Certain Con-Law cases, and textual doctrines, take on iconic status over the years. We point to a case or a phrase, or worse yet, the name of a section, and say, "Because the First Amendment says so, therefore...!" And that's supposed to be a piece of reasoning to end all argument.
But that's not how the law, or the legal process really works. That's just talk, a bit of verbal shorthand. Getting down to cases is the real chore.
The way Con-Law really works is that when a real question comes up it rarely fits so neatly into one of the pre-canned categories that we can just pull off the shelf. Sometimes we squeeze the facts to fit the doctrine, and but mostly we try stretch doctrine to fit the facts. Either way, there's some massaging going on to achieve a fit.
Wickard v. Filburn (1942) 317 US 111, is a case in point since it is receiving considerable attention in the media as the result of the medical marijuana case argued this week before the Supreme Court, called Raich v. Ashcroft.
We're supreme because we're final, not because we're always right, as one justice said, Robert Jackson, I believe. He authored the opinion in Wickard, in point of fact.
Justice Jackson, one of the better writers to serve as a Supreme Court justice, hired William H. Rehnquist, first in his class at Stanford Law (Sandra Day, later O'Connor, was #3 and had trouble finding a law job outside of legal secretary) as his law clerk in 1953, just in time to witness the Steel Seizure case, Youngstown.
Incidentally you can find references to some of the cases on this site by Googling on the name, placed in the box at the top of the left margin. I haven't written about a great number, yet, because I only started this trove of Con-Low lore, in October. We'll see how it goes. It'll keep going as long as I can afford to spend time on it. I'm only a part-time professor doing a near full-time piece of work. That means I need a little help from my friends when a matter comes up that requires able counsel, but enough of the commercial.
Jackson was an Upstate New Yorker, active in politics, who befriended and supported Franklin Delano Roosevelt when FDR was running for governor of the Empire State. Roosevelt appointed Jackson to be his Solicitor-General, Attorney-General, and then to the Court.
As S-G it was Jackson's job to argue the highly controversial New Deal cases before the Supreme Court.
This was the period of the Old Court, the Nine-Old-Men, the Four Horsemen of the Apocalypse, the Lochner Era, when the Court struck down "socialistic" New Deal legislation because it departed from the Laissez-faire unregulated capitalism they knew and loved so well.
"Substantive due process" it was called, when the word "liberty" in the due process clauses meant the liberty of management ("freedom of contract") to exploit labor, whose unions had not yet come into their own.
So Jackson was a big New Dealer, happy to put his faith in big government to help save the United States from the Depression and WWII.
In 1942 the Agricultural Adjustment Act of 1938 came before the Court. During the Great Depression of the 1930s (when my parents were in high school) that followed the Stock Market Crash of 1929, farmers were going broke.
It cost money to grow corn and wheat and to harvest it. It cost money to bring in the crop and get it to market. You had to hire men and machines. It cost money to feed cattle and get them to market. Farmers had no money. It was costing them more to stay in business than they could earn by bringing in a crop and getting it to market.
What would you do?
They let their crops lie in the fields to rot. They killed their animals. They poured milk into the ground.
Meanwhile, people in the cities needed food, for which they could barely pay. People were starving. Soup kitchens opened.
I had a client describe how his mother would give him a small cold potato in the morning and send him off to school. That was his meal for the day.
FDR tried to do something about this, because there were millions of farmers, then, and more millions of people needing food in the cities.
The AAA was an effort to regulate prices so that farmers would have an incentive to harvest their crops and animals, bring them to market, and make enough money to do it all over again next year.
Price supports, fair trade and marketing regulations, "parity," government subsidized restrictions on what could be grown and how much, were enacted by Congress.
Government paid some farmers not to grow unneeded crops. Farmers were being paid not to farm.
This still happens, by the way. It's hard to get rid of a government funded program just because the need has disappeared.
Farmers were penalized if they did grow certain crops in violation of government regulations.
Government was telling farmers what they could grow and what they could not. Farmers were businessmen in the business of growing. A growth industry, as it were.
If Congress could tell a farmer what he could grow and sell, Congress could tell any businessman what he could make and sell, and how to do it.
This represents a great deal of government power, a far cry from Congress's power before the Revolution of 1937. That was when the Court abruptly shifted position. Actually two justices switched position.
In 1935 the Sick Chicken Case was decided (Schecter Poultry Corp. v. U.S., 295 US 495) in which the Court declared unconstitutional FDR's National Industrial Recovery Act. FDR was so mad at the Court that he came up with famous Court Packing Plan. For every justice over age 70 (there were six) he proposed to add a justice whom he would appoint. He'd just been reelected by a landslide and the Democrats, his party, controlled the House and Senate. He must've thought he could do whatever he wanted. This would help the Court with its heavy workload, FDR argued, I guess with a straight face.
At the hearing on the legislation, however, Chief Justice Charles Evans Hughes weighed in with a letter stating that the Court was handling its caseload quite nicely, thank you, and did not need to be burdened with six rookies. It was challenging enough to keep nine in line, much less fifteen.
Well, Congress refused to go along, and when FDR's vice-president approached to give him what was going to be bad news, he asked, "Do you want it with the bark off, or the bark on?" Either way FDR was going to take a whack.
Shortly after this, Justice Roberts, who tended to flip and flop a bit, switched his position from knocking down New Deal legislation to upholding it in the West Coast Hotel v. Parrish (1937) 300 US 379 case, which overruled Children's Hospital v. Adkins, attorney Felix Frankfurter's losing proposition from 1923, in which the Court declared the federal minimum wage for women hospital workers in Washington, D.C. unconstitutional on Substantive Due Process (liberty or freedom of contract for management and labor, as though they were equal) grounds.
Roberts's flip in West Coast Hotel has become famous because of the label applied to it by Yale Constitutional Law professor Edward Corbin: "The switch in time that saved Nine." From FDR's Court Packing Plan, that is, perhaps a bit unfairly, as it turned out, because Roberts is on record as having changed his mind before the court-packing plan was announced. But why let the facts get in the way of such a good line.
In Wickard, farmer Filburn grew wheat and kept dairy cows. He fed the wheat that he grew to his cows. The rest he stored in his silo as feed, and to grind and bake for his bread. His was a self-contained operation. But the government agent cited him for growing wheat in violation of the new rules under the New Deal. Filburn appealed from Wickard, the Agriculture Secretary's, action, protesting that Congress had not the power to regulate his wheat growing activity because he'd taken himself out of the market. He wasn't selling wheat, he said. So, how could Congress regulate him, he must've wondered, and argued.
No economic activity on my part, he argued, and Congress has only the power to regulate interstate and foreign commerce, and among the Indian tribes. I guess Filburn wasn't a Native American either.
I actually heard a commentator on a talk show other evening describing Farmer Filburn's plight. She was describing what the fight was about while discussing the Raich v. Ashcroft medical marijuana case that was argued on Monday, two days ago. It was interesting to see legal commentators talking about what I'm teaching. The past isn't dead. It isn't even past. The commentators did a good job.
One of them was Dean Joseph P. Russoniello, our former U.S. Attorney, the fellow who gave me this gig.
Maybe that's what I should be doing, too.
Justice Jackson reasoned, in Wickard v. Filburn that it didn't matter that Farmer Filburn kept his wheat in his silo, off the market, to be used just by himself, while the prices were down because the market was depressed. Government was trying to help raise the market and Filburn wasn't helping. If he could grow what he wanted, so could 10,000 other farmers.
And guess what: when the prices went back up what do you think all these farmers would do? That's right! They'd unload all that grain in the silo, dump it on the market, and drive the market back down. We'd be worse off than before, in another depression. We didn't want that. The D-word was to be feared.
Wickard wasn't just about one farmer idiosyncratically withholding his crop from the market, it was about all of the farmers in the aggregate gaming the system, waiting for an advantageous change in the market, when they would all jump back in.
This was no way to run an honest crap game. And you can take that from an old Harrah's Club, Tahoe dealer, I'm proud to say. I learned a lot that summer.
So the Court held that if in the aggregate your activity can, may, or will affect interstate (or foreign, as a lot of U.S. wheat is sold abroad out of Chicago and the Great Lakes ports, see, e.g. Cargill, Archer Daniels Midlands, and other large traders) commerce, substantially, then Congress had the power to regulate the farming activity. Congress could prohibit activity, by ordering Farmer Filburn not to grow wheat, and to fine him if he did. Which is what happened, as Farmer Filburn lost his case against Ag-Sec'y Wickard.
Comes now Angel Raich, who grows marijuana at home, or buys it from the local Cannabis Club that Oakland was purporting to allow, to alleviate her painful medical conditions. The State of California has passed legislation that purported to permit her, and other sick people like her, to possess marijuana in some amount for medication.
This conflicts directly with the federal anti-drug scheme. As to drugs, we have Prohibition all over again, and it is working about as badly as alcohol prohibition did, probably worse. Prohibition of alcohol gave rise to rum-running (smuggling) and organized crime (Al Capone, Chicago, Bugsy Siegel, Las Vegas, and Joe Kennedy and his dynasty).
Today we have international drug cartels that occupy the economy of entire nations and a measurable chunk of our own. Marijuana is said to be Hawaii's biggest cash crop. What do you think California's is? Cotton? Lettuce? Guess again.
May California, as it did, allow Angel Raich to grow pot in her kitchen garden for her own use? When the federal drug scheme says she may not?
Ordinarily in the case of a conflict between state and federal power, guess who wins? Right, the feds because the Supremacy Clause, Art. VI, Sec. 2, states that "this Constitution, and the Laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land..."
So Angel Raich should lose, right? Not so fast.
We've got Congress's Commerce Power, and Wickard v. Filburn (1942) to contend with, don't we?
Congress's power has limits. Congress can only regulate an activity if, in the aggregate it has a substantial effect upon interstate commerce.
Does Angel Raich's home grown weed substantially affect interstate commerce?
What would you say?
Well, that's what the argument was about before the Supreme Court on Monday.
The government was arguing that Angel Raich was like Farmer Filburn in the sense that there were millions of other pot users out there who would just love to get their local faith healer to provide them with a letter stating that for health reasons it's just dandy for Joe Pot-head to possess all the cannabis he wants; it'll make him feel better and the federal drug enforcement scheme will all come tumbling down, like Jericho's walls, once the trumpet sounds.
But the real medical patients will grow their own, Angel's lawyer was in the position of arguing.
Who ya kidding, they'll buy it on the street, one justice observed.
Randy Barnett, conlawprof at Boston U., and former prosecutor, arguing for Ms. Raich, said that this case, if decided against her, will be the next Wickard v. Filburn, and are you sure you want that?
He may have been angling for the votes of the conservative new federalism, new states rights crowd, who could otherwise be counted on to side with the government in a dope case. Then he might score the votes of the liberal (ha!) wing of the court (Souter, a Repub, Breyer, the new government-man, Ginsburg, and maybe Stevens, 84, who may not have had much to do with pot). In this way Barnett may glom onto enough votes to avoid losing 9:0. Thomas is on record as believing that states have rights and Congress has limits, plus he's so libertarian he's coming around the bend and appearing on the other side. Scalia, my favorite independent, also has problems with the idea of unlimited power of Congress. O'Connor and Kennedy? May be torn between not wanting to narrow Congress's power by telling it that it cannot legislate to prohibit the personal use of drugs, for then it would be open season on other contraband, such as eagle feathers, ivory, and recreational cocaine, which is just "nose candy," as I heard a client describe it before he went away, wondering why. And they may want also to favor the states' right to legislate to protect their citizens who need alternative medication than that allowed in Walgreen's.
Chief Justice Rehnquist? He's out sick but still working, dealing, at 80, with throat cancer. Ms. Raich suggested that she felt he might benefit from medical marijuana, because for some people, like her, it's the only medicine that provides more help than hurt. It's illegal, of course, under federal law, and maybe California and ten other states.
Plus the justices are not likely to want to make the narc's job harder.
All of this has the Court-watchers in a tizzy.
The Conlawprofs on their listserv, their email forum, go 'round and 'round trying to figure out exactly what Wickard v. Filburn (1942) really means. Does it mean what it seems to say? That there are almost no limits on Congress's power to regulate arguably economic activity? How about to declare things like narcotics, eagle feathers, and ivory contraband?
Congress has no general police power remember, that was the big package held back when the original old thirteen states came up with the new national government. They didn't want to give up too much of their power to the new upstart government where they didn't quite know how it would work out. They didn't want to get hit over the head by an automaton of their own creation.
Wickard has been grist for the law school mill for over 60 years. Congress can do any thing it pleases so long as the activity it regulates can be called economic and has an arguable potential economic effect on something called commerce, which just about everything does.
But, again, not so fast. In 1995, for the first time since Wickard in 1942, or W. Coast Hotel v. Parrish in 1937, the Court struck down as unconstitutional Congressional statutes thought to be okay under its Commerce Power.
In the VAWA (Violence Against Woman Act of 1994) case (U.S. v. Morrison (2000) 529 US 598), the Court held that Congress had exceeded the limit of its commerce power in giving rape victims the right to sue their attackers in federal court. Fear of being assaulted while traveling across state lines was not held to have enough of an economic impact on the nation's economy to permit the national government to regulate it. So the law was held unconstitutional.
Likewise the federal School Gun Act was declared unconstitutional (in Lopez v. U.S., 1995) on the theory that a juvenile delinquent's bringing a gun to school had no real impact on the national economy, thus the national government had to leave bringing guns to school to the states to regulate, as they traditionally did.
Justice Scalia remarked at the hearing Monday that he'd always gotten a laugh out of Wickard v. Filburn. I'm not exactly sure why, but perhaps because when he taught Con-Law, in pre-Lopez, pre-Morrison days, Wickard was understood for the proposition that Congress could regulate whatever it wanted to regulate so long as the object or activity being regulated had an economic value, i.e. was worth a buck, to somebody across a state line when taken in the aggregate.
Lopez (1995) and Morrison (2000) put a stop to the joke.
Suddenly there were limits on Congress's power where there had not been since 1942 and even 1937 after the switch.
For 1937 was the year when the Court said it was going out of the business of regulating the wisdom of legislation, state or federal, if it made sense as a step toward achieving a legitimate legislative goal, and provided it wasn't otherwise prohibited or violated a constitutional guaranty, messed with defenseless minorities, or gamed the political system too badly. As to these three categories, the Court signalled that it was remaining in the game of striking legislation, acting as a superlegislature, as it were, and willing to use substantive due process (i.e., stating what the contents of the term "liberty" they were willing to recognize as protected by the two due process clauses, state and federal, 14th and 5th Amendments).
That, essentially was the holding of the Carolene Products case, 1937, and its famous Footnote Four.
So Wickard has now gone from an iconic case,solid as a rock, apparently, in favor of giving Congress great deference as to its power to legislate on virtually anything that arguably has an impact on commerce somewhere, sometime, to a holding that can be held up to the light to look for holes. And the closer you look, the more holes you might see, in light of subsequent legal developments such as Lopez and Morrison.
Which brings me to how I got started on this discussion, entitled "Circle of Confusion."
This is a photographic term. It refers to the resolution of a photographic image. It stems from the days of black-and-white photography, particularly when it came to making prints from negatives.
In the darkroom, the photographer, or artist such as Ansel Adams, needed to make sure that the light shining through the lens of his enlarger was in perfectly sharp focus on the light-sensitive paper which would become his print. He might make a test print and examine the resulting image with a 10-power loupe.
What he would see, under a high enough magnification, was a crystalline structure of darkened sodium nitrate granules. Sodium nitrate is the chemical that Kodak and the other paper manufacturers mix into the matrix we call photographic film and paper. Struck by light, sodium nitrate turns black. The more light, the more sodium nitrate crystals turn black. That's how we get shades of gray in photographs. More and less light in the exposing of film, more and less light in exposing light sensitive paper; result: art.
If the manufacturer uses large crystals in its film or paper, the result is a grainy photograph, and most photographers want sharp photos, not grainy, especially for portraits of people.
The closer you look, the grainer the photographic image. You have to step back to see the picture with clarity. Step back too far, and you see a blur. Look too closely, with that 10X loupe, and you also see a blur. If you look at the dots which comprise the photos in your newspaper, you'll get the same idea. Under magnification, you lose the picture for the dots. You see trees when you wanted to see forest.
When you see clear edges, just, say, before the iris of the eyes breaks up visibly into granules, or pixels, then you'll have the sharp image you are looking for. Beyond that, you've entered the circle of confusion. It takes a sharp eye. Incidentally, if you've got the eyes sharp, the photo will appear to be in focus, even if the ears are not. We instinctively focus on the eyes first, it seems. But if the ears are sharp and eyes not, the photo will seem out of focus.
There's a wonderful photo, published today, of former Red Sox pitcher Pedro Martinez, acquired by the San Francisco Giants, in which, using a slow shutter speed, the pitcher's arms and legs are an almost complete blur as he goes into the wind-up. But his eyes, moving not at all, are sharp. The picture seems in focus, conveying an impression of movement and concentration.
Same deal with Con-law cases. Looked at from a sufficient distance, we think we see them with clarity, as standing for some idea we can just put a label on and point to. But put it under intense scrutiny, word by word, paragraph by paragraph, idea by idea, and then look at the source of those ideas, and what do we wind up with?
An image that's not necessarily out of focus, but one in which we have looked so closely that we are seeing the edges of the crystals used to make up the image, no longer the image itself. We have reached what photographers call "the circle of confusion," the point at which we lose sight of the image for its component parts.
In today's computer technology, this would be seeing the individual pixels that comprise the letters you are reading, instead of the letters. At 1200 pixels you have a really sharp image, and edge. At 300, you have an acceptable image. Go too far below that and you don't.
Beyond the 'circle of confusion,'you can analyze, see no further, unless that is your goal. You could, with a powerful enough microscope, say an electron microscope, take the view down to the molecular, even the sub-molecular level, but you will not see a sharper image, only the jagged edges of the particles used to form the image.
You can do this with words, too. With words we call this business of going deeper and deeper into the meaning of words that are critical to your case, going into an "infinite regress," and this way lies madness.
Jurors are not supposed to conduct their own research during deliberations. We don't want them coming up with new word definitions when the judge has already provided hard-won legal definitions.
I tried researching the meaning of words, once, when the legal system was behaving irrationally, threatening to put a rare innocent client into prison for longer than ever.
What do we mean by 'rational,' I asked, and the research took me back to the pre-Socratics and then forward to now. I read a lot of books. You know the pre-Socratics, don't you? The philosophers who were just waiting around for Socrates to appear?
I'd thought, silly me, that despite Holmes's warning to forget logic, that the law is built on experience, that at least here in my America it ought to behave rationally in any system that I was part of.
Have you ever tried to explain the word 'rational' without using the word 'rational' in the definition? Using the word 'reason' doesn't count, for it means the same thing, from the same root, etc. You cannot do it.
That's what took me to Ancient Greece. I was going to wring it out of the bastards. The Agora was empty, however, except of tourists like me, unfortunately, and they were of no help.
Well, I saved the client, despite myself, but had I listened to Holmes, I probably wouldn't have read all that I did and made that trip to Greece, Ancient Greece, that is, with evening emergences into Athens' Plaka District nightclubs and dancing, a la Zorba, but that's a whole 'nother story that I'm not ready to work into this blog yet.
Why would a sane attorney do so much work on behalf of a client? Leaving aside a fact not in evidence, no client can pay for all this.
The answer depends on how you view what you do as an attorney. Defense work is more than an effort to pay bills. Hamburger flipping pays bills. We think, as attorneys, that our work is important. Individual cases may take years of struggle. They command all of the concentration, thought, effort, imagination, and creativity one can muster.
Some of the effort, a lot of it in fact, was the product of the first stage of the litigation, the criminal trial. The hope was that the additional work, which also took me to Salem, figuratively, would bear fruit in the client's attempt to see his daughter again, in the civil litigation that followed. It didn't.
You do this because you cannot help doing it.
You find that you are a creative person, and creativity is a plant that demands continual watering.
You might even take up watercoloring. It relieves intense creativity in one area by substituting relaxed creativity in another. Or as Golda Meir, the Milwaukee born premier of Israel once said, "For me, a change of headaches is a vacation."
See the Sargent and Homer (Winslow, that is) sites linked hereto.
There's a limit, in other words, to how far you can push a legal idea.
Going beyond that limit becomes unreasonable, but where this boundary between reason and ridiculousness is located is a matter of good legal judgment. This is why we use designated judges, in the hope that theirs is better than the average guy on the bus for various reasons of education, experience, training, stability, intelligence, sense, common or otherwise, and the like. Sometimes it even works.
This may also be why judges aren't necessarily the most popular people you can think of. How many are able to measure up to the ideal that exists in your head? Not very many, I'm sure. Some of them I grew up with. I know. Some of them are seated next to you in class. Poor you. Hell, one of 'em might BE you. Poor us.
If you are fighting a cause, as criminal defense work may involve, you are far better off appearing before a judge who is a stranger rather than a close friend who happens not share your concern for justice in this matter, for this judge is more likely to personalize your struggle and try to teach you a lesson which you will not like.
In kicking around the meaning of cases, one of the Conlawprofs on the listserv was deriding the views of a particular female justice, calling them just her 'intuition.' Another professor took issue with the possibly sexist reference to intuition, as in 'feminine intuition.'
The first professor said, oh, all right, let's just call it judgment, instead.
The second professor said she preferred studying legal principles, which she found more interesting, than studying justices, which she didn't.
Fine, said the first professor, but he still thought this justice's deciding views were "just inkblots."
As in the Rorschach Inkblot test, where the shrink asks you to look at random inkblots and to state what they remind you of.
They remind me of dirty pictures, said one test subject.
My, you seem preoccupied with sex, remarks the psychiatrist.
Then stop showing me all of those dirty pictures, says the patient.
Ba-dum!
So, Con-law cases are like inkblot tests to the justices.
They show us what the justices are made of.
At this level the professors are like the photographer peering into his 10X loupe. They've arrived at, or beyond, the circle of confusion.
I suppose this is what law professors, and lawyers trying to see whether their fact situation fits the doctrine or whether the doctrine can bear to be stretched to fit their facts, are in the business of doing.
They're trying to see how far they can go with an idea before being laughed off-stage. Some lawyers actually use "the laugh test." If their argument can't pass that, they can't use it. See also, 'smell test,' which you can figure out for yourself.
I don't know how Raich v. Ashcroft will turn out, but I wouldn't bet on medical pot possession becoming legal any time soon.
What I do know, within a reasonable degree of legal uncertainty, is that the Court will provide us the answer this Term, unless, of course, they kick the case over for re-argument until next year, which could happen, since we have a very ill chief justice. I was almost going to say "legal certainty," but I changed it when I recalled that absent justices sometimes cause rehearings. I've reached my own circle of confusion on this, haven't I?
Richard Feynman teaches that it is usually a poor idea to borrow ideas from one field to apply to another where they don't belong. But law is the business of borrowing ideas from Place A and using them to advantage, as limited as it might be, in Place L., the law.
So I'll just make a glancing reference to Werner Heisenberg's uncertainty theory. As I understand it, what this means, basically, in nuclear physics (not my field, actually), is that if you succeed in peering deeply enough into the structure of an atom, the act of looking interferes with your ability to see what is going on to the degree that you want. Because, I think, it takes time for light, whether ray, particle, or both, to travel. So by the time you see what you think you've seen, time has elapsed.
The image that reaches your recording device, or your eye or mind, is not the image that exists any more. Starlight, we are told, has traveled many light years to reach our eye. The source of that light may have died a million years ago, and we will not learn of that fact for that long.
There is an art to science, photography, and yes, I suppose law. All are creative to the extent that we deal with a certain amount, make that a rough amount, for nothing is certain, is it, of uncertainty.
Uncertainty, however, is what makes a living for scientists and lawyers. And artists among all of us. For we're all dealing with the same universe of uncertainty.
For those of us who crave certainty, and we all do in some contexts, we have a different invention, called religion. Some of us think we handle uncertainty better than others, that's all, with or without benefit of clergy.
Whether we do or not depends on the area we're dealing with, that's all.
That's all.
If you'd like to see an Associated Press report, compiled from court reporting service, as to what several of the justices actually said to counsel during the oral argument of Raich, two days ago, you'll find the quotes here.
Conlawprof Marci Hamilton discusses Wickard, federalism, intra-state commerce, effects on interstate commerce, what-if-everybody-did-it, the difference between growing pot and wheat, states rights, and other more-or-less good stuff in her Findlaw column (12/02/04) here.
Here's a Yahoo link that reports several of the verbal exchanges between the justices and the attorneys arguing the Raich case on Monday.
http://tinyurl.com/53g9l
Posted by: rs | December 01, 2004 at 05:36 PM