Sheridan: Con-Law

LEARNING CONLAW

After a lovely Thanksgiving dinner yesterday, while we were relaxing chatting and watching the little ones (the grandchildren and their extended cousins), a most charming guest mentioned that lately she'd been thinking she wanted to understand more about Constitutional Law, since it comes up so much in the news.  Did I have any suggestions?

I did.

Conlaw is a broad river, which can be entered at any point.  It's a question of how wet you want to get.  For most real people (non-lawyers) one convenient way might be to pick up one of the recent biographies about leading figures in the early stages of the building of the nation.

The one I had in mind at the moment was Jon Meacham's  American Lion (Random House, 2008).  I'm a little better than 50 pages into it, but am quite enjoying reading about Andrew Jackson.  While in Nashville at a nephew's wedding recently, Marie and I drove the dozen milles or so to The Hermitage, which is "Old Hickory's" plantation.  He was the largest slave-owner in the county, which the tour guide didn't downplay, at least not too much.  Things were different then.

Jackson is known for winning the Battle of New Orleans against the British in the War of 1812.  It's not his fault that the war had been over for two weeks as word traveled slow from Ghent in those days, where the treaty was signed.  He also captured Florida from Spain, which we needed for the sunshine, of course.  He was also an Indian fighter of the first order.  But this was only the prelude, the horse he rode into the White House on, as these military exploits made  him famous.  They also made him the first president from what was becoming known as the West, as in cowboys and indians.  All of the previous presidents had been aristocrats, mostly from Virginia (Washington, Jefferson, Madison and Monroe).  Adams was from Quincy, Massachusetts, near Boston.  Jackson was the first "common man."  It made a difference.

As president, he fought the bank.  Today we rescue banks, but Jackson fought the big one.  How he hated that bank, because he blamed it for the depression the nation found itself in, but not only that, the president of the bank, Nicholas Biddle of Philadelphia, spent a lot of money to ensure Jackson's election defeat.  He also had congressmen and senators, such as Daniel Webster, on the under-the-table payroll.  What better way to buy a congressman than to lend him money and hold his note.  But the controversy went even deeper than that.  It went back to Washington's cabinet, before we had political parties in this country.  "Factions" were strongly disfavored at the time of the founding.  Back then there was only one 'party,' and that was the one that rebelled against King George III.  All other issues, most anyway, were put on the back burner pending the outcome of the revolution.

But guess what.  After the Revolution new things developed fast.  Both Hamilton (the first Secretary of the Treasury) and Jefferson (the first Secretary of State) found themselves at loggerheads.  Hamilton could be likened to Mr. Wall Street.  He actually lived around the corner from Wall Street in New York as this was our first seat of government, Washington D.C. not yet having been invented.

The problem was that the nation was bankrupt at birth and had lost the protection of the British navy, with no navy of our own.  There was no income tax to pay the bills.  How was the U.S. going to pay its bills?  It couldn't go back to France for another loan because France had bankrupted itself helping us rebel against Britain, not because France loved us, but because France hated Britain.  Some things don't change, as I was saying.

The U.S. depended on customs revenue, the duty on imported goods, the sale of federal land in the west, which wasn't very far west in those days, and the excise tax on alcohol.  There were few roads between the interior in those days and no canals or railroads yet.  It was expensive to load a wagon with corn or wheat and haul it to market behind a team of oxen.  It was easier, cheaper, and more tasty to turn the grain into alcohol and haul that.  You got more bang for your buck.  And you might decide to put some of the liquor on a flatboat and float it down the Mississippi towards Spanish New Orleans (this is before Napoleon grabbed it from Spain which might have been run by his brother).  As you can see, things were different then.  The country was hardly set up.  It wasn't even shaped the way it is today, Texas and California not having joined the union, much less the states founded on Jefferson's purchase of the Louisiana Territory from the same Napoleon, who needed the $15 million purchase price to fight the British on the Continent and at sea.

So if you want to understand Conlaw today, you need to understand a bit about the history of the country whay back when, because the attitudes then and the controversies that arose out of them, are what shaped not only the Constitution (1787, Philadelphia), but the interpretations of what could be done under it.

For example:  Did Jefferson have the power (or right) to purchase the Louisiana Territory from France?  There's nothing in the Constitution that says the president has this power.  You'd have to imagine that the framers of the Constitution would have approved had they thought of it.  Jefferson, who professed to be a strict constructionist when someone wanted to do something he didn't like, suddenly became a loose constructionist when he thought it good for the country.

Our first two political parties grew from the factions that arose around the competing Hamilton and Jefferson in the cabinet of Washington.  Hamilton, the businessman, wanted the national and state debts paid.  By honoring the debts incurred to win the war of revolution, the new nation could return to Amsterdam and borrow more money.  To handle the nation's revenue stream, Hamilton needed a bank.  Thus the first Bank of the U.S. was established, also in Philadelphia.  It was chartered for 20 years and then the charter ran out and a new charter was required.  This 2nd Bank of the U.S., also in Philadelphia, is the one that Jackson later kills.  Jefferson tried to kill it before he did, in a famous constitutional law case, called McCulloch v. Maryland (1819).

Jefferson hated the people associated with Hamilton, the Wall Street types of the day, the people who speculated in warehouse receipts, bills of lading, IOUs, and in particular the Continental dollars issued by Congress to pay the soldiers who did the fighting and dying.  Unfortunately Washington was not the world's greatest general when it actually came to fighting battles.  He lost the Battle of Brooklyn and was forced to retreat across the Hudson River to New Jersey.  He retreated all the way to Virginia before he was done retreating.  This was very bad for the value of the dollar.  Remember the slogan which has come down to us, "Not worth a Continental"?  Well, that was Washington.  Fortunately he was a very good retreater and he beat the  British that way, but that's another story for another day.  The problem was that the people holding all these almost worthless Continental (because issued by the Continental Congress during the war, before we had a constitution, only the Articles of Confederation) were the speculators and Wall Street types who had paid the soldiers maybe ten cents on the dollar.

Jefferson was in favor of leaving the speculators high and dry, holding an empty bag.  Hamilton argued that this was wrong.  The soldiers had sold the near worthless paper for what it was worth at the time and accepted their bargain.  The buyer took the risk and should receive the benefit of his bargain.  The nation needed to stand behind its promises and every Continental dollar represented a promise by the U.S.  Europe would long note how the U.S. treated its promises.  Hamilton won and the U.S. honored its promises.  The speculators made out, being paid one-hundred cents on dollars for which they'd paid a dime.  Jefferson hated the thought.

But a funny thing happened.  In order for Hamilton to win Jefferson's support for the plan, he had to cut a deal with the Sage of Monticello.  The deal was an agreement to situate the new capital in the South, and that's how our nation's capital went from Philadelphia to New York to D.C.

So far all we've discussed is constitutional lore and history.  It doesn't become law until either put into the Constitution or decided into it by the Supreme Court, and here's where the plot becomes thicker.

There's nothing expressly written in the Constitution that gives the U.S. Supreme Court the power to do anything except decide certain appellate case and a very few original claims allowed to be brought there initially, which never come up, actually, having to do with ambassadors.  Article III.  It helps to have a copy of the Constitution around to look up references.  I keep a well-thumbed, highlit and marked pocket version published by Oak Hill Publishing that you can find in the bookstores.  I buy them by the hundred and give them away, but didn't have one on me over Thanksgiving, alas. However, I've got myself organized and have sent one on its way.

The wonderful book which explains this controversy between Hamilton and Jefferson, is Ron Chernow's "Alexander Hamilton."

The reason it's worth mentioning is that the foundations of our Constitutional law are laid as the result of these controversies.

You see, when the 2nd B.U.S. was up and running, there was another depression (called "Panics" then) and a lawsuit was filed challenging the power of Congress to establish a bank.  Just as there was no provision in the Constitution allowing the purchase of Louisiana, there was no express authority given to establish a bank. See Article I, Sec. 8, which lists the powers that Congress does have, such as provide for an Army and a Navy (but no mention of an Air Force, Coast Guard or the Marines), so where do we get them?

The Supreme Court had to decide whether we could have a bank.  The Chief Justice of the U.S. was John Marshall.  He'd fought with Washington and wintered at Valley Forge, a bitter experience.  Congress had no money and the soldiers had no barracks, no shoes, no coats, and no food.  Very little, at any rate.  They barely survived.  Marshall learned what it was like to have a weak central government that was dependent on the states for voluntary handouts to support the soldiers (the Continental Congress had no power to tax the 13 rebelling colonies, now "states").  So when he became Chief Justice, appointed by Adams, you can be sure that he viewed all cases through the lens of whether the decision favord a strong central government or its polar opposite, the states.  His job, he reasoned, was to keep the federal government, the one he'd sacrificed at Vally Forge and fought for, strong.

He was a Virginian and a cousin of Jefferson, whom he hated.  Jefferson had a different view of the world from Hamiltion and Marshall.  Jefferson believed, at a time when 90% of the country were farmers, that farmers were virtuous.  Bankers and speculators, to him, were thieves.  Imagine him voting to bail out Wall Street.  He was a Main Streeter, even though he was a debt-ridden, slave-owning aristocrat.  Apart from that he was fine.  Jackson was a follower of Jefferson.  To this day the Democratic Party celebrates a Jefferson-Jackson day dinner.  Lincoln was a Republican but I haven't heard of the GOP giving him a dinner in a long time.  They've become the party of Hamilton.  The names of the parties have changed, causing a bit of confusion, but the basic poles around which they revolve economically have remained the same, Wall Street vs. Main Street, let's say.

To spare the reader, let's wind this up.  To get grounded in Conlaw, try the bios of Hamilton and Jackson, then check Doris Kearns Goodwin's "Team of Rivals" about Lincoln and fill in from there.  The Civil War produced what I refer to as Constitution Ver. 2.0.  Lincoln's Gettysburg address, borrowed from the Declaration of Independence, reintroduced America to the notion of equality.  It took another hundred years of Jim Crow and the Civil Rights Revolution emblemized by Dr. Martin Luther King, Jr., to sloowwly try to wipe out that, which is why some people have trouble realizing that in six weeks we'll have our first black president. 

But one last thing.  Marshall, in a case called Marbury v. Madison (1802) held (meaning decided as a matter of law) that even though the Constitution doesn't expressly give it the power to rule acts of Congress unconstitutional, the whole idea of having a constitution means that anything that is enacted contrary to its meaning must be unconstitutional, and if that is so, the governmental act must be null and void.  This is the entire basis of all subsequent decisions holding laws and acts of government unconstitutional, from Brown v. Board of Education (1954), to pick a postwar example we're all familiar with to Lawrence v. Texas (2004) recognizing civil rights for gays.  I suppose that Marshall could have held that Congress, or the President, or someone had the power to declare acts of the other branches unconstitutional, but he reasoned that since a case had been brought in a court (his), it was logical and natural for the Court to have this wonderful power.  I call it John Marshall's Big Axe, like a fireman's axe, useful for breaking down doors in flaming buildings, such as ours.

And to conclude, Marshall decided in McCulloch, that in order to have a strong central government (as opposed a strong government of the states), the Framers had given Congress not only the powers expressly listed in Art. I, Sec. 8, Clauses 1-17, but another killer clause and power:  the power to do all that was necessary and proper to carry out all of the previously listed powers.  So that if Congress had power to raise money and coin money to pay for an army and navy and to run a government, it was only natural to agree that it could have the power to set up a bank to enable it to do all these things effectively.  Jefferson's view lost again.  The strong central government view won again.  All during the next decades, the cry of "strict construction" and "states' irghts" became the war cry of the South and the proponents of slavery.  These slogans became substitutes for "Don't dare threaten our right to own slaves and bring them wherever we move."  This becomes a problem when we acquire new territory and the anti-slavery people in the north, who've stood still for the accepted practice of slavery in the South, object to its being exported to California, acquired from Mexico.  This results in the Civil War, of course, and even more Constitutional Law, with the enactment of the Civil War amendments, 13 (free the slaves), 14th binds the equality principle to the state, not just the federal government as the 5th Amendment had done, see Barron v. Baltimore, another Marshall decision from about 1835, and the 15th (right of former slaves to vote, effectively thwarted until after the Civil Rights Act of 1965).

The Fourteenth Amendment becomes a fountain of individual civil rights (liberty, due process of law).

Constitutional law is first a matter of power, whether government has it and if so, which government branch, Congress, the President, or the Court, or the states in our federal tug-of-war between central government and local, meaning state.  Assuming we've got that set up, then there's the other Conlaw hemisphere, individual rights, such as whether you have them or not, from matters of race and ethnicity, to contraception and abortion, to gender equality in matters such as the right of gays to marry, the right to be brought to court for a hearing on your detention (the Guantanamo cases) and your right to be protected against torture if held by Americans.

Constitutional Law is the mirror which tells us, and the world, what kind of a people we are.

One reminder, however.  Once you get started bathing in this river, you can never stop.  Your mind won't let you.  It's easier when you realize that Conlaw is not a distant academic subject written in a book that you can put down and forget.  It's all around you from the cop on the beat to the boats in the harbor to the birds in the air.  Even the raindrops are a matter of Constitutional Law.  Are you free to save them in a barrel?  Not in Colorado, you're not.  Is that Constitutional?  Can Colorado prevent you from catching raindrops?  In Conlaw terms, does the state have the power?  Or do you have the liberty?  Whose choice is it, anyway.  How should we interpret the constitution in this regard?  See the abortion controversy.  See the Prop. 8 controversy in California, right now. 

And on and on and on...

For further on the Raindrop Controversy, see below, in which I posted a comment to the Conlawprofs listserv which was picked up (on 11-21-08) by a leading Conlaw blog called The Volokh Conspiracy and drew a number of comments in turn, which gives you an idea of what can happen to a Conlaw idea:

POLITICS

Constitutional law is politics, by other means.

This is a take-off on Clausewitz, who said that "war was a continuation of politics by other means."

When Constitutional law is found wanting, such as in tolerating slavery, what do we do? 

Well, we went to war in 1860.  The South determined that it had a right to secede over the threat to slavery.  Lincoln and the North determined to fight it out.  Since the North won, the Constitution changed, and was changed further, but the addition of the so-called Civil War Amendments that forbade slavery, made blacks citizens, and provided for voting for blacks, at least on paper.

The anti-slavery folks argued in favor of a higher law, the law of the Old Testament and the New, the law of God, that they held militated against slavery because these folks believed that their faith supported the idea that human dignity, the respect that we, as humans, owe to one another, prohibited treating each other as worthless people, or animals.  As we would not be slaves, neither should we enslave other human beings.

See Team of Rivals, by Doris Kearns Goodwin (Simon & Schuster, 2005), for a most interesting account of how Abraham Lincoln progressed in his thinking from provincial attorney to state and national candidate, to Civil War president, on the question of race relations in America, as contrasted with his rivals, many of whom became the members of his cabinet.  One's racial views influenced ones politics, and vice versa, it should come as no surprise.  Has this changed?  Really?

Today we take for granted that slavery is bad, outlawed, and so inconceivable that we don't even think about it any more.  Slavery has become an archaic word, despite that fact that the practice still exists.  Where?  In Africa, just as before.  Students find this slightly unbelievable.  Far be it from me to tell students what to believe.

The other thing we might do, apart from waging civil war, is to appeal to a "higher law."  That's a bag of principles derived from wherever that hasn't quite made it into the Con-Law Canon, quite yet.  Such as that slavery is very naughty, indeed, and you wouldn't want to be one.  A slave, that is.

I like the idea that there exists a "higher law."  It reminds me of the transcendentalists of Concord, Massachussetts, in the century preceding the one in which I wuz borned, as a fellow StatNislander likes to put it.  There's an Emerson HIll on Staten Island, New York, named for Ralph Waldo's brother, who lived there, while Waldo visited the bucolic borough where I grew up and served for many summers as a lifeguard on the beaches looking out across the Lower New York Bay towards Sandy Hook and the Atlantic Ocean.  If you believe in a higher law, you might qualify as a transcendentalist, as Emerson and his friend Henry David Thoreau, the champion of civil disobedience did.  Mahatma Gandhi and Martin Luther King, Jr., took considerable inspiration from Thoreau. 

One day Emerson visited Thoreau in jail, who had been placed in durance vile over an issue of slavery, if memory serves. 

"What are you doing in there?" asked Emerson. 

"What are you doing out there?" replied Thoreau.

That about says it all, doesn't it.

One day at a seminar on criminal law down at Stanford University, the speaker challenged the audience to stand up if they'd be willing to go to jail to support this major premise of the criminal law.  Almost everybody stood.  But not me.  I've known criminal lawyers who've gone to jail.  The better to pick up new clients, goes the gag.  My theory is that the court can do what it likes to my client.  There's always another court above this, I figure.  My value to my client diminishes in direct proportion to the length of time I spend in custody in his behalf. 

Better I should stay out and go back to the office and draft a petition setting forth the circumstances than to go behind bars and fill out canteen slips asking for toothpaste, please.

Perhaps you have a better plan.

Be sure to let me know.

WHO WINS VS. WHAT WINS

One of the confusing things about Constitutional Law is that it's different than ordinary law cases.

In the cases we see dramatized on TV, or imagine we may have to see a lawyer about, such as an accident case, what matters is who wins.  Does the bad guy get off or get convicted?  Can we recover damages if involved in a collision?

In ordinary legal matters, we focus on the the benefit or loss to an individual's liberty or purse.

In Constitutional Law, we're much less interested in whether Michael Newdow, personally wins or loses the case he brings protesting the use of the term "under God" in the Pledge than we are about some thing, the thing in this case being the idea whether government can force us to make a pledge using the words "under God," in a country where we say that there is a separation between church and state for historical and good reason.  We don't want to trip over the same stones again.

Likewise with the two recent Ten Commandments decisions.

In both Newdow and in the Ten Commandments, we all know that there is supposed to be this separating wall, but we can't agree on how high it is and what is allowed on this side of it, or to remain, from the religious side to the secular side.

The justices, not surprisingly, know that the Court is unable, as an institution, to get everybody to agree, since not even the justices agree as to height and inclusion.  So they are forced to slide around the issue to avoid a confrontation, or to cut the baby in half to satisfy both sides in the service of some principle.  It's not easy, slicing the bacon that thin.

In Newdow, the Court ducked, saying that he, as a noncustodial parent under California divorce law,  lacked standing to bring the case on behalf of his daughter.  Fair enough, maybe he didn't.  He loses and we don't care.  We do care whether "under God" is unconstitutional or not.  We didn't get an answer to that question.  Newdow is reportedly trying again, however, using plaintiffs who do have standing.

As to the Ten Commandments, the Court said that the monument in Texas was constitutional because people were free to ignore it, and indeed, had been ignoring it or looking at it without apparent effect one way or the other for forty years. No one was getting excited over it, any more than the image of Moses in the Supreme Court room, or Hammurabi, another law-giver. 

Whatever the motives, the behavior on the ground had secularized the display, just like "In God We Trust" on the coins.  Everyone ignores the words; they're just there because you have to have something on the money so you know it's money and not slugs.  "God" has become denatured as a religious entity.  But if Congress tomorrow decided to replace God with a Christian Cross or Jewish Star of David, you could expect the fur to fly because this would represent the intrusion of a new mode of religious intrusion that hasn't had time to be ignored and denatured.

I'll make a deal with you:  I'll ignore yesterday's religious symbols that have been around for awhile and that I've learned to ignore if you'll agree not to impose any new ones on me. 

Is that a deal? 

Maybe that's what the two new Ten Commandment cases stand for.

But the framed-document display in Kentucky was different than the Texas monument case, because the government council in Kentucky had newly put up the Ten Commandments for fresh religious reasons that were too plain to ignore.  So down they must come.  The religious guys were pulling a fast one on the secular guys, and that's a no-no where government is supposed to be neutral.

We pay more attention to the principle of the case than the personal fortunes of the actual parties in most cases, unlike the TV dramas or usual fare of the "people" courts.  The Supreme Court is more like a "policy" court.  Of course these policies affect people daily, directly, and dramatically.  Rarely do the justices, it seems, refer directly to the effect on a particular party or person whose matter is before them.

Justice Harry Blackmun is a notable exception, remarking famously, "Poor Joshua," in reference to a child, Joshua De Shaney, who was beaten to death by his father after repeated beatings, where the Winnebago County social welfare authorities knew or should have known and failed to take action to protect their ward, Joshua.  The lawsuit against the authorities for negligent supervision failed as a matter of disputed policy.  De Shaney v. Winnebago County Department of Social Services (1987).

On the point of the government needing to remain neutral in serving as or hosting forums for the expression of controversial views, there is an interesting exercise in viewpoint neutrality in an expressive forum in the online, viewer-edited, encyclopedia called Wikipedia.  Wiki means fast in Hawaiian.  Wikipedia came to the fore in the July 7, 2005 terrorist bombing of the London Underground and double-decker bus, when bystanders began using cell-phone cameras and text-generators to post to Wikipedia, making corrections and additions in real time as events occurred.  There were three or four explosions as I recall.  Knowledgeable internet users were able to find out the news in this fastest way possible, people at the scene(s).

If you visit Wikipedia you will find articles describing controversial topics that are presented in a neutral way, such that opposing parties can agree that this, at least, is what we're arguing over.  Tom Friedman in his new book, "The World is Flat," comments on the phenomenon.  There is enough editing by readers and moderators that pranksters are kept at bay because their malicious handiwork doesn't last long enough to make a difference.  NPOV it's called, for Neutral Point of View.

We want our nation to adopt a NPOV such that you and I are allowed to sling contending words to our heart's content, without government telling either of us which of our moral beliefs is right.  Government provides the hall where you and I can talk each other to death if we want.

Some folks oppose this idea, thinking that government should side with their religion because, well, it's their religion, and what's the sense of having a religion if you know yours is right and the other guy's is wrong.  So government should side with you to make the world come out right, not wrong. 

Simple, right? 

Wrong. 

That's how you get the Thirty Years War in your own backyard.

Or Bosnia. 

Sarajevo. 

Baghdad.

The list goes on.

CON-LAW 101

This semester we’ve been studying individual rights, as opposed to structure of government.

If you were drawing up a constitution to establish a new government, you’d have to write about both of major topics: what kind of government you wanted, and what rights the individuals had who would be governed by this new government you were inventing.

One of the big things you’d have to decide was who was boss, you, meaning the individual, or the government. Then you’d need a mechanism for deciding who wins in case of a conflict between government and the individual, so you might invent a court system to go along with whatever else you devised.

Would you like to have a king?

How about a philosopher-king?

What about a committee instead of a king?

What about a president?

How about a parliament and a bunch of ministers, with a prime minister?

How about a theocracy where the leading cleric is boss?

There’s all sorts of ways you could devise.

In studying U.S. Con-law, we study the way our founding fathers did the job, and the changes made along the way, since 1787.  We added a Bill of Rights, in 1791.  We had a civil war that ended the institution of slavery in 1860.  In 1865 the 13th amendment, abolishing slavery, was added.  In 1868, the 14th promising equal protection of law, along with and due process of law and citizenship for all persons born in the United States was added (exception for diplomat’s kids subject to the laws of their home country); and in 1870, the 15th Amendment was added, promising the right to vote to the newly freed slaves, regardless of race, color, or previous condition of servitude.  The drafters didn’t want to pollute the Constitution with a word expressly admitting that we had slaves or slavery, so they used euphemisms like, “previous condition of servitude” to put a coating on it.  Amendments 13, 14, & 15 are called the Civil War Amendments.  They represent the North's effort to consolidate its gains after defeating the South. The Southern states were unrepresented until re-admitted to full participation in the governance of the Union.  So there was no Southern opposition to the passage of these amendments.  Originally intended to benefit the newly freed slaves, the 14th, especially, benefited everybody, regardless of race, creed, color, or previous condition of servitude.  It's equal protection and due process (liberty) clauses have proved fertile areas for the recognition or creation of new-seeming rights.  The reason for the equivocation is that many of the freedoms take for granted, such as the right to marry, seemingly existed without question, but had not been officially recognized legally because no challenge or claim had been brought.  Such issues arose later, of course, when the right to marry another person regardless of race or gender was asserted.

In the U.S. situation, since we started with thirteen state governments before we got around to breaking away from the mother country, England, with its dreaded king (George III) and corrupt Parliament, the new central government needed to be separate and distinct from the states.

It’s not hard to understand why the states arranged things as they did.  The states wanted to set up a central government that would be strong against the outside world, which was surrounding us, such as England, France, Indians, and Spain, but weak as against the thirteen states.

So what the founders did was to specify which individual powers would be granted to the central government and the states would keep the rest.  Article I, Section 8, Clauses 1-17 is the resulting shopping list of powers granted to the national government, plus Clause 18, which also gives the central government legislature (Congress) all other powers that are “necessary and proper” to carry out the first seventeen, plus any other power granted elsewhere, such as to the president, the court system, and in future amendments.

Since we started with thirteen original states and set up another government alongside them, we have a dual system of government.  Of course there have been many conflicts over who has what power and whether there is any overlap.  We call such issues “federalism” issues, because we are a group of thirteen government, originally, here, and another one over there, joined together into a federation, which mean an association of some sort.

But the founders, being careful to avoid setting up another monarchy like the one they’d just fought a long and bloody war to break away from (the American Revolution), decided that the other big thing they must do, aside from setting the dual system, above, was to cut up the new central government into three separate parts, so that no one of the three could so dominate the other two, and more importantly the thirteen states, and all the people living in those states. 

That’s why we have three separate branches of our federal government, who name is “The United States of America,” or Uncle Sam or the Feds, for short.

What happens if one of those three branches oversteps its bounds and finds itself, accidentally or on purpose, stepping on the toes of another branch by exercising some power assigned to this other branch and not to it?

This happens in cases where, for example, the legislature grants a power to the executive branch, headed by the President but administered through the various administrative agencies that we now have that didn’t exist at the founding, but reserves for itself a veto power to cancel acts it doesn’t like that the president’s branch has made?  That’s what Congress did in over 200 laws, until the Chadha case held that Congress cannot have its cake and eat it too.  Once it creates a power in another branch, Congress is not allowed to exercise a counter-power.  We call such issues “separation of powers” issues.

And we haven’t even started to talk about individual rights yet, have we?

Well, we will.  Now.

One of the things the founders of a new government that just rebelled from a monarchy in the name of liberty has to decide is how much liberty an individual will have.

Do you think that there are some liberties you have that government shouldn’t touch?

What would you call this?  Just “liberty?”

That’s what the founders did.  And they didn’t define the meaning of liberty.  They left it open-ended.

There, I just did something bad in Constitutional Law that I frequently remind students to try to avoid.

What do you think it is that I did that was poor?

I was being lazy minded.

I used a wild-card word instead of going to the trouble of saying exactly what I was talking about in so many words.  A wild-card word is a word like “it,” or “thing” that we use when we think we can get away with it because the person we’re addressing is probably smart enough to figure out what we think we’re talking about.

But that leads to communication errors, because you could be thinking of one thing and your listener another and pretty soon you are both beating around the bush because you were too lazy-minded to say exactly what you are taking about.

We tend to do that a lot in Constitutional law because often what we’re talking about is new doctrine that we’re defining for the first time, it seems, even though we’re using old ideas.  So there’s a tendency to refer to the new idea as “it,” this “thing” meaning idea or doctrine, that we both think we’re thinking and talking about but cannot be sure because we haven’t gone to the hard work of saying specifically what it is that we may be agreeing or disagreeing about.

Here’s an example of what I’m talking about.

There used to be laws of the various states in America that prohibited the sale of contraceptive devices by anyone to anyone.  It was a crime to sell condoms and diaphragms for birth control.  You might think this pretty ridiculous today, but that’s probably because you might not have been around when this (see, I did it again) was against the law.  It was even against the law to advise people about such devices.

So a Dr. Griswold and a woman who was the head of the Planned Parenthood organization in Connecticut in 1964 decided to challenge this law.  Why shouldn’t married people be able to obtain advice on how to regulate the size of their family and purchase the necessary supplies?  Did the state have he right to enter their bedroom to inspect what they did in bed together?  Was the state so all-powerful?  Or do people have the right to keep some things private even from government?

Well, you say, government is government.  Of course, if government thinks it needs to regulate people’s lives for the greater good of society, then government should have that right and power, right?  The greatest good for the greatest number?  You have to break some eggs to have an omelet?

Not so fast, said Dr. Griswold.  There are areas where I have the right to tell government to mind its own business, and this is one of them.  Government cannot tell me what to think, so why should government tell me how to have sex with my spouse?  What business is it of government?  My church may want to stick its nose into my private business, but that’s different.  I’m free, in this country, to quit my church, change churches, have no church, or to disregard its teachings if I feel like it.  I cannot be punished for not adhering to the teachings of a church or for criticizing the teachings of a church.  For we have a protection called the separation of church and state, unlike England, for example, where the two remain intertwined when it comes to the succession of the now powerless monarchy.

In the Griswold v. Connecticut (1964) case, the U.S. Supreme Court (hereafter, just the “Court,” with a capital ‘c’) held that privacy was such an important value to protect that government had no right to regulate the sexual relations of married people.

Well, that’s great, you say, but you expected that because that’s what you believe today, four decades after that decision.  But at the time a lot of people would’ve laughed at the idea that there were certain areas where government could not pass laws.  It wasn’t the bedroom that was sacrosanct.  Those who committed crimes in bedrooms, such as rape, murder, child abuse, and the sale or possession of drugs can be prosecuted today, despite Griswold or any other decision.

So what, exactly, does the Griswold decision protect?  How would you say this idea in words.  I almost said “it,” but I said “this idea,” instead.  Almost the same thing.  At least “this idea” communicates the idea that I want an idea, not just an “it.”  If you could answer this question, you would know the meaning of the case.  You would understand what the Griswold case holds.  Once you understand the holding, what the case held, you would have a useful principle of constitutional law that you could use elsewhere.  You need to do this, of course, because once Griswold declared unconstitutional all such laws, the case will never arise again.  But if there is a useful principle in Griswold, we want to know what it is so we can use it in other, arguably similar situations.

What would you say the principle of Griswold is?  That married people can now buy condoms and diaphragms in Connecticut, and Planned Parenthood clinics can dispense advise and supplies without fear of arrest and prosecution?  That’s what happened to Dr. Griswold and his colleague.  They were prosecuted and fined.  Not exactly the death penalty, but there was a point that needed to be made as a matter of law, wasn’t there.  Otherwise government would be all over us.

Who is government, anyway, these people who would be all over us?

Look at it this way for a moment.  How would you like your neighbors peeking into your bedroom windows to see what you do in bed with your partner?  You say you wouldn’t like that.  Why not?  Because it’s none of the neighbors’ business what I do with a consenting adult, assuming I’m not harming him or her.  I can tell the neighbors to buzz off, mind your own business.  I can have him arrested for trespassing or acting as a prowler or a Peeping-Tom perhaps.

Suppose your neighbor decides that it’s too risky, peeking into your window.  He’d rather send the police instead.  So he gets up a group of neighbors and they approach the City Council, or your Home Owner’s Association (HOA) and gets them to pass a law telling you what you can or cannot do in the privacy of your home with a consenting adult whom you are not harming in any way.  Now that the neighbors have exercised their peeping tom tendencies by sticking not their long noses into the privacy of your home, but the police, instead, acting through a law passed by your local government, are you still within your rights to say, “Buzz off.  Mind your own business.?”

Justice Anthony M. Kennedy of the current U.S. Supreme Court, is reported to have said that the Griswold case is the most important case, or one of the most important cases (I haven’t run down an accurate quote, yet, just a report) ever decided.

A case about using contraceptives is the most important of all? 

How could that be?

It would be if Griswold were about more than contraceptive use.

Griswold would be very important indeed if it created in you a right to tell government to buzz off and mind its own business, just as you would tell the neighbors if they stuck their noses into your business singly or cooperatively.

Until Griswold, you didn’t have that right, did you?  I don’t think you did as a general matter.

Griswold speaks in terms of privacy.

Privacy for whom?

How about unmarried people?  The case was brought by married people and decided only married people’s rights. 

What about single people who have sex?  Are they allowed to use contraception?  Do married people have greater sexual freedom than single people?  You think so?  Where did you get that idea from?  Your church or your political science textbook?  Outside of yourself and those most closely related to you, do you have any interest in who, across town, or across the country, or the world, is sleeping with whom?  And what they do together?  How long is your nose?

This privacy idea is an interesting idea if it means that government cannot intrude.

It is nice to think that government cannot intrude into your private thoughts and ideas and acts, isn’t it?  Isn’t that what the Fourth Amendment guarantee against unreasonable searches and seizures is all about?  Doesn’t it expressly state that people have a proper expectation and constitutional right to be secure in their “persons, houses, papers, and effects from unreasonable searches and seizures?”  Yes, that’s exactly what it says.  How about the Third Amendment’s protection against the quartering of troops in your house?  Isn’t that a privacy guaranty too?  Of course it is.   That’s what Griswold relied on, these other guarantees that pointed the way toward an even more fundamental principle: privacy in general, not just against troop-quartering, and papers.  Privacy means privacy in other areas, and privacy means no snooping by neighbors and government, especially by neighbors acting through government, as though the latter cures anything.  From the shadows and radiations of the 3rd and 4th Amendments, plus the 9th, that says the enumeration of some rights in the Constitution shall not be construed to deny or deprive the people of others, unlisted, that they retain.  And finally the 10th Amendment states that all rights not either given to the government or prohibited to it, “are retained by the people.”  That covers the ballpark, doesn’t it.

So from those four amendments, the Supreme Court, with Justice William O. Douglas writing the opinion, found a new right underlying these others.  It’s called privacy.  What we didn’t know was how far it extended and to whom.

But forty years represents a lot of Supreme Court decision-making, and now we can fill in the blanks, answer some more questions. Privacy has been extended to other areas.

The woman’s right to have an abortion, i.e. to control her own reproductive functions, as decided in Roe v. Wade (1973) has been established, subject to some allowable burdens, as long as they’re not “unduly” burdensome, satisfies the state’s right to protect late term fetuses, as long as the mother’s health is not at risk, in which case her interest in living prevails as against the fetus’s life.

The right to marry the person of your choice, regardless of race, creed, or color was guaranteed in Loving v. Virginia (1967), as a matter of equal protection, as opposed to privacy, but perhaps also a matter of privacy.

The right to live freely according to your gender or gender preference is now guaranteed in the new great liberty case, Lawrence v. Texas (2003), written by Justice Kennedy, not surprisingly, if he truly believes that Griswold is as important as he is reported to have said.  My guess is that he thinks it pretty important, because he relied on it considerably in Lawrence.

Equal Protection of Law

The other evening in class we were discussing the 14th Amendment’s guaranty of equal protection of law.  You recall Thomas Jefferson’s ringing statement in the Declaration of Independence,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are 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, [and that whenever a government stops behaving toward these ends and starts destroying them instead, guess what, it’s gone, because it’s our right to get rid of our government.  This part is not going to fly very well today, I'm afraid. The Declaration of Independence was written by revolutionaries, remember.]  We prefer the slower, less bloody, approach, today, of going to the Supreme Court or seeking to amend the Constitution.

Well, until the successful conclusion of the Civil War by the North, there was no equal protection of law in the United States.  Jefferson’s ringing assurance was a big fat lie.

Blacks were not free.  Blacks weren’t even treated as people.  Blacks were treated as creatures that you could beat and rent out.  I don’t like to use the word “they,” in this context.  It makes it appear as though you, if you’re not black, and I, are somehow distant, or different, from blacks.  That’s the former way.  Language conventions sometimes make it more difficult to eradicate the difference between “them” and “us,” despite that lack of any moral difference.

The 14th amendment tried to redeem Jefferson’s pledge.  It’s taken over a century and we’re still working at it.  Very little happens overnight in Con-Law.  The time scale extends into the scores of years, not just years, even centuries.  Why?  Because attitudes have to change before constitutions change.  Constitutions are frozen slices of political attitude.  Political attitude is comprised of moral and religious attitudes.  Change the foundations any you can then change the Constitution, not before.  That’s why the Supreme Court does not lead the country.  It follows a part of the country and hopes the stragglers catch up or die off.  Sometimes it miscalculates, as in Dred Scott and Roe v. Wade.  Dred Scott, upholding slavery and white supremacy in 1857, crystallized attitudes exactly opposite those that Chief Justice Roger B. Taney, a Southerner, hoped, and brought on the Civil War, sooner rather than later.

In Roe, it is doubtful that the justices realized they were starting a slow rolling civil war, political and shooting, over abortion.

So the Court is careful before striking into new territory.  See Washington v. Glucksberg, where the court declines the invitation to pronounce the existence of any new right to die with the assistance of others.  You’ll simply have to depart this veil in the old-fashioned way, hopefully after a decent Old-Fashioned, or at least a good scotch and soda, but not too many of course, and not before driving...

We’ve been talking about freedom, which seems to me to be another aspect of liberty.  Freedom and liberty for individuals from governmental power, this power to tell the government to buzz off and mind its own business, the freedom to be let alone, as Justice Brandeis put it in his dissent in Olmstead, an early case during the communications revolution, which held that governmental wiretapping, without a search warrant, to detect crime was not an unreasonable search under the 4th Amendment.

Our freedoms and liberties may all stem from, or be “routed through” the Constitution, but they aren’t all derived from, or routed through, the same clauses. The reasons may be historical, which adds little or nothing, or political, which may explain a lot.  For example, each article or amendment of the Bill of Rights protects a distinct aspect of freedom from governmental intrusion or overbearing, from free speech to freedom from the quartering of troops in your home, to the various criminal law and procedural provisions stemming from ex post facto (in the body of the Constitution) to protection against unreasonable search and seizure in the Fourth, protection against testimonial self-incrimination in the Fifth, to Right to Counsel in the Sixth.  Originally the Bill of Rights was understood to apply only to restrict the Federal government, not the states.  But the procedural due process clause of the 14th Amendment, which does apply to restrict the state (but not the federal government) provided the route by which to carry, perhaps ‘smuggle’ would be the better term, these guarantees through that amendment to make them apply against the states, as well.  This is called the incorporation doctrine, conventionally, but smuggling works for me.

When the Civil Rights Act of 1964 was enacted, pushed hard by President Lyndon Baines Johnson in reaction to the assassination of President John F. Kennedy on November 22, 1963, the constitutional challenge was decided not by the liberty guaranty of the 14th Amendment, but the Commerce Power granted to Congress by Article I, Sec. 8, Clause 3.   The cases are Heart of Atlanta Motel and Katzenbach v. McClung, aka Ollie’s Bar-B-Que.  Why the Commerce Clause for something as equal dignity for a huge portion of the population, and not the equal protection component of the due process clause announced in 1954 in Bolling v. Sharpe, the companion case to Brown v. Board?  The legal doctrine in the Commerce Clause was better developed and gave the Solicitor-General, whose job it was to argue in support of the Constitutionality of the new statute a better shot at the necessary five vote minimum required to win.  Pragmatism wins over what-might-be-nice-if-the-world-were-a-better-place every time.  It happens that the world isn’t such a nice place, and it’s your job to try to make it better.  Good luck.

We learned from reading the case of Plessy v. Ferguson (1896), that the Supreme Court, reflecting the common (white) assumptions of the time, attitudes that whites grew up believing, hence “knowing,” that as far as the races went, black vs. white vs. red vs. yellow, white was best.  Interesting that race is represented by color, isn’t it.  Nevertheless, this was the common belief at the time, and the Supreme Court is nothing if not an expositor of the common belief.  Weighing in on the side of white supremacy is the poet and writer Rudyard Kipling of England out of India, who wrote the poem The White Man’s Burden, subtitled “The United States and the Philippine Islands,” (1896).  It reflects the unashamed racism of the day, cheering the United States for stripping the Philippines from Spain (Admiral Dewey, Manila Bay, see the column with the statue atop in Union Square, San Francisco) which begins:

   

Take up the White Man’s burden –
    Send forth the best ye breed –
    Go bind your sons to exile
    To serve your captives’ need;
    To wait in heavy harness
    On fluttered folk and wild –
    Your new-caught sullen peoples,
    Half devil and half child.

It goes on in similar vein.  Britain at the time controlled three-quarters of the world, courtesy of its navy, of course, consisting of darker hued folks ruled by these pinkish beings out of London, called “white” to this day, remarkably, except for their hearts.

Kipling, the poet of Empire, also wrote, in 1889, The Ballad of East and West.  It begins:

   

Oh, East is East, and West is West, and never the twain shall meet,
    Till Earth and Sky stand presently at God’s great Judgment Seat;

The first line is what people remember to justify writing off the East when we think we’re the West.

Here’s the remaining two lines, first stanza:

 

  But there is neither East nor West, Border, nor Breed, nor Birth
    When two strong men stand face to face, though they come from
    the ends of the earth!

The rest of the poem concerns Kamal who stole the Colonel’s mare out the stable door in the land of Mohammed Khan, in the Khyber Pass, in or near Afghanistan. The colonel rides out to find his mare and confronts Kamal, who stands up to him and puts up a real fight.  Together they ride back together into the British encampment and the colonel orders the troops inside to sheath their swords, for the man beside him is a warrior to whom is due all respect. 

Kipling, for all his glorification of whites and empire, typically doffs his cap to the likes of Gunga Din, and the Fuzzy-Wuzzies who break a British Square, the fighting formation of the day, supposed to be unbreakable since Waterloo.  You do not achieve glory by beating an unworthy foe.  So your foe must be glorified even if you think you are so much better.  Thus you give him respect.

These sullen peoples, half devil and half child, from WMB, are the brown-skinned people of the Philippines, of course, although they may not have known it themselves. American soldiers, who departed the San Francisco Presidio from the Ft. Mason piers, upholding our tradition of de-humanizing the enemy, had their own lyrical description of the Filipinos, that begins:

    “Oh, the monkeys have no tails in Zamboanga...” 

The Filipinos were the enemy because they had the temerity to object to being taken over by us after being rescued from the Spaniards, who had ruled since shortly after Magellan, the Portuguese who sailed aboard Victoria for Spain, discovered the place for Europe.  He was eaten for his trouble on the Island of Mactan, near Cebu, for getting involved with Lapu Lapu in a local tribal war, which for all we know is probably still going on.  The voyage was completed by Magellan’s second officer Juan d’Elcano, giving Spain claim to the first complete circumnavigation of the world. The odd thing is that upon arrival, although they kept a daily log, the sailors were one day behind in the date.  You get a bonus point if you explain how this happened and what had to be done to correct it for the future.

Mark Twain, to his credit, America’s greatest writer (for Huckleberry Finn) and one of its most sensitive souls, opposed America’s adventure into foreign colonization and imperialism as being un-American. 

What business was it of ours to deprive others of their freedom, considering that we prized freedom for ourselves so greatly.  Apparently this difference between us and them had struck again, with inconvenient results.  We did, however, secure naval bases at Subic Bay and Clark Field that served to advantage when we invaded Vietnam. 

They did little good during World War Two, when Gen. Douglas MacArthur, whose father, Arthur, led those troops who sang of the tailless monkeys in Zamboanga, lined up all his B-25 bombers, with which we might have mounted a credible attack against Tokyo, on the airfield, allowing Japanese attack planes to wipe them all out in single strafing runs on Dec. 8th, which is really Dec. 7th, the same day as the attack on Pearl Harbor.  See the date problem aboard the Victoria, above.

The Philippines has reclaimed the bases and we negotiate for their use in case of future hostilities in the Far East, as we call the Far West.  Well, which is it?  It depends on your starting point, I suppose.  I’m in San Francisco, so I look west.  London looks east.  A wash. But London is bigger and got there ahead of me.

Plessy v. Ferguson (1896) had the unfortunate effect of legalizing a system of enforced black-white racial segregation, called Jim Crow, that entrenched and helped perpetuate the widespread belief that one race was superior, and another inferior, to the other for the next 58 years, legally, over the ringing dissent of Justice John Marshall Harlan, who observed that his constitution was, or ought to be, color-blind.  Remarkable, considering that his Kentucky family, and he, owned slaves.  His Northern wife, incidentally, kept a diary, which, when Justice Ruth Bader Ginsburg read it, felt ought to be made into a book.  It’s an interesting story of people who own and live with slaves trying to put the best on something that deep inside they realize is a terrible wrong but can do little about.  Harlan at least tried.  He wrote what is probably the greatest dissent in U.S. Con-law history.  It took 58 years to be reversed, and has taken another half century to take effect on the ground, or in the schools.

Brown v. Board (1954), which despite the difficulty in realizing its promise, Vernon Jordan calls the greatest decision of his lifetime, because it recognized officially the inherent dignity of a huge population of people in America who had been stepped on, big-time, for a long time.  Much of America has had a hard time dealing with this, regrettably.

Brown teaches that when government makes laws based on classifications according to race, the Court will strictly scrutinize such categorizing to see what’s really going on.  The court says it will refuse to allow discriminating against people on account of their alleged race, however that is determined, unless...there’s always an unless in Con-Law...there’s an over-riding reason for the government to discriminate.

Such as imprisoning without trial (“interning”)  the AJAs on the West Coast after Pearl Harbor in concentration camps called Tule Lake and the like.

In 1954, and not out of the blue, came Brown v. Board of Education of Topeka, Kansas, and four companion cases out of state courts, plus another, Bolling v. Sharpe, out of Washington, D.C.

Both held that racial segregation in public education violated the equal protection clause of the 14th Amendment.  Well, hallelelujah.  Integration arrived on paper. Busing followed.   

The principle was established.  Now the rule is that classifications based on race are suspect and subject to heightened scrutiny.

Great.  But what if government wants to atone for its sins and make up lost ground for American blacks who were deprived of legal, economic, social, and political rights for 300 years on this continent?  Could government use race in an allegedly benign or affirmative sense to make up for past wrongs?

Where would that play out?  In jobs, public contracting, admission to college and professional schools, such as law, engineering, business, science, architecture, and medicine?

The first case to reach the Supreme Court was Croson v. City of Richmond.  The Richmond City Council enacted an ordinance that required, in order to be granted a city construction contract, that 30% of the work be subcontracted to minority subcontractors.  That sounds nice, doesn’t it?  Even the score a bit on the racial front?

Not so fast said the Supreme Court.  Richmond hasn’t shown that it discriminated in the past against black contractors, and hasn’t shown there were any black contractors who wanted the work of replacing jail toilets.  We’re applying strict scrutiny to smoke out racial politics and gamesmanship.  The Constitution was going to be color-blind even if the rest of society wasn’t.

Terrific.  Racial equality at last.  Of course, if you were black, you might be excused for wondering how it was that the Court was suddenly so sensitive to racial slights when whites were losing good money on contracts, but was so insensitive when blacks were being shoved to the back of the bus.  No, said the Court, you need to show you’ve discriminated as a government before you can go around curing the problem, and Richmond was unable to show it discriminated against black plumbers, although, as Justice Thurgood Marshall observed, Richmond had been the capitol of the Confederacy and certainly participated in its share of discrimination, starting, perhaps, with the slave auctions on the steps of City Hall.

The highway guardrail case, Adarand Constructors, Inc., v. Pena, upheld the same rule for the Feds.  The Feds could not provide by law for set-asides, subsidies, or bonuses for minority contractors that would allow them to submit lower bids than white contractors without going bankrupt, because of the subsidy that allowed minorities to out-compete the whites.  Justice Scalia, dissenting, said we have only race here, American.  Shades of the first Justice Harlan.  The Constitution really is color-blind when it comes to reverse discrimination against whites.

Great.  Another blow for equal protection.  If A=B, then B=A.  There are no creditor races and no debtor races, said the court.  And what applies by way of equal protection to the states, applies to the feds.  They’re congruent, Equal Protection-wise, just like two or more matching triangles in elementary geometry.

Then, in class, we looked at the Bakke v. Regents of the U. of California (1978) case, which held that a little bit of racism was okay, but only if done in reverse, and only if it wasn’t quantified into a set system of points or numbers amounting to a quota system.  Quotas were no-no, but race was okay.  But how could race be okay to consider in hiring or university admissions if the net effect was to discriminate against another race?  Now you had winning and losing races all over again.  People would scramble to reclassify themselves based on some distant ancestor’s real or presumed race.  We’d be back in the game of racial politics all over again, the very thing we were trying to get away from.

Fast forward 25 years to Grutter and Gratz, both white, and each trying to enter the U. of Michigan.  Ms. Grutter wanted to get into the law school based on her good grades and LSAT scores, but minorities were given the slots she was competing for.   Reverse racism, she hollered, and sued, alleging a violation of equal protection of law as to her.  Relying on the Bakke decision, the Supreme Court in 2003 denied her claim.  It was okay for the law school to admit minorities ahead of her, and even use up all the slots so that she was barred, in the interests of racial diversity.  Diversity was the goal invented by Justice Lewis Powell in 1978 in Bakke.  He was the only justice, out of nine, to espouse this goal as constitutionally important.  Now, in Grutter, a bare majority of five embraced diversity as their lifesaver.  Reverse racism was good for another 25 years, proclaimed the deciding justice, Sandra Day O’Connor, although she wished it didn’t have to be this way.  What kind of constitutional law principle stinks so badly that the tipweight justice has to hold her nose and wish it away in another quarter century.  Real principles last forever.

This is one of those cases where an ounce of history is worth more than a pound of logic.  The majority felt it had to accede to some sort of reality, perhaps that represented by the “military brief,” in which distinguished military leaders weighed in with the claim that the armed services could not afford to recruit its officers in all-white universities and its troops from largely minority public high schools.  During the Vietnam war, relations between officers (white) and men (black, Hispanic) reached the point that communications had broken down and the men were fragging their hated officers with hand grenades.  That was no way to run an army.  The army needed black officers, so how about insuring that they get into college first, in case of an emergency.  Grutter. 

Grutter was barred from the law school, and the law school’s racially cognizant admission rules were upheld because they didn’t quantify race into any discernible quota.  Theoretically all students, white and black, or minority, received an individual evaluation as to qualifications with race being only one of many factors.  Since race was not discernible as the deciding criteria, even if it was, the scheme passed muster before the Court on Equal Protection grounds.

But not in the case of Gratz, who was barred because the undergraduate admissions scheme assigned 20 points bonus to any minority from anywhere.  Whitey lost.  This was too much for the Court.  It violated the principle of Bakke, which held that a little bit of racism was okay as long as it was blended into the mix, sort of they way a marbled vanilla fudge cake has streaks of chocolate swirling through.  Swirls of chocolate were tasty, but not layers of chocolate and vanilla.  That was too identifiable as racism positive and negative.

But what about strict scrutiny, why didn’t that apply here, in Grutter and Gratz, the way it was held to apply in Croson and Adarand?

Well, that’s that and this is this, that’s why.

Oh.

An ounce of history....

But look, in the U.S. v. VMI case, where the girl wanted to go to the all male Virginia Military Academy, Justice Ginsburg, speaking for the Court, held that intermediate scrutiny was the test, and not just any kind of intermediate scrutiny, but intermediate scrutiny to the “most exacting” standard.

How come, the dissenters to Grutter wanted to know (Scalia and Thomas), you applied intermediate scrutiny in VMI on a gender discrimination issue, but you’re not even applying that much scrutiny here in a race case?  You say you are “deferring” to the law school.  We don’t defer even to local, state, and federal governments when they classify, affirmatively or negatively, if there is such a difference, on the basis of race.  And yet, here, you want to defer to law schools when they discriminate?  What’s going on here?

Deference is the very opposite of strict scrutiny.  You defer when you don’t want to scrutinize because you’re afraid of what you might turn up, such as racial discrimination against one race, which ever one it is.  Remember that bit about no creditor and no debtor races?  Level playing field from now on?  A=B, and B=A?  Not for another 25 years.  As Justice Clarence Thomas points out, the majority has given law schools a 25-year license to violate the Constitution.

One may thus see that Con-law cases may be viewed along different axes.  You can relate it to the doctrine, such as equal protection or due process or commerce clause or, as below, war powers, but you can also view it according to the test used to decide:  low-level rational basis test (RBT), mid-level Intermediate Scrutiny, and the hardest of all to pass, Strict Scrutiny.  In fact it is wise to view the cases along both axes, and there may be more.  Sometimes we completely reinterpret cases as we realize they stand for more than was apparent at first, just as Justice Douglas did regarding four amendments that he, and the Court, said, stood for a greater, underlying, not completely apparent at first value or good:  privacy.  It took  along time before the Court was able to say that.  In Conlaw, the ideas don't always jump out at you right away.  They have to percolate a long time sometimes.  And even then they may seem ridiculous, right up to the point where they seem so important that we can no longer live in freedom without recognizing them as real and good.  Then the laughing stops and we proceed to further work with them.  Most new rights seem laughable to those not prepared to accept them, don't they. 

Can you think of any rights you enjoy and take for granted today which must've seemed like bad jokes when first proposed? 

Racial equality perhaps? 

Gender equality? 

Religious equality? 

This is what Con-law is all about. 

Con-law is the place where yesterday's jokes become today's laws because they really weren't all that funny, were they. 

Many a true word is said in jest.

We just hadn't thought about it sufficiently.

And that’s what we talked about in the last class before going to another suspect classification, alien status.

Suppose that a state decides it doesn’t want to pay welfare benefits to needy aliens.  An alien is the archaic (and current) word for a person in the U.S. who is not a citizen yet or ever.  The alien may be legal or illegal, but that’s another distinction that we’ll come to later.  See Plyler v. Doe.

The Supreme Court held that states could not legally discriminate against providing the same support for (legal) aliens as it did for citizens for two reasons: the state withheld payroll taxes from aliens just as for citizens, but even more importantly, it was up to the federal government to control and regulate the admission of aliens into the U.S. as a matter of Article I, Sec. 8, and the federal power to regulate foreign affairs.  We wouldn’t want to get into a war with Mexico because California, say, decided to discriminate against citizens of Mexico.

How about if Texas, say wanted to prohibit Mexican citizens (aliens) living in Texas from serving as notaries, people who are licensed to witness signatures on important papers such as loans, deeds, and immigration applications?  Could Texas so discriminate?  No, said the Court, because a notary was such a low level of government function that it made no difference to a state if the person witnessing the signature was an alien.  Different however, for cops and judges, because these functionaries really did exercise the discretionary power of the state.  This is the governmental function exception to equal protection of law for aliens.

Suppose that the federal government wanted to provide fewer benefits to aliens than citizens, could it do that?  Yes, said the court, on the theory that it regulates foreign affairs, so if it wants to prefer certain foreigners to others, it can.  Thus we barred nationals of communist nations from immigrating, but allowed Cubans to immigrate, because they were fleeing communism.

Well, I asked the student who was briefing the Texas notary case and standing at the head of the class near me whether she thought the result would be the same if the federal government discriminated against aliens the way state governments could not.

That was a poser and she was stumped for a moment, but not entirely.  Her obligation was to prepare for class, which meant studying not only the case she was to present but also to read the other cases likely to be reached that evening.  The whole point of studying both state and federal cases on the question of classifying aliens was to illustrate that there was a difference in approach allowed to the feds that was not allowed to the states, as a matter of national powers to regulate foreign nationals and relate to foreign countries.  That’s what I needed to hear from the student.

The answer she provided was: “Congress?” with a question mark at the end.

“I’ve asked you for a reason and you’ve given me a word or a label that I don’t know what to do with,” I replied.  “What are you driving at?”

“That Congress can do some things that states can’t?” she asked, or stated. 

“You’re onto something, so I think you’re getting close,” I hinted, and explained the above.

This illustrates a difficulty that law students in particular have in learning, or studying Con-law.  Absorbing the material doesn’t come easy from just reading the cases, even though the cases generally explain what they are doing and why.  But it takes so many pages of words for the Court to do this, to explain every single little detail of context and reasoning, that when a law student reads the decision, it is difficult to figure out what the new high points are.  If the case were written up newspaper style, with headlines, captions for big ideas, quotes from both sides, photos of demonstrators, illustrations and political cartoons such as appear in the editorial pages of newspapers, then the student would catch what the news was about each new case. 

But the Supreme Court doesn’t write like the daily newspaper. 

Example:  The recent "enemy combatant" case of Hamdi v. Rumsfeld  (2004) 124 S.Ct. 2663.

This is not just an "enemy combatant" case.  That tag tells you little, but it tells you something.  It's about detaining people who fight the United States.  Normally, people who fight the U.S. and are captured are POWs, as in WWII.  Or, they are criminals, prosecuted criminally for committing crimes, whether citizen or non-citizen.  But the War on Terror, we are told, is somehow different.  There is some other new, soon-to-be-invented middle third category called "enemy combatant," useful to hold indefinitely (until the last terrorist dies, i.e., forever) and without trial at the pleasure of the king...make that president.

Hamdi is really about executive detention.  It is an executive detention case.  And it has at least fourteen handles sticking out from it:

1. Hamdi was a U.S. Citizen (USC).  What difference does that make?
2. He was captured, allegedly on the battlefield.
3. In a foreign land, Afghanistan.
4. With a rifle in his hand, allegedly.
5. He was being detained, at first off-shore in Guantanamo, and then, when it turned out he had been born in the U.S. and was thus a USC (see Amendment 14) who had returned to his ancestral home, he was detained at the navy base brig (jail) in Charleston, South Carolina, i.e., in the U.S.
6. This is not just an initial temporary detention.  Authorities have made a actual decision to hold him "indefinitely," on the ground that he fits their definition of an "enemy combatant," which may be somehow different than a POW.
7. U.S. authorities are not treating him as a POW, entitled to certain rights including to receive mail and communicate out to someone. 
8. No legal visits by an attorney were allowed to Hamdi.
9. No charges have been filed in a criminal court.
10. No congressional act expressly authorizes the president to "detain" people who make war on the U.S.
11. Congress has acted to authorize the president to use force against such people, however.
12. Hamdi has not been told officially in writing why he is being detained forever.
13. He has not been given even the most rudimentary opportunity to protest that a mistake has been made, that he was not fighting against the U.S., for example, that he was an aid worker, reporter, or human rights observer who just happened to pick up a rifle, perhaps to remove it from combat.  Even if you think these far fetched, having in mind WWII battlefield scenes you saw in movies, the War on Terrorism is said to be different, and you may have a different scene with other types of players involved in what the U.S. calls a battlefield.  Indeed, the whole world, to the U.S. is now a battlefield.  That's why they look you over so carefully at airports.  Airplanes are one of the terrorists' most potent weapons.  Is everyone at an airport an enemy combatant?  Whom we can hold indefinitely?
14. Hamdi was not brought before any neutral person having authority to hear his claim, such as a military tribunal if one he had, and to tell the government it had made a mistake, either release Hamdi or charge him with a crime or hold him as a POW, giving him the POWs rights under the Geneva Conventions, enacted to prevent abuses of prisoners after WWI.  What good would a military tribunal do?  As one top general said, we seem to have a lot more goat-herders who had guns (everyone in Afghanistan carries a weapon in that lawless land) than real terrorists.  Was Hamdi a goat-herd or a terrorist.  We may never know, because in order to avert a hearing, after the Supreme Court ruled he was entitled to at least minimal procedural due process, the U.S. made a deal to send him to Saudi Arabia, which nation will keep watch over him.

If  you were presenting this case to a law class, which points would you stress? 

It would be hard to discuss this case intelligently without bringing up all of them, which is why I listed and numbered them.  And I haven't even gone into prior law that sheds light and gives direction concerning the underlying values at stake.

How much in Hamdi depends on his being a USC? 

Isn't this case really a test of the power of the president to protect the country?

Does the Court say that the president is in any way limited in his power to protect the country?  No!

Does the Court say that the president may not detain indefinitely enemy combatants, citizen or not?  No!

All the Court says and does is to order that the man be given, before being held forever, two things:  the right to be seen and represented by a lawyer, and a fair hearing in which the authorities notify him why he's being held and he gets his day before a fair and neutral arbiter to say, "That's wrong, and here's why." 

Why is it significant that Hamdi is an American citizen?  Because if the president can order his detention indefinitely without counsel or a fair hearing, just by slapping a label on him of "enemy combatant," the president can do that to any American citizen including you and any Supreme Court justice who rules against him.  Suddenly we have a totalitarian dictatorship lacking any semblance of law.  The rule of law is gone, and we're dependent on the mental health and good judgment and good will of a person who lives in a pressure cooker.  Shades of Henry VIII and his daughter Elizabeth I, and a string of successors from whom we eventually rebelled.

Which would you rather take your chances on, a regime that provides for a hearing, or a regime that places all on the will of one person who may be nuts?

That's why Hamdi is important.  It makes that choice as a matter of the highest degree of law, Constitutional law. The Court made that choice for us.  And in doing so, it solidified your liberty without sacrificing the president's power to act to protect one whit.

So it’s up to the professor to highlight in discussion the legally significant parts in case a student leaves out something important. 

The Socratic Method Q&A between student and professor is supposed to make the point public for the rest of the class as the student and professor go through a guided discussion, which can only happen because the professor has become familiar with the material from having spent more time over the years watching it develop and recur, discussing it with other professors, clipping newspaper articles, editorials, and cartoons, and the like, to keep the material more or less fresh.

Students have the additional problem of focusing on each case one at a time when in reality each case is better understood as a data point on a continuum of developing doctrine subject to a tug of war between contending attitudes over whether it should be extended at all, or even exist, and if extended, how far and in which direction.  This is difficult to understand when you are busy trying to understand what this data point means.  Connecting the dots requires an additional effort that students tend to put off in favor of just trying to understand the case at hand.  So again, the professor’s job is to try to string the relevant cases together to tell a longer story than just the point of one case.  Even though the cases on a point arise twenty or fifty years apart, they’re beads on a string when looked at in comparison with each other and you see the trend.

Would you like an easy way of checking on what is important about a case and what is not, as a law student?

Here's the clue.  The answer has been provided you already by the experienced and distinguished constitutional law professors who compiled your casebook.  They've put the case in a section that is part of a longer string of sections, outline fashion.  If you will frequently consult the outline of your casebook, you will see that there is a more-or-less natural progression from one topic to another.  So when it comes your turn to brief a case, you might be wise to include as the basis for your introduction that this case concerns whatever subject the casebook authors have suggested.  It took them a lot of work, experience, and skill, to figure out where this case fits in, what it's really about, and how to describe it with sufficient precision, or particularity, that we don't get it confused with some similar appearing case that is completely off point.

We also have an inexhaustible treasure chest of graphic images with which to illustrate and adorn our doctrines.  As soon as we come up with a new legal doctrine or reason of importance, we make up a new image to fix it in our minds.

If the court refers to an overbroad classification, it says the statute needed to be more narrowly tailored.  Otherwise the coat is too big to fit the person it was designed for.

If a statute sweeps too broadly, the obvious metaphor is a broom that sweeps too widely.  Anyone who has ever seen a broom knows that you use a narrow broom to sweep out a narrow aisle and a broad broom to sweep out the gym. Use the wrong broom in the wrong place and what happens?  The too-narrow broom leaves a lot of unswept leftovers, while the too-wide broom sweeps up the good along with the bad.  We don’t generally mind if a legislature determines to attack only a part of a social or economic problem, or any problem for that matter, but we do mind it more where the legislature throws out the baby with the bath-water, to use yet another metaphor. 

Without the metaphors you are left with trying to remember abstractions of words, which is a lot harder to do and is not the way we generally think about anything, much less when communicating law.  Metaphors are our verbal shorthand, used by the Court as well as counsel.  The more apt the metaphor, the better understood is the concept.  This is why Jesus spoke with some effectiveness using parables, little stories that have memorably illustrated his points for the past 2000 years or so.  The better the lawyer, the simpler the story.  It takes a long time to write short.  If you write too long, the point is lost in the words and the difficulty of sustaining attention.  If you write too short, the point may become too abstract to stick in mind for any length of time.

Which is why I’m quitting here for now.