the birds down at Crissy Field next to the San Francisco Bay.

Orange pilot boats on the bay? Required by California law? (Yes). But I thought ships were instrumentalities of interstate commerce, a power given by the states to Congress to regulate. And these ships sailed through navigable waterways, federally regulated channels of interstate and foreign commerce, literally.

Where does California get the power to regulate in situations where the states gave the regulatory power to Congress?

See Cooley v. Philadelphia Board of Wardens, the pilot boat case. See the orange pilot boats on the bay so you don’t forget the principle of the famous Cooley-compromise case. What principle is this? Look it up. You’ll learn something about the Dormant Commerce clause. What? A clause is sleeping? Congress is sleeping? Is this putting you to sleep? Come back later.

The above is the grist for the Conlaw Mill, the Elements, if you will.

You must become accustomed to thinking in terms such as those above, and speaking and writing.

CLUE: The Table of Contents to your casebook is your roadmap, your outline, to the concepts you need to be able to spit out immediately. Otherwise you miss the big points and the result is that you cannot think, analyze, speak, or write in Conlaw terms. This has relevance for test taking.

If you resist, or cannot, then you have work to do, as you will be preventing yourself from “getting it.”
My guess is that if you sat through the lectures and read the cases for a year, and lived in the U.S. for a few years, you probably know more Conlaw than you realize.

Our job is to pierce the shell that’s keeping you from getting to the heart of it.

We also all need to practice our writing, including me; especially me.

Think of some writers that you admire who are very good at choosing just the right words to let the reader know what s/he is thinking, writers who avoid just labeling their feelings as “sad, happy, or angry” but explain through examples and other descriptive technique, and not just by hanging labels, exactly what, and why, they felt as they did in reaction to some situation.

My nomination is E.B. White, late of the New Yorker Magazine. See the Letters of E.B. White. He is also the co-author of Strunk and White’s Elements of Style, as well as Charlotte’s Web and Stuart Little.

What’s yours?

I like to speak in plain English.

I cannot write like the Supreme Court writes.

Those written opinions are a corporate product using professional editors. I don’t have that support, and neither do you.

So I’m stuck with plain English, just like you.

But the Constitution was written in plain English for plain citizens, so we have no problem right?

By the way? Who is the only person in our society who outranks a general?

That’s right, you do. You’re a citizen. You outrank the president. You can tell him what to do, but he can’t tell you what to do.

Feeling empowered?

Conlaw is the most empowering subject you will study, and it will stay with you long after you’ve forgotten Trusts and Estates, guaranteed, because you live and breathe Conlaw, every day, while T&E appears not every day, unless that’s the field of practice you enter.

At this point, our introduction must be interrupted, in favor of drafting a spreadsheet listing the 52 cases we need to review during our 45 hours together.

RS
SFLS
5-30-07

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