One of the big subject areas Con-Law is federalism.
Most real people have never heard of it.
Federalism refers to the conflict of interest that arises because we have a dual-system of governments: state vs. federal. It's called a dual-sovereignty system. Two kings, seated side-by-side on their thrones. The President vs. the Governor. Congress vs. Sacramento, in Cah-lee-fawn'-ia. George vs. Ahnold.
Maybe you didn't know that your state government was at war with your federal government, but that's the way it seems to work out in federal court. I've never even seen the issue come up to decide a case in state court. That's because it's a federal issue.
So we have dual-sovereigns. If the state cops don't getcha, the feds will. Or can. That's how a lot of the civil rights violations were prosecuted in the South during the '60s. Local juries wouldn't convict in race related crimes, but federal juries, selected from a broader range of states, not just one, might.
Before we had a federal government, there were thirteen colonial governments. When independence was declared, July 4, 1776, these colonies changed into states. You were a powerful dude if you were the governor of a state, like Gov. Clinton of N.Y. That's why he opposed the new constitution. Instead of being a big fish in a small pond, he'd be a small fish in a big pond. Power would flow to the new fish in the nation's capital.
So when the Founding Fish, oops, that's the title of John McPhee's book about the shad which fed Washington's troops at Valley Forge, I mean the Founding Fathers set up the new deal in 1787, the first new deal, that is, the states had been operating as states for eleven years. The Continental Congress wasn't doing so well.
Yes, it won the war, but it was losing the peace. Shay's Rebellion in Massachusetts was the big example. Soldiers who had fought and won the American Revolution had now gone back to their farms. They'd been paid in Continental dollars that were "not worth a Continental," as the expression went. Going broke, they started acting out, to protest the new government they'd fought to set up.
This is why Alexander Hamilton suggested convening a meeting in Annapolis to see what could be done to revise the Articles of Confederation, the first constitutional document of the rebelling states. It lasted eleven years, inefficiently. Only five men showed up in Annapolis in 1786, and they went home. They took with them the idea that the thirteen states needed to get serious about doing something to revise the Articles. That's why the met again, in 1787, in Philadelphia, again, urged by Hamilton, Washington's former aide-de-camp during the war.
In 1787, 55 delegates met in Philadelphia, only instead of revising the Articles, the delegates secretly chucked them and in lieu thereof, drafted our new slave constitution, the one we got rid of by the Civil War and the addition of the Civil War Amendments (13-no slavery, 14-due process, equal protection, citizenship, and 14-voting for freed slaves, subject to state voting laws, meaning no vote for women). Equal protection and due process, during the 20th century, became very big. We trace a lot of our liberty, liberties, to those.
The first Constitution was forced to allow slavery. The first Constitution held its nose and allowed slavery. You can tell that by the euphemisms employed to refer to it. You won't find the word. It was too hateful to use, and they knew it, all the while. That's why you don't see it, except on the ground where it existed by force of the whip and the lash, backed by law.
What saved us?
A belief that wasn't found in the Constitution but the Declaration of Independence, where it says "We hold these truths to be self-evident, that all men are created Equal, that they are endowed by their creator with certain unalienable rights, that among these are the right to Life, Liberty, and the Pursuit of Happiness -- that to secure these rights governments are instituted among Men, deriving their just Powers from the Consent of the Governed...
These beliefs predate the Constitution, underlie it, and inform the decisions made under it, on our good days, that is.
We've had a few bad days.
We try to learn from our mistakes. We lean in the direction of more freedom, not less. We don't readily give up rights, once recognized. Except under Roe. And except when it's panic time, such as after December 7th and September 11th. Then we're in trouble. The documents don't protect us. Their noble ideas may be written on our hearts, but fear over-rides them. Until we calm down over the next several years, it's a long process, calming down, and our brains kick in, once again.
See Griswold, Roe, and Lawrence, all having to do with liberty, privacy, and personal autonomy: being all that you can be, as you are, not as your neighbors might prefer you to be, and deciding for yourself, not having them decide for you acting through government, how you will be, and will behave, except to the extent you are hurting others.
"Mind your own business, government," in other words, the greatest liberty of them all, the flip side of "The Right to Be Let Alone."
You can find "the right to be let alone," as he defined privacy in Justice Brandeis's famous dissent in the 1928 case which allowed, under the 4th Amendment, wiretapping, U.S. v. Olmstead:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence [277 U.S. 438, 479] in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
Brandeis's dissent in Olmstead later becomes law. See Mapp v. Ohio (1961), quoting his words:
As Mr. Justice Brandeis, dissenting, said in U.S. v. Olmstead (1928):
"Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . .
If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
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That puts Brandeis right up there in the Pantheon with Jefferson.
When you find better expressions of deeply felt constitutional principle in plain language, I'd like to know about them. It's why I've picked up on the common expression, "Mind your own business."
This is what constitutional law is all about, getting government to mind its own business.
We all agree on the principle of the thing.
The fight is over what business rightfully belongs to the government.
What is the government?
It's us and our neighbors enacting our attitudes and beliefs into law.
This is what the fight over Roe v. Wade, the abortion case is about.
Who has the right to tell you to carry your fetus to term or not, to make a baby, to raise a child you cannot handle and do not want?
Who decides? You? Or the neighbors?
Mind your own business.
Leave me alone.
Stop invading my privacy.
That's Griswold, Roe, and Lawrence, privacy and liberty, coinciding, out of Brandeis's ringing dissent in Olmstead, supra, as well as two other cases of note, Meyers and Pierce v. Society of Sisters, by Justice McReynolds in the '20s. McReynolds was an arch-bigot, so conservative that he came around the other side when it came to his liberty. He accidentally benefited people he couldn't stand.
The Law of Unintended Consequences came back to undercut the more unkind of his beliefs.
Meyers struck down laws passed under the WWI anti-foreigner, anti-German hysteria, prohibiting German-American parents from sending their children to German-language school.
Pierce struck down a similar law, enacted against Catholics, prohibiting parents from sending their kids to parochial school.
Both were relied on by Justice William O. Douglas in crafting the privacy right recognized by the Court in Griswold v. Connecticut (1965).
McReynolds recognized both laws as a violation of the right of parents to educate and bring up kids according to the parents traditional cultural attitudes, beliefs, language, religion, etc. McReynolds was an anti-Semite. He refused to be photographed with Justice Brandeis, or to shake his hand. There are no universities built in honor of the memory of Justice McReynolds. There are two universities named after Cardozo and Brandeis. Cardozo School of Law at Yeshiva in New York, and Brandeis U. in Boston.
When the Founders set up the new federal government, the trick was to give the central, national government, just enough power to keep the British, the French, the Spanish, and the Indians, who had us surrounded, off our backs, while allowing the states to carry on as usual, minus all the backbiting and taxing of one another that was going on.
That's why the new Congress was given the power to regulate interstate (and foreign) commerce. And commerce with the Indians. The triple-whammy.
The problem is that once you give someone power over a subject, that subject has a way of expanding. The exception eats up the rule.
It's a little like telling the Japanese that they may no longer hunt whales for food.
Okay, fine, Japan said. Just allow us to catch whales to study, for scientific purposes.
Japan now kills a lot of whales. The Japanese look at them, pretending to study them. Then they eat them. Same game, extra step. Because of that tiny exception. The exception ate up the rule, and the Japanese eat up the whales.
Robert Moses was the man who built the bridges and parkways all over New York. He drafted the legislation giving the parks commissioner (him) jurisdiction over the parks. And of the roads connecting them. He had parks all over the state. He had a network of roads and bridges all over the state, all collecting tolls. All because he gave himself the power over not just the parks, but the parkways. That's what I call statutory draftsmanship of the first order. It's like the farmer who only wanted the field next to his.
I worked for Moses. As a lifeguard.
When he'd visit the beach, once a summer, we'd get a phone call from the previous beach he'd visited.
"Moses is coming,." they'd say.
His caravan of black Cadillacs with flags would arrive. We'd sit up straight in our chair, in case God himself was looking, too. See the Robert Caro biography of Robert Moses. You'll learn how to finance a bridge or a tunnel, how to run an agency, and how to play politics so the game is stacked in your favor.
It's easy. You want to build a highway? Let the local pols let the contracts provided only that you get to select the route. Contractors get contracts, laborers get work, an the pols get campaign contributions, or worse. You get your highway, they get their loot.
How are you going to pay for your highway?
Toll booths produce a river of money. Mortgage the river, selling bonds.
Banks will lend you the money to build all the toll bridges, tunnels, roads that you want. They own your river of money. They'll even let you use a FastPass to speed up the flow. No bottlenecks in this river.
But we were talking about the Commerce Clause, which also has to do with rivers of money, doesn't it?
Congress is supposed only to regulate interstate commerce. And foreign and Indian commerce.
This seems only fair, right? Why let the Warring States regulate commerce.
One of the things that Congress was prevented from regulating was local crime. Regulating means enacting laws governing, prohibiting, limiting, restricting, taxing, etc.) Local legislative bodies want to regulate local behavior, from malicious mischief to rape, arson, and murder. This is what local legislatures do, regulate against local crime.
This is called "the police power." The police power is defined as consisting of four main things: public health, safety, welfare and morals. That covers a multitude of sins, right?
Right, and that's exactly what Congress was not supposed to be allowed to regulate in any way, shape or form when the states set up the new federal government which includes the Congress.
Suppose your state makes it a crime to possess a concealed firearm, like a hand-gun, without a license, That's fine, right? States are allowed to regulate to protect the public safety, welfare, etc.
The police power to regulate within the states belongs only to the states. It's different if we're talking about federal territory such as military reservations, post offices, and national parks, but we're not talking about those. We're talking about ordinary state territory, like San Francisco, which is governed by the California legislature, overall. The local Board of Supervisors is considered to be part of the city, a political subdivision of the state.
But suppose Congress enacts a statute making it a crime to possess a handgun in a state. Can Congress do that? No said the Supreme Court. Because Congress wasn't given and therefore doesn't have the police power to prohibit anyone from carrying a gun in San Francisco or any place else, for that matter, outside of a federal reservation. That was the Lopez School Gun Case, U.S. v. Lopez (1995) 514 US 549.
How about if Congress is told that rape is a national problem and there oughta be a national law against it? Can Congress enact an anti-rape rape law outside of a federal reservation?
No! said the Court. Congress can't pass laws against rape, outside of the Air Force Academy or other federal reservation, in U.S. v. Morrison (2000) 529 US 598, the VAWA case (Violence Against Women Act).
How about if you commit a fraud by sending out a fraudulent mailer through the U.S. mails?
Or use the telephone, or the Internet? These things cross state lines.
Suppose you cross a state line for an immoral purpose, the Mann Act?
Or bring a stolen car across a state line? The Act.
Or kidnap a child across a state line? The Lindbergh Act.
All of these violations have been grist for the federal prosecutor's mill, and the federal courts, for the better part of a century. Congress has been allowed to regulate, i.e. criminalize, the acts because of the federal "hook," meaning the crossing of a state line, or the use of an "instrumentality" of interstate commerce.
There are two major categories of things in interstate commerce. Instrumentalities, and channels.
Channels are highways, canals, interstate and international sea-lanes.
Instrumentalities are the vehicles, boats, airplanes, etc., that make use of the channels.
The Court struck down VAWA because it said that rape didn't really affect interstate commerce, certainly in any substantial way.
A woman from New York who goes to college in Virginia, where she is raped, is the victim of a local crime, prosecutable by the local authorities, current theory holds. You might disagree by looking at all the women studying out of state, who, taken in the aggregate, are attacked. The Court has taken the view that this reasoning opens the door to too much federal power. You might justify anything this way. The argument is up before the Court again in the Raich v. Ashcroft medical marijuana case, soon to be decided. The leading case on "aggregation" is Wickard v. Filburn.
So she cannot successfully sue her attacker in federal court, as she tried under the federal VAWA statute in U.S. v. Morrison, supra, because the whole subject of violence against women did not sufficiently affect interstate commerce. Despite the idea that many women might be afraid to travel out of state to go to school because the local authorities may not be looking after the colleges and universities too well. That would be an adverse effect on interstate commerce, just as the old Jim Crow laws deterred many blacks from traveling. Blacks were refused accommodations in restaurants , motels, hotels. Until the 1964 Civil Rights Act was enacted, pushed by LBJ after the assassination of JFK. This was how that federal act was upheld, not on the basis of Equal Protection of the Law, but on the basis of the Commerce Clause.
It seems a little nuts today, but you'd have to have lived through the Civil Rights Era to understand how crazy the world was then. Almost as crazy as it is today, only in other areas. It's like the daily news. The stories are always the same. Only the names change.
So why does this come up now?
Suppose Congress enacts a law making it a crime to go all over the South burning down old wooden churches? Black churches. Arson. Congress ought to be able to pass a law against people burning down black churches, right?
Not so fast.
Not if this federalism idea means what I've just told you it means.
If it does have meaning, when they catch the arsonist and prosecute him in federal court using federal prosecutors to send him to the federal penitentiary, he ought to be able to defend on the ground that only the state where the fire occurred can prosecute him, not the feds. Because arson, like rape, is a local crime. Only the states have the power to exercise the police powers within their state, absent interstate commerce, that is.
Is this a good defense?
It is if you believe there's anything to this federalism idea, and the Supreme Court sure seems to think so.
How about if Congress doesn't like kiddie-porn. It's bad to exploit children. So selling, and possessing, pictures of exploited children is made a crime. This is good, right?
Not so fast. Congress wasn't given the power to regulate public health, safety, welfare and morals outside of federal reservations. The feds shouldn't be able to touch you if you possess kiddie porn, unless perhaps it crossed a state line or had some other federal hook attached to it, such as coming over the wire or airwaves, interstate, like on your computer.
If the federal porn-cops bust you for downloading kiddie porn that came in from the Netherlands or someplace out of state, do you have a defense? How about if you took a picture of your naked child with your own camera? Can the feds prosecute you? How? Suppose the camera were made in Japan? Is that enough? Suppose you made a phone call to your buddy in the same city, "Hey, c'mon over, I've got some kiddie-porn for you." That's a local prosecution, right? Not so fast. Suppose the call is directed through a telephone company router out of state and back? Does that make your crime, soliciting the distribution of contraband kiddie-porn, federal? Can the authorities federalize your behavior just by routing a cell phone across a state line?
Why even bother having rules of federalism if Congress can do that. Congress can regulate anything it pleases, provided only that there's a federal hook, someplace. How about you punch a guy in the nose in a bar-fight, only it turns out he was born in China or Australia, or Europe, or Mexico. Is a local punch-out now a federal crime because the dude came from elsewhere and crossed a state or international border to get here?
Why don't we just scrap federalism entirely?
Do they have federalism in Britain? France? I'll bet they've got plenty in the European Community, but I'm afraid I'm going to have to plead ignorance about that. I have enough trouble understanding our own.
Here's a neat article that goes more into what I've introduced above. Those examples, church arson and kiddie-porn pictures, are real cases, not made up. Maybe you thought I was kidding. I gave the church-arson example on an exam one year.
Expect to see more exam questions based on the above before you pass the bar.
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FINDLAW
Not all cases mentioned above are hot-linked to the case on Findlaw. This is not a problem, given the miracle of the Internet. Just click on the Findlaw hotlink, above, and enter the case-name in the search box, which will take you to the opinion, gratis, in an instant. Many of them have been mentioned on this site, which you may also do a Google search on, upper left margin, by entering the name and pounding that Enter button.
We used to have to go to the Library and pull out a stack of books, all carefully opened, to view the words of the linked opinions. We'd take notes with pen and ink. Then hire a secretary to read our scribbles, or learn to type on a manual typewriter, mistakes and all. And reshelve the books.
Sometimes you didn't feel like going to the library. Real lawyers never went to the library. Now we do this research and writing at home. No secretary, no handwriting, no copying by hand.
This may not be Heaven, but it's a lot better than the alternative.