Sheridan: Con-Law

CONLAW AND AIRLINE PASSENGERS BILL OF RIGHTS

You board a plane at your local airport and it taxis out to the runway, where it is told by ground control to wait.  Nine hours later, you're still waiting.  The on-board toilets are overflowing.  Babies are crying.  The air hostesses are out of food and fresh water.  You want off.  You're stuck.

Passengers complain.  Your state legislators decide, "We must do something about this."

They pass a bill, signed by the governor, captioned "Airline Passengers Bill of Rights." 

Thank goodness, you think, that's the last time this happens, I'm safe.  I may even try flying again.

Not so fast.

What makes you think that a local legislature has been given the power to regulate air transport.  Isn't this an instrumentality or channel of interstate commerce, the power to regulate of which is given to Congress under Art. I, Sec. 8, Clause 3 of the U.S. Constitution?

It is.

Local legislature, city, county, and state, have no power to regulate in areas delegated by the states to Congress.  So the local regulation fails.  It's unconstitutional.  Just as cops don't have the power to grant divorces, or the divorce court to order the hanging of people convicted of crimes, state legislatures don't have the power to regulate the channels or instrumentalities of interstate commerce.  There is a middle ground, where Congress has failed to legislate but there are local interests of compelling importance to justify local (state) regulation, which permits the states to legislate.  The case is Cooley vs. the Philadelphia Board of Wardens vs. X, the harbor pilot case, in which port authorities were recognized as having the power under the Constitution to regulate to protect local interests, provided that they do not unduly burden interstate commerce.

The theory is that the United States is a common market, such as Europe eventually managed to create following World War Two.  Today the European Union is an economic entity modeled after the U.S., in which individual states (nations) are no longer empowered to erect trade and employment barriers preventing the free flow of goods, crops, services, and labor throughout the community of nation-states.

The article below shows how this works in the case of airline passenger alleged local rights.  They don't have any.

Seems as though they should, don't you agree?

Write to your congressperson.

UNWRITTEN LAW

Years ago, as a law student, I can recall becoming upset with a friend, not a law student, who insisted on the existence of something she called "an unwritten law."  Since I'd been immersed in studying a surplus of written law, I didn't feel that there was any such thing as unwritten law (as I hadn't read it, of course, and what I couldn't read didn't exist as far as I was concerned) and hotly disputed the notion. 

Boy, was I wrong.

Recent events suggest that we have an unwritten precept which is of constitutional dimension in the sense that constitutional law describes how individuals and groups of people behave, or feel compelled to behave, in actuality, whether they are operating from a statute book, the case-law, or from a constitution, whether written or not.

A high public official felt himself forced to resign from his elected office this week, I think on the theory (others might describe it differently, more closely, or more accurately, or simply disagree) that his moral lapse(s) tore the fabric of support for his leadership that he had enjoyed from the public and other elected officials who could normally be counted on to support him through ordinary political controversies.  This before impeachment or indictment, although these may have been reasonably feared.

In describing our society and its fundamental law, I think it fair to say that in addition to the Constitution, there remain unwritten attitudes of such force that they must be deemed constitutional in dimension, such as this law of basic morality, which perhaps needs further defining than by example.

I can think of another example that illustrates the point that there have been unwritten "codes" of behavior that exist outside the lawbooks.

The idea is that some people would take the law into their own hands, to string up, that is, hang, a person presumed to be guilty of some heinous offense.  Thus lynching seems to be an act that describes and defines how a society actually functions at least some of the time. 

The examples would include the terrible race lynchings of the former South and the San Jose, CA incident of the mid-1930s when townsmen, and some university students it is said, stormed the jail and tortured and hanged the culprits suspected of committing the kidnaping and murder of the son of a local merchant.  Public authorities, although aware of the goings on, seemed powerless to protect against this.

It would not seem amiss to me, in describing what constitutional law is, to include a reference to the notion that in addition to whatever the constitutional text may say, it should be understood that it does not, and never did, lay out all of the precepts on which this society was established.

In this regard, I submit that one of the cleverest inclusions in Madison's Bill of Rights is Amendment 9, which guarantees rights that while unenumerated in the Constitution, are retained by the people, for it reminds us to be on the alert for what these are, or may be.

Perhaps the sense of morality which made it impossible for the NY governor to continue to hold office is one of these rights retained by the people.

The other example of unwritten law described above would be based, I suppose, not on a claim of right, but the exercise of an unlawful power, in the sense that Prof. Hohfeld made various useful distinctions.

I wonder whether anyone else here was struck by the notion that some basic principle or understanding was at work, and seems to have triumphed, during this latest Greek tragedy of a scandal.  Or am I reading too much into it?

Perhaps the principle is too difficult to enunciate accurately outside of the confines of a drama by the likes of Euripides.

Or perhaps it is so simple as to be lost sight of by the protagonist...

***

The above, a contribution to the Conlawprofs with whom I am privileged to exchange views.

***

The Mandate of Heaven

In China, it is said, an emperor serves while he enjoys the "mandate of heaven," i.e. while the gods continue to smile upon him.  Especially after an emperor has become unpopular, natural calamities such as earthquake, typhoon, drought, flooding, famine, and the like are considered as evidence that the gods are no longer smiling on the leader, that he has lost the mandate of heaven, and must vacate his throne.  This is the excuse, at least, for the rebellion that topples the emperor, or the justification, depending on your point of view.

The governor of NY seems to have lost the mandate of heaven, heaven, in his case, being the goodwill of the electorate.

***

The post to the Conlawprofs drew the following exchange:

On Mar 14, 2008, at 3:21 PM, Linda T. wrote:

Dear Prof Sheridan,

I think the important point in the Spitzer scandal is that he didn't
just break a moral code.  He broke the law - a written law on the
books.  And he could make no argument that the behavior he engaged in
shouldn't be criminal in the first place (as some do) because he had
prosecuted just such crimes as NY's AG.  I don't think his supporters
failed to rush to his aid because his behavior was immoral.  It's
because it was illegal.  The "unwritten" law in this case would be,
then, that public officials should not be above the law.

Best,
Linda T.
Ph.D. Candidate in United States History
Columbia University
New York, NY

***

I appreciate the most thoughtful reply.

I don't dispute that the former governor may have broken any number of written laws, and I'm not condoning any breach.  But I'm not sure that's why he resigned.  He may have anticipated their coming to light, or worse.

His stated misconduct, however, has been magnified in the public imagination by the lens between him and them of morality, unless I'm completely misreading the situation.

There's a reason that so much in the way of sex is publicly purveyed in this country:  there's a huge market among the public and, surprise, its representatives.  Yet we don't insist that all who purchase must lose their livelihood.  But for top officials, we do.  The media is having a field day out of this very impulse: we like to read about sexual matters, from Hollywood to Albany, and to Washington, especially.  It stimulates the film-show playing inside our heads, I believe.

I see an attempt to justify the public execution of the offender in the publication of articles observing that so many young women come from broken homes, were abused, on drugs, etc.  The laws otherwise carelessly enforced, or not enforced, or to which a blind eye is turned, are suddenly to be enforced with a vengeance because the culprit is a high elected official (charged with enforcing those very laws, which makes my point about morality/hypocrisy being the true gist of his offense, hence the cause of his need to vacate office).

I don't think he left because he felt he violated a law; in fact he called his behavior a private matter.  The public aspect of the private matter was that the contrast with the moral positions which had elected him were in such contrast with how he was seen to behave when no one, it was supposed, was looking.

Prosecutors (anonymous) were quoted in today's NYT as saying that their decision-making would likely be influenced by whether the subject of their actions were a public official or a private person.  On what theory is the public official treated more harshly than a private individual?

I once witnessed a peace officer sentenced to a term of imprisonment for mistreating a prisoner.  The prosecutor argued for a longer term, on the ground that the defendant was a police officer and needed to be held to a higher standard.  The judge, in imposing a more moderate sentence, observed that he was not going to hold the individual to a higher standard than a private individual despite the given legal violation and the man's status as an officer.

Why did the governor leave?

Call it the hypocrisy of it all, or call it the existence of a more general sense of morality.   I doubt it was that we feel it so wrong to purchase an anonymous service generally purveyed on the open market, for good or ill.  Incidentally, the post-fact revelations as to the background of the young lady are relevant to what?  That we need such laws?  I grant that.  There's a report that she stands to reap a million dollars for her story.  Does her betterment as a result of the encounter let the former governor off the hook?  How will the prosecution case (on a prostitution theory) look to a jury if that reported circumstance materializes?

It gets curioser and curioser...

rs
sfls


Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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MORALITY, THE UNWRITTEN CONSTITUTIONAL LAW

The governor of New York State, Elliott Spitzer, resigned today over revelations that he had patronized a high-priced call-girl ring, or as David Letterman put it last evening, got caught "banging whores."

I was glad to see prominent attorney David Boies observe that the former governor's conduct seems to have been more complex than that, more on the order of an addiction that needed treatment more than punishment.

Spitzer certainly made it impossible for him to govern in the sense of providing credible moral leadership.  His GOP opponents were promising to impeach him for having committed along the way various legal violations such as structuring money transactions to conceal their true purpose, engaging in acts of prostitution, and lord knows what other relatively beside the point misdemeanors in the broad sense.

The interesting question to me, apart from the Ancient Greek Tragedy pattern of exploding hubris, arrogance going before a fall, and the like, is whether we can read a Conlaw element into all this.  I think we can.

Conlaw, after all, is the description of the legal effect of behavior on the way a nation, any nation, functions.

It seems to me that we have an unwritten notion underlying all of our constitutional provisions concerning qualification to hold public office, as though it had been truly written that in addition to all of the other legal requisites, the office-holder may keep his office only so long as it does not appear that he has violated fundamental tenets of morality in his place and time.

We've seen sex scandals before.  Pres. Clinton is Ex. A.  Spitzer is Ex. B.  Clinton was impeached, but was not forced to resign.  He weathered out the storm.  Spitzer lost his backing.  His own party would have been forced to defend him or let him go over the side.  They chose not to defend and over he went, on the third day after the news broke.  Apparently his potential defenders realized that they had no defense worth flogging.

He can now work on his issues and craft a productive life for himself as Michael Milken appears to have done after his scandal back in the '90s, doing charitable work.  Neither is without resources.

So, what was the gist of Spitzer's offense?

He engaged in an illegal contract?  He did, paying a prostitute out of private funds.  But is that why he walked the plank?

He is married?  Isn't his conduct a private matter between the couple?

He has daughters?  I don't think this is the gravamen of the offense, although it doesn't help.

He patronized one or more prostitutes?  They were prostitutes before he showed up.  They made a lot of dough.  They weren't serfs or slaves.  They were entertainers, entrepreneurs and sex workers, to use some of the modern jargon.

Was it the ancillary offenses such as smurfing (structuring to hide) payments?  No, this is window dressing.

The real offense is that we have this unwritten rule that prominent public officials are entitled to hold their offices only for so long as they behave in an admirable fashion, or at least a tolerable fashion.  They cannot pose as one thing and then be seen as something lesser.  This is Spitzer's offense.  He committed the public offense of being revealed as more of a hypocrite than the public, and his supporters, could tolerate.

It's not as though we expect people to behave as saints.  But we do place our leaders on a pedestal for all to admire and emulate.  When they show that they are no better than the rest of us sinners, they can no longer be sanctified by public office.  We can't have people thinking as they deal with an alleged saint that we all really know he's a sinner.  So he must go.  He's gone.

That must be closer to the theory that a public official is gone because he made a faux pas or a series of same.

He violated the unwritten constitutional dictum of  "Thou shalt not pose as a saint if you in fact are a sinner."

My guess is that Boies is right, Spitzer probably had no more control over his behavior than the average cigarette smoker, alcoholic, or drug addict, only here the addiction was sex, not substance.

Would I hold this against Spitzer?  Not after he cleaned up his act.  He has taken responsibility for his actions in a most public way, resigning in disgrace in front of his family and the world.  The demands of the moral drama have been played out.  He has been purged of his hypocrisy in the sense that he may no longer profit from it by standing atop the pedestal of admiration of clean-living.  Now he'll work on his issues and his society will be  happy to welcome him back, except, perhaps for those he has severely disappointed along the way.  But the rest will be happy to deal with him, although they may no long wish to see him acting politically.  He can do business, earn a living, go to meetings, lead a philanthropic venture, do his penance, if that is what you'd like to call it, in order to be redeemed, to buy back his position of respect.

How is it that a fallen sinner can do this?

It's because we have so much experience with those who trip themselves up that we sort of expect it.  We don't really want to see a life wasted forever over a mistake.  So we recognize means of getting past our slip-ups in many case, certainly not all.

Rehab, some call it.

It's how we make amends and get on with life, where possible.

This process of making-whole could not have occurred had Spitzer not resigned his high office.  Had he remained, the Lettermans and Lenos of the world, meaning the man-in-the-street, would never have let up, as the dramatic tension would not have let it.  But by publicly admitting his misconduct, taking responsibility for his breach of the morality expected by his public, apologizing to one and all, and by promising to attend to the underlying issues that drove him off the pedestal, Spitzer purged himself of a considerable amount of the taint, I expect.  This takes the wind out of the sails of his critics.  Those who criticize or condemn him further, after he has undertaken to do all that can reasonably be expected, risk being themselves criticized for being arrogant and unfeeling, the very things people thought badly marked Spitzer, the former N.Y. Attorney-General, as prosecutor.

Some of the biggest cheerleaders of Spitzer's downfall are the Wall Street types who bridled most at his "new Sheriff of Wall Street" image, his effort to clean up their business behavior, which I hope is as clean as they want their governor to be.

CONLAW, DIFFICULT?

An intelligent fellow I'd met at the gym said after we'd been talking awhile that he'd heard that Conlaw was reputed to be the most difficult of legal subjects and asked whether I thought that was true.

I'm not sure this is true and don't know where it got this reputation, but there may be an element of truth to it depending on one's position in dealing with the subject.

There isn't a subject in Conlaw that can't be explained to an intelligent ten-year-old.  In fact, if you can't explain what you want to talk about to a ten-year-old, you probably don't understand it well yourself.

Taken as a whole, the way the year-long course is taught in law school, Conlaw may very well seem daunting to a law student, mainly because the book is so thick and covers so much material in what proves to be too short a time.

Justice Byron White observed in regard to new justices of the Supreme Court that it takes five years to go around the track once.

My first year of teaching was a full time job, even though I only taught for three hours one evening a week, as one had to read a lot of cases, digest them, and prepare to explain them when the students presented their versions.  The second year was the same as I reviewed the material I'd digested the year before.  The third year I felt I cooked, meaning I was comfortable with the material, could explain it confidently, even creatively, and make sense of it well.  This is the year that the students awarded the "Professor of the Year" award to yours truly, for which I've been sincerely thankful.  The following two summers I taught First Amendment law and something the school billed as Advanced Conlaw which turned out to be a review of the basic essentials.  That required a fair degree of effort to identify what constituted basic essentials.

Conlaw is a heavy steamer trunk.  It's our theory of everything in the world of power, law, government, politics, morality, tradition, change, etc.  But Conlaw is not everything, in itself.  It is a subset of a more general set of views, attitudes concerning how the world, our world, should run in relation to the rest of the world.  We may see how other countries approach the subject of, for example, gay rights.  The supreme court cited a case from South Africa in Lawrence v. Texas (2004), to howls from conservatives who thought the Court was abdicating sovereignty to the lesser people of the world.  Some conservatives, and some Americans in general, seem to think that we're always the best, always right, with nothing to learn from anyone else.  See the earlier post on arrogance.

Before the U.S. Constitution (drafted in Philadelphia in 1781, ratified and put into force in 1789, Bill of Rights added by amendment in 1791 as part of a deal to complete the document by adding individual rights at first against the newly formed central or federal government and later incorporated via the later adopted, post-civil war 14th amendment -- equal protection, due process of law --  to apply against the power of the individual states) there was, at first, British Common Law.  There was also something called "natural law," a combination of principles from the Bible, Old Testament and New, and other principles draw from presumed Nature, such as the "law" of self-preservation, the right to keep what one earned or acquired by the sweat of one's brow, ideas of freedom for free men, but not slaves or serfs, etc.  The Renaissance and Reformation were recognized chapters in the development of European man, from whom our Framers descended.  So the U.S. Constitution was not written on a blank slate.  It was a product of its time and its people.

Is Conlaw difficult?  Not if you've taken the trouble to understand these various contexts to some reasonable extent.

All of this takes time and good guides, plus a lot of going over the same, or similar material, in order to re-evaluate what you think you know in light of what the next guide is teaching.

Then this must be viewed in comparison with what our Framers wrought and what our Supreme Court, and other amenders of our basic document, have done to modify, expand, or otherwise change our basic relationships with our nation and one another.  The Constitution, after all, sets forth the blueprint for a functioning government and the relations of the people who live under its umbrella to it and to each other.  This can be complicated, as our history among the various races and ethnic groups and religions continually attest.

Since the Constitution mandates fairness, and we don't always want to treat others as fairly as they wish, see the race issue, gay people, etc., the attitude of the dominant group at a particular time seems to be, when fairness is demanded by a member of a minority group, "Who's going to make us?"

This is the hard part, because old law doesn't always fit new demands.  It has to be stretched to cover, such as the effort to eliminate slavery (the stretching part required a very bloody civil war, over 600,000 dead, and battles that in one day killed more Americans than we've lost so far in Iraq and Afghanistan combined.), Jim Crow, and gender and sexual orientation disparities.

The abolitionists in the 1830s knew full well that holding one person, whole families, in a state of slavery at the point of a gun and the lash of a whip was a violation of the Christian morality they revered.  Yet they could make little headway in getting the system changed.  When the South seceded from the union upon receiving the news of the election of Lincoln, an avowed anti-slavery man, although he said he would have tolerated the existence of slavery to keep the union intact, the war was begun to keep the union intact.  A by-product of this war was the freeing of the slaves as a war measure.  Lincoln didn't free the slaves in the territory he controlled, the northern states, but in the South, which he decidedly did not control, as those eleven states were fighting him.  He did this to keep four border states, essential to the success of the North, fighting for the union, despite the fact that they were slave states as well.  Lincoln compromised on a principle that seems amazing today, unless you know the full story, the context.

Is this difficult to understand?  It is constitutional law, American version.

Any association of people identifiable as a group is constituted in a way that allows us to see it as a group.  A group of survivors on a raft from a sunken ship is constituted in some way capable of being described by anyone who can write who has access to the facts.  What kind of ship sank?  What nationality?  Civilian or military?  Up on a rock or torpedoed?  Who, if anyone, provides leadership to these people on a raft?  Elected or designated previously because one is a ranking officer.  How is the food and water allocated?  The work of rowing or sailing?  Who provides directions?  The description of circumstances becomes a description of how the group is constituted.

Does a constitution have to be written?

Of course not, no more than a group on a raft has a written constitution.  A constitution is a description of what in fact is.  It may set forth the hope of survival, the reaching of a desired destination, or an unattainable set of goals towards which to work, but that is of little matter, that we may not be capable of ever reaching a receding goal.  It's nice to know what the goal is, and a constitution is our place for setting it forth.

Is this difficult?  Is what difficult?  Describing or attaining?

Did I say that Conlaw is like a steamer trunk?  You can hardly lift a full steamer trunk.  But open it up and examine each garment individually and you find that each is readily recognized and understood.  Pack them together and the task of lifting is daunting.

Is Shakespeare difficult?  I don't know.  You and I can watch a production of Romeo and Juliet and get the point quite easily.  Read the annotated Alden Books version of the play, with all of its footnotes and annotations inserted by generations of scholars and you may wonder that anyone fully understands the Bard.

You can make a simple subject difficult, or a difficult subject overly simple.  There must be a happy medium geared to the intelligence and life-experience of the participant, the person who decides to investigate the subject of Conlaw.  How much time do you have?  Are you interested in reading about it or working with it?

Law students are not there for the casual study of history as a tourist exercise.  They're there because they're going to have to apply existing law to problems brought in by clients.

Applying Conlaw principles can be challenging because they tend to bump into each other.  One man's freedom is another man's limitation.  We don't have perfect freedoms in any context, as the example of slavery and Lincoln, above, demonstrates.  My freedom to throw a punch is reduced the closer it gets to you.  We even have limits on speech:  no inciting destruction in a context where it is very likely to occur; no threats, no criminal conspiracies, no soliciting others to commit crimes, no obscenity, no defamation.  Conlaw tries to define these limitations, and the concomitant freedoms, in a context-by-context basis.  The more general the statement either of limitation or of freedom, the more likely that a context will exist that requires a modification of the statement.  This is what makes Conlaw hard:  we can't always foresee the context that makes a liar out of us and we can't always define in precise words what we want to ban without also banning protected activity.  Try defining 'obscenity,' for example, without banning Romeo and Juliet.
Justice Potter Stewart threw up his hands here, famously stating that while he couldn't define obscenity, he knew it when he saw it.

Conlaw has proved challenging for many bright minds.  Some of its puzzles, like the definition of obscenity, seem insoluble in any absolute, idealized sense.  Yet we have a case that defines obscenity, Miller v. California (1972) that has proved at least workable since that time.  Conlaw is supposed to work on the ground, not in an ivory tower.

In conclusion, Conlaw is as difficult as you can imagine when you are seeking to stretch yesterday's principles to today's real world problems.  Unless one is able to successfully apply long-term principles to new contexts, the result is unhappiness and an invitation to violence and revolution.  There's a reason for the long, hot summers of the 1960s when the Civil Rights Revolution was boiling.  There's a reason we've see so few of them since, when the hope of change was allowed by law.

So, yes, the practice of Conlaw can seem most difficult indeed, while the reading about it, the understanding of it on a general level can be quite accessible to all.  It all depends on how far you want, or need, to get into it.  How high do you intend to lift that steamer trunk?

How hard is Conlaw?

Most educated adults understand that iron can be made to float.  They can see the ships sailing.  It's very simple.  Arrange the iron into a thin sheet in the form of a hull and you can get it to float.  How simple is it to build a ship?  I suppose it requires a lot of study to prepare to work in the office of a naval architect.  They have to draw up plans based on experience and a knowledge of materials and the men who build the ships in the yard and the men who later sail the ships.  The architects are the constitution drafters of a ship.  How hard is it to do this?  I imagine that it takes the full attention of many human beings to make a ship that will float?  Is this an impossible task?  Not judging from the number of ships I see entering and sailing out of the bay in San Francisco.  Like most human challenges, there are humans who are up to it, who do the work, and succeed.

That's probably the answer to the question of whether Conlaw is a difficult subject.  It all depends on whether you are sitting on the shore watching the ships, or undertaking to design, build, or sail one.  Watch out for the rocks.

SFLS CONLAW REVIEW CLASS SUMMARIES & HANDOUTS, CONSOLIDATED

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

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

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

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

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

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

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

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

How do I know?

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

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

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

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

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

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

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

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

Why? 

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

***

(1)  to current students:

Hi,

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

You can see what I think is important.

Best regards,

rs

***

(2)  to earlier students:

Subject: Conlaw Review Pointers

Hi, 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The list of URLs to the posts is below.

Break a leg.

Keep in touch.

Best regards,

/s/ Bob

R. Sheridan

***

List of blog post notes, essays, outlines:

ELEMENTS OF CONLAW

http://tinyurl.com/2qknf4

POWER, POWER, POWER:  THE aL-MARRI CASE

http://tinyurl.com/357m8d

SYSTEMATIC ANALYSIS OF CONLAW QUESTIONS:

http://tinyurl.com/357m8d

CLASS REVIEWS:

Class 5 review:

http://tinyurl.com/25r65d

Class 4  review:

http://tinyurl.com/2w2znd

Class 3 review:

http://tinyurl.com/3c24x5

Class 2 review:

http://tinyurl.com/39kt2r

Class 1 review:

http://tinyurl.com/2m64g8

SFLS CONLAW REVIEW CLASS-5

July 17, 2007

SFLS
Review of Constitutional Law
Class-5
R. Sheridan, Prof.

In the last class we wrote a practice essay exam and critiqued the answers, anonymously, to give everyone a chance to see what we’re up against.  Applying Conlaw principles to fact situations is what Conlaw is all about, and the situations always appear new, at first, until you begin applying the old principles, whereupon you often find that the situations aren’t all that new.  There’s a reason people still read the Bible, which imparts moral principles through stories and statements, from the Good Samaritan to “Do unto others…”

Conlaw is a bit like this.  From long running controversies we resolve them eventually and consolidate the gain in a text, or decision, which consolidates the victory of one side in a legal statement.  That’s what our Constitution, the Bill of Rights, and the Supreme Court decisions represent, a statement of law representing a consolidation of the victory of one side over its opposite.  The interesting thing from the perspective of now is how anyone could have wanted to live under a monarchy, a slave-holding system, or Jim Crow, unless you were one of the perpetrators, of course, instead of being a victim or second-class citizen having few, if any, rights, against the governing powers.

Our Constitution represents a victory over tyranny and oppression.  These are battles that have to be fought daily, even today, here.  There are some who think our current president something of a tyrant.  Why would they think that?  Isn’t tyranny reserved for people like Hitler, Stalin, Saddam, and other bad actors of history?  Or can it happen here if we don’t keep our guard up?

The Constitution protects against tyranny in two basic ways:  (1) it establishes a government structure in which power is divided three ways as to the national government and two ways as between the central government and the states.  Each is given a distinct set of powers against other governmental units and these units have rights against the others.  We set powers on the one hand against rights on the other and depend on the courts to act as umpire when they conflict, which they often do.  A good example would be the Commerce Power, given to the national government by the states (Art. I, Sec. 3, Cl. 3).  We know that the national government, by virtue of this delegation of power, may regulate international, interstate, and commerce with the Indian tribes.  But what if Congress hasn’t acted?  May the states regulate in these areas, as well?  The answer is yes and we call this idea, where the states may act while Congress has been sleeping, the Dormant Commerce Power.  That’s why they call it that.  If a state has a good enough public health and safety reason for regulating where Congress has not, the state regulation is valid. 

The case allowing this compromise is called Cooley v. Board of Wardens of Philadelphia, from around 1845 or so, in which the port of Philadelphia wanted to require ships entering the port to have a local pilot, to protect against shipwreck and other damage to piers and other vessels.  The ship-owners naturally didn’t want to pay this added expense, and so protested that the city (an arm of the state for Conlaw purposes) had no power to regulate in an area reserved by the Commerce clause of the Constitution to the national (or federal) government.  The Court allowed the port to regulate shipping and pilots this way.  As a result, all of the states may now regulate where they have good reason and Congress has not preempted the field with other legislation.  But if Congress has, then the federal law trumps state law because the federal arrangement of the Constitution provides that federal law is supreme over state law where they conflict.  See the Supremacy Clause, Art. 6.

In Conlaw we look (often first, but where you look first is up to you) to the question of power:  who claims it, how you describe the power (for example: legislative, executive, judicial, or many, many others from arrest to taxation, to prohibitions or conditions on this or that activity or license to pursue an activity), what’s the source, are there conflicting claims, is the use legitimate in terms of other claimants, and so forth.

And then we get to the question of rights.  The Constitution contains an appendix, called the Bill of Rights, listing the basic rights that individuals may use to protect against, block, and over-power government powers, even if seemingly legitimately exercised.  For example, Congress may legitimately use its Commerce power to regulate, but not if the regulation violates your rights to equal protection such as by restricting rights of some on the basis of race, religion, ethnicity, etc.  If  Congress did such a thing and a case were brought, the Court might scrutinize such legislation quite strictly to see whether there were a good enough reason.  Usually strict scrutiny is fatal.

Intermediate scrutiny is used where there may be a good reason for classifying people according to age, gender, height, weight, strength, health, and the like.  You don’t want children who are too young or little to enter the wave-pool.  They might drown.  You might need to put an age limit on soldiers, firemen, and cops, to protect lives.  So the scrutiny exists, to prevent fraud and bad (invidious) discrimination, but if real and legitimate, not a subterfuge, the Court is likely to uphold the regulation, using “intermediate” scrutiny.

And finally, for ordinary economic and social reform legislation, the lowest level of scrutiny is all that is required to uphold the law, regulation, or other government act.  So long as not crazy or self-contradictory in application or effect, it is likely to be upheld.  We call this passing the “rational basis test,” or RBT, for short.

Does the death penalty pass the RBT?  Is the death penalty crazy?  Does it work?  Is it counter-productive?  Or does it just make some of us feel better for a few minutes when reading the newspaper?  I’m sure I wouldn’t know.  Just thought I’d ask, that’s all.

The practice essay question set up a make-believe but plausible situation in which a bus company leased property in Washington, D.C. to operate a passenger terminal.  It put up a sign prohibiting anyone from making speeches advocating various causes to passengers.  Violators would be subject to arrest and prosecution based on the anti-trespassing laws of the city.  A religious activist who wanted speak there but was afraid of being arrested wants to sue to have the policy declared unconstitutional and enforcement enjoined.

The question asked the student to discuss.

Among the issues raised were whether the speaker had standing to sue, that is, a real, existing, direct, concrete injury.  Probably s/he does.

Is the bus company a government actor, a private actor, or a mixed actor.  The case in point is Brentwood v. Tennessee Secondary School Athletic Authority (the first of two Brentwood cases, the second decided this term).  Brentwood I set forth the test, which I recommend we all become very familiar with, because it comes up frequently, which asks whether the allegedly private actor or activity has become so commingled or intermixed (“intertwined” is the word the Court used) with government power that it is fair to call it a government actor or activity now.  If so, it is bound by the equal protection and other constitutional guarantees.  If not, then it is free to enjoy the rights of a private person, which include the right to make choices on the basis of private beliefs and prejudices.  You do, after all, have the right to choose your friends and mates based on preferences personal to you that may include religion, ethnicity, race, creed, etc.

You can thus see how important this public-private-mixed distinction is in Conlaw, and why we invent test questions to check on your ability to recognize the distinction.
Since these are intensely fact-bound determinations, the change of one or a few facts may produce different answers in different questions.  The lawyer’s job is to argue the facts in light of the principle.

In the First Amendment area, you may be permitted to bring an action to declare a statute unconstitutional without running the risk of violating it, and then, if you win, having it declared unconstitutional for everybody.  This is called an attack to the face of the statute (i.e. a “facial attack”), as where, by its terms, there is no conceivable way it can be upheld.  Thus a statute which provided a benefit to one race but not another could not be upheld against an equal protection attack based on any reason I can imagine.

If the statute could theoretically be upheld, it can nevertheless be held unconstitutional because of the improper way it is applied (called an “as applied” challenge).  Thus a statute or ordinance regulating laundries that was fair on its face but was applied to drive out only Chinese laundries was held unconstitutional as applied. 

This is the famous Yick Wo v. Hopkins decision from about 1887, out of San Francisco, where there is now a Yick Wo elementary school commemorating this victory for equal protection, even though little is known about this person who brought the suit and he was probably not a citizen.  The 14th Amendment applies to protect “all persons” in the U.S., not just citizens.

We reviewed the answers and noted common errors of law student writers, among which were:

1.    Jumbling too many Conlaw ideas into one sentence when it needs to be unpacked into one at a time for clarity of thinking and comprehension;

2.    Making major, oversimplified, unqualified pronouncements of law, as though the writer were The Grand Lawgiver.  The Supreme Court rarely if ever makes grand pronouncements of law. Why?  Because if it did, you, the lawyers, would throw it back in their teeth as though it were real.

a.    I cited the example where Justice Scalia, on a televised panel discussion, made such a sweeping statement only to have it thrown back in his teeth by none other than the whip-smart Justice Sandra Day O’Connor.  Scalia said “Everybody knows there’s no such thing as a federal common law.” 

Justice O’Connor shot back with, “Admiralty law, that’s common law, and we use it.” 

Scalia sheepishly replied that this was so narrow it wasn’t really included in his sweeping statement. 

Caveat sweeping statements of moral principle disguised as Conlaw.  You cannot even say, with accuracy, that the government may not round up people based on race.  We did that and it was upheld, following Pearl Harbor, in Korematsu. 

Do you think it couldn’t happen again?  It sits there like the famous rifle over the mantle-piece in the first act of a play.  You know it’s going to be fired in act three. 

Korematsu has never been overruled.  When Iran took our embassy people hostage in 1979, there were calls to round up Iranians in the U.S. mostly thousands of students.  After 9-11, some people wondered why we couldn’t just start searching and rounding up Muslims, indiscriminately. 

Whenever ethnic, racial, or religious fear becomes strong enough, we’re tempted to throw out the Constitution, particularly the Bill of Rights. 

We’re living through a period of fear right now, as a result of 9-11. 

Do you think we need the protection of the Constitution more, now, or less?

3.    Failing to write down the major questions: 

a.    Is the actor in question public, private, or mixed?

b.    Failing to argue the facts that go either, or usually, both ways.

c.    Asking what power is being exercised and describing the power:

i.    Legislative (power to enact laws which apply generally, not just to apply to one person, as such a law amounts to a forbidden bill of attainder if criminal in nature.

ii.    Executive  (duty to faithfully execute laws passed by Congress, or delegated by Congress to executive agencies with power to make implementing rules.

iii.    Judicial  (power to hear and determine individual cases).

iv.    Any other power; just describe it to see if it falls within one of these or elsewhere, to see what difference the type of power makes.  For example, if a state granted a vessel owner the right to capture enemy merchant shipping in time of war, and sell them for profit, this is the old legalized piracy power, prohibited to states by the prohibition against letters of marque (!) In the old days this was used a lot.  It’s how Queen Elizabeth I became so powerful, with Drake and Hawk and Raleigh way-laying the Spanish Gold Fleet.  Our Framers knew all about this stuff.  They had to put up with it during our War for Independence, when lots of our ships were captured, since we had no navy and had to build one to protect against pirates and the Royal Navy, our former protector, and now enemy.  See John Paul Jones, followed by the USS Constitution (“Old Ironsides”) in Boston, and the Barbary Corsairs.

d.    Asking whether the question raises an issue of separation of powers (among the three branches, you remember, checks-and-balances to protect against tyranny);

e.    Asking whether the question raised an issue of federalism (federal power vs. states rights);

f.    Asking whether some individual right protected by the Constitution overcomes government power.  This is what the battle over equal protection (the civil rights movement) and privacy (gender freedom to marry, for example, and Lawrence v. Texas), are all about.  The Constitution protects individuals, one person, against a government of 300 million.  This is why Conlaw is so powerful.  It’s our operating system.  It’s all around us.  You just have to pay attention.

i.    This usually raises the question of what kind of scrutiny the government act or legislation requires.  The more the opportunity for racial, ethnic, and religious subterfuge, the more scrutiny we want to see.  Strict scrutiny is usually fatal in fact while intermediate scrutiny often lets the government conduct pass (but not in the gender discrimination case of the young woman who wanted to enter Virginia Military Academy (VMI); Justice Ginsburg said she was applying intermediate scrutiny but she took a really hard look and found the gov’t policy (VMI was a state run school) a violation of equal protection based on gender.  From this we get the rule that gender issues receive neither strict nor rational basis review, but intermediate, sometimes with teeth.

g.    I’ve suggested that Conlaw might be more understandable by following a mental checklist that incorporates these major questions.

h.    Often a student will think through a problem, go over mentally a lot of these questions to eliminate them, without indicating on paper that s/he thought of them and considered them, and eliminated them.  The examiner can only conclude, from what the student wrote, that the student wasn’t aware of them.  It’s okay to indicate that you’ve considered an area but eliminated it.  Maybe it will cause you to rethink whether it really should be eliminated.  Usually if you think of something, it has some applicability, otherwise you wouldn’t have thought of it; give some credit to your brain-power.  It’s stronger than you may think.

i.    Put your thinking on paper.  We’re more interested in seeing your Conlaw thought process than seeing whether you can come up with an answer that is right or wrong as in a math test.  Most of the questions have no real answer, but are vehicles to allow you to show your ability to think in Conlaw terms.  That’s why so many questions call for “discussing” the Conlaw issues, rather than asking whether who wins or loses.

j.    Write in simple complete sentences.

k.    Write clearly so that the examiner can read.

l.    Outline your proposed answer on scrap that you don’t hand in; then arrange it the way you want in the Blue Book.

m.    The examiner is looking to give good grades, not bad; the worst thing you can do is to leave a blank answer.  Who can give credit for that?  Use your head and provide some sort of relevant answer; in this sense, a law exam does resemble a math exam in that you don’t get credit in a multiplication problem for writing what you know about subtraction.

n.    Not all questions call for discussion of standing or scrutiny levels.  Some have to do with whether a unit of government has the power to do something.  When someone sues on this basis, however, we want to make sure that this person has standing and the question is justiciable and not, say, moot or a political question.

4.    We finished the class by going over a few leading cases including:

a.    Barnette v. W. VA, a flag-salute in school case from 1943 which overturned the Gobitis case from two years earlier.  In Barnette, Justice Jackson wrote that no government official, high or low, had the power, under our Constitution, to tell you what to believe.  Thus there is no official belief system in America.  You are free of government interference to believe in any religious, political, national, or other faith that you choose, the neighbors and government be damned.

b.    Brandenburg v. Ohio (1969); the culmination of a long line of cases stemming from WWI and Holmes’s clear and present danger test, finally holding, and this is the law today, that a person may advocated even criminal activity (forcible overthrow of government, as in the Communist cases of the 1950s) up until the point of great danger likely to happen now.  This is called “imminence” meaning likely to happen very soon, like really.  Pamphlets aren’t likely to result in anything happening now, nor do most stump speeches.  But if the speaker advocates a march on city hall now, as in the White Night riot and burning at City Hall in San Francisco following the Dan White verdict, the police (government) can act to protect itself.

c.    Lawrence v. Texas:  privacy (substantive due process, equality (in classifications), in gender sexual relations; anti-sodomy law held unconstitutional as straights could engage in the same forms of intercourse without violating any statute while gays could not.

d.    Affirmative Action;  generally Grutter & Gratz, as likely modified by the new Parents v Seattle decision which modifies Brown v. Board, some believe, depending on how they thought of Brown to begin with, as guaranteeing integration of public schools by taking race into account, or forbidding use of race to be used as a legitimate criteria in public schooling, there’s a difference.  In one case the Constitution is colorblind and in the other it is color conscious, allegedly for a good purpose.  “Good” in this sense varies with time and culture.  In the bad old days race was used to make one race legally subordinate to another.  We’re trying to get past this.  Some are, anyway.  For others, it’s business as usual.  The question is what the courts will do as a matter of constitutional law.

e.    Abortion:  the test is still Roe/Casey, a woman has a personal right to choose to have an abortion at any time before viability of the fetus (ability to survive outside the womb), but that the state has the right to adopt reasonable regulations that are not “unduly burdensome” as to exercising this right.  Notification of spouse has been held, in Casey, to be unduly burdensome.  24-hour delay and receiving reading matter has been held not unduly burdensome.  After viability, the woman has the right to choose to protect her health, physical and emotional.  However in the recent case of Carhart v. Gonzales (2007), the Court upheld (4:1:4) an act of Congress prohibiting a late term abortion (called “partial birth abortion”) that made an exception for the physical health of the mother, but not her mental health.  This signals a new view on the Court, suggesting it may be prepared to cut back on the woman’s Roe/Casey right.

f.    I called attention to First Amendment items on the blog, particularly the post called “First Amendment Poetry” dated June 6, 2006, containing commentary, excerpts and opinions regarding Holmes, Brandeis, & Jackson in Schenk, Abrams, Whitney, Olmstead, and Barnette.

g.    By this time we were running out of time, if not ideas, and we said farewell, good speed, and write if you get work.

CHENEY: WHERE DOES HE GET THIS STUFF?

Sean Wilentz, one of America's leading historians shows you where, in this NYT Op-Ed:

 

---

July 9, 2007

Op-Ed Contributor

Mr. Cheney’s Minority Report

 

By

SEAN WILENTZ

   

Princeton, N.J.

TWENTY years ago this week, Lt. Col. Oliver North testified for six days before a special joint House and Senate investigating committee. Permitted by the Democratic majority to appear in his bemedaled Marine uniform, and disastrously granted immunity, Colonel North freely admitted that he had shredded documents, lied to Congress and falsified official records.

Colonel North justified these crimes as necessary to protect two of the Reagan administration’s covert policies: defying a Congressional ban on aiding the anti-Sandinista contra insurgents in Nicaragua; and selling arms to Iran — officially classified as a terrorist state — in order to free American hostages in the Middle East.

Mixing bathos with belligerence, Colonel North played the incorruptible action hero facing down Washington politicians and lawyers. He also suggested that, under the Constitution, the president and not Congress held ultimate authority to direct foreign policy.

Most of the Congressional committee members, Republicans and Democrats alike, expressed shock at Colonel North’s testimony. And despite the surge in Colonel North’s personal popularity, he failed to sway other Americans on the underlying issues. Clear majorities in opinion polls said that Colonel North had gone too far in his covert operations, especially in helping the contras. Roughly half of those polled believed that he had acted as if he was above the law. Sixty percent said that Congress was more trustworthy than the Reagan White House on foreign relations.

And Mr. North was eventually convicted of three federal felonies — receiving an illegal payment, obstruction of a Congressional inquiry and destroying official documents, although an appellate court held that his testimony delivered under Congressional immunity may have affected jurors and reversed one conviction. (Prosecutors gave up on the other two.)

But there were dissenters. A number of House Republicans on the committee cheered Colonel North on. One who led the way was Dick Cheney of Wyoming, who praised Colonel North as “the most effective and impressive witness certainly this committee has heard.”

Mr. Cheney the congressman believed that Congress had usurped executive prerogatives. He saw the Iran-contra investigation not as an effort to get to the bottom of possible abuses of power but as a power play by Congressional Democrats to seize duties and responsibilities that constitutionally belonged to the president.

At the conclusion of the hearings, a dissenting minority report codified these views. The report’s chief author was a former resident fellow at the American Enterprise Institute, Michael J. Malbin, who was chosen by Mr. Cheney as a member of the committee’s minority staff. Another member of the minority’s legal staff, David S. Addington, is now the vice president’s chief of staff.

The minority report stressed the charge that the inquiry was a sham, calling the majority report’s allegations of serious White House abuses of power “hysterical.” The minority admitted that mistakes were made in the Iran-contra affair but laid the blame for them chiefly on a Congress that failed to give consistent aid to the Nicaraguan contras and then overstepped its bounds by trying to restrain the White House.

The Reagan administration, according to the report, had erred by failing to offer a stronger, principled defense of what Mr. Cheney and others considered its full constitutional powers. Not only did the report defend lawbreaking by White House officials; it condemned Congress for having passed the laws in the first place.

The report made a point of invoking the framers. It cited snippets from the Federalist Papers — like Alexander Hamilton’s remarks endorsing “energy in the executive” — in order to argue that the president’s long-acknowledged prerogatives had only recently been usurped by a reckless Democratic Congress.

Above all, the report made the case for presidential primacy over foreign relations. It cited as precedent the Supreme Court’s 1936 ruling in United States v. Curtiss-Wright Export Corporation, which referred to the “exclusive power of the president as the sole organ of the federal government in the field of international relations.”

History, the report claimed, “leaves little, if any doubt that the president was expected to have the primary role of conducting the foreign policy of the United States.” It went on: “Congressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with the core presidential foreign policy functions, they should be struck down.”

These conclusions went beyond what had long been considered the outermost limits of presidential power — and they put a special twist on history. Hamilton certainly desired a strong executive, but warned that it would be “utterly unsafe and improper” to give a president complete control over foreign policy.

The Curtiss-Wright decision actually concerned a presidential claim of constitutional power to act in the absence of an act passed by Congress, not in violation of such an act.

One of the foremost constitutional scholars of the 20th century, Edward S. Corwin, stated in 1957 that the Constitution was “an invitation to struggle for the privilege of directing American foreign policy,” and that in many cases “the lion’s share” of that privilege belonged to the president. But Corwin finally insisted that “the power to determine the substantive content of American foreign policy is a divided power.”

The Iran-contra joint committee majority in 1987, including some Senate Republican members, charged that the minority report, with tortuous illogic, reduced Congress’s foreign policy role to nearly nothing. Senator Warren Rudman, a New Hampshire Republican and vice chairman of the Senate side of the investigating committee, paraphrased Adlai Stevenson and quipped that the minority report had separated the wheat from the chaff and left in the chaff.

His comments did not lead Mr. Cheney to alter course, as Mr. Cheney’s actions as vice president demonstrate. Asked by a reporter in 2005 to explain his expansive views about presidential power, Mr. Cheney replied, “If you want reference to an obscure text, go look at the minority views that were filed with the Iran-contra committee.”

“Nobody has ever read them,” he said, but they “are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters.”

In truth, as Mr. Cheney has also remarked, the struggle for him began much earlier, during the Nixon administration. A business partner says that Mr. Cheney told him that Watergate was merely “a political ploy by the president’s enemies.” For Mr. Cheney, the scandal was not Richard Nixon’s design for an imperial presidency but the Democrats’ drive for an imperial Congress.

Still, Mr. Cheney’s quest to accumulate unaccountable executive power — a quest that has received much attention of late — took a major turn 20 years ago. And part of Iran-contra’s legacy has now become a legacy of the Bush-Cheney administration.

***

Sean Wilentz, a professor of history at Princeton, is the author of a forthcoming book on the Reagan administration and its legacy.

[Emphasis added]

 

CALCULATING IN CONLAW

IDENTIFYING CONLAW ISSUES

EASY BUT NECESSARY CONLAW:  READING CASES, HISTORIES, BIOGRAPHIES, COMMENTARY
CHALLENGING CONLAW:  APPLYING OLD DOCTRINE TO NEW SITUATIONS.

THIS IS A CREATIVE ACT OF IMAGINATION WORTHY OF ANY ARTIST

DRAW INSPIRATION FROM THOSE AROUND YOU WHO MAY FEEL “THERE’S SOMETHING WRONG ABOUT THIS.”

Up to the lawyer to articulate the issue in legal terms.  Ex:

The wife who objected to the police using as evidence of unlawful membership in a gang prosecution a poster in a public school hallway drawn by the husband while in high school as an art project which contained gang imagery.  Issues of free expression, artistic freedom, academic freedom, self-incrimination (school required the art project), search and seizure (police on school premises, grabbed the poster from the wall).  The wife felt that use of the poster was wrong before the defense lawyer did.  The lawyer thought about the matter and came up with legal issues, just as on a bar exam.

In a procedurally complex case involving interim appeals by the prosecution which caused much delay, the defendant completed serving a prison sentence and a period of parole but the court had not finalized a pending item of sentence having to do with restitution which could not have previously been ascertained because this required a due process hearing at which defendant was entitled to testify to deny restitution was proper given her relationship with the elderly many who gave numerous gifts.  The prosecutor had threatened further prosecution, causing her to exercise her Fifth Amendment right.  The judge then asked whether the court still retained sentencing jurisdiction.  Criminal courts obtain jurisdiction by personal appearance of the defendant, either voluntarily or in custody, and lose it a limited time after sentencing. 

The judge’s questioning prompted exploration of the Pennoyer v. Neff issue, whether the essential in personam jurisdiction continued to exist.  The court later ruled that it did not as jurisdiction had not properly been retained over that issue pending other procedures.

IDENTIFY THE ACTOR: 

FEDERAL, STATE  (FEDERALISM ISSUES)

PUBLIC, PRIVATE

BRANCH: LEGISLATIVE, EXECUTIVE, JUDICIAL, V.P. DICK CHENEY (SEPARATION OF POWERS ISSUES)

IDENTIFY THE POWER:

LEGISLATIVE: POWER TO MAKE LAWS OF SPECIFIC OR GENERAL APPLICATION; CAVEAT EX POST FACTO CRIMINAL (BUT NOT CIVIL) LAWS OR BILLS OF ATTAINDER

EXECUTIVE POWER: TO FAITHFULLY EXECUTE LAWS PASSED OR AUTHORIZED BY CONGRESS

(Congress creates Acts of Congress authorizing the Executive Branch to carry them out through various federal agencies established under the president; Congress gives these agencies rule-making power to implement the broad overall powers granted to the agency.  The Court gives some deference to agency expertise in interpreting these rules (Chevron Doctrine).

The presidential decree taking over the steel mills during the Korean War by Pres. Harry S Truman was declared unconstitutional as a decree is seen as a lawmaking act (legislative) and the president is not given the power to legislate, only to carry out, and he had been refused the power to take over companies to quell strikes which threatened the manufacture of munitions or anything else, by Congress.

JUDICIAL POWER:  TO HEAR & DECIDE CASES AMONG INDIVIDUALS

POLICE POWER (NOT SAME AS THE POWER OF A COP):  GOVERNMENT POWER TO REGULATE PUBLIC HEALTH, SAFETY, WELFARE & MORALS.

THIS POWER EXISTS BY DEFAULT IN ALL GOVERNMENTS EXCEPT IN THE U.S. WHERE IT EXISTS ONLY IN THE STATES, NOT THE FEDERAL GOVERNMENT. 

WHY?

Because this was such a big power that the states jealously retained it, giving the federal government only as few as it needed to protect them.

The powers granted to the federal government by the states are contained in Art. I, Sec. 8, Clauses 1-18 plus the necessary and proper (elastic) clause-19.

Additional powers are retained by the states and the people  (Amendments 9 & 10).

Note however that as to territory owned or controlled by the federal government, it does have the Police Power:  e.g. Washington, D.C., territories before statehood. 

The federal government simply has no police power over the residents within the 50 states; the states do.  The California state statutes are an example of exercise of the police power:  Civil Code, Code of Civil Procedure, Government Code, Penal Code, Health and Safety Code, Welfare and Institutions Code, Corporations Code,  Probate Code, Vehicle Code, etc.

Do we have a federal penal code? 

No, federal crimes are defined in terms of other powers granted to the federal government by Art. I. Sec. 8, Clauses 1-19, or other constitutional text. Thus, theft can only be punished federally if, say, a car is transported across state lines; kidnapping, the victim has to be taken across a state line before the FBI can get involved, although as the result of the Lindbergh baby kidnapping and murder in the early 1930s, Congress enacted a presumption that 24-hours after a kidnap, if the victim was not found, it was presumed that a state line had been crossed, to empower the FBI to investigate.

THE DELEGATED POWERS OF ART. I, SEC. 8, CLAUSES 1-18 PLUS THE ELASTIC NECESSARY AND PROPER CLAUSE

EARLY MAJOR ISSUE:  WHETHER TO INTERPRET THE ELASTIC CLAUSE NARROWLY (STRICT INTERPRETATION) OR BROADLY (TO ENLARGE FEDERAL POWER AT THE EXPENS OF THE STATES, THE FIRST BIG FEDERALISM ISSUE TO ARISE).

M’CULLOCH V. MARYLAND:  JOHN MARSHALL, C.J, AN AVOWED NATIONALIST (FAVORING STRONG FEDERAL POWERS VIS-À-VIS STATES) RULED IN FAVOR OF A LOOSE CONSTRUCTION, TO JEFFERSON’S HORROR. 

U.S. establishment of a national bank was thus upheld as necessary and proper to running a government despite lack of grant of such a power.

Gibbons v. Ogden:  Also a Marshall, C.J. opinion holding transportation of passengers by ferry on the Hudson River to be ‘commerce’ under the Commerce Power even though not involving the trade of goods, which is how commerce had previously been understood.  This gave federal government power over waterways connecting states, thus taking power from states to award monopoly franchises to corporations on federally regulated waterways, as federal is supreme over state power where both co-exist.  Problem arose when a New Jersey ferryboat man (Commodore Vanderbilt from Staten Island, N.Y. ran a passenger ferry from New Jersey up the Hudson in competition with Robert Fulton’s steamboat which had been given an exclusive franchise by the State of N.Y.  This nationalist decision curtailed state created monopolies limiting transportation to pet corporations and opened transportation to all under federal protection.  Railroads, canals, shipping, highways grow as a result, strengthening the nation.

Conlaw issues often start small, over mundane matters, but grow to have large effect once the implications become fully understood.  They thus appear to be the product of broad social movements, such as development of the country, racial relations, expanding individual rights.

Conlaw requires you to know enough history to relate to the doctrine you deal with;  it’s not good to have only a spotty understanding of the history, as your opponent, or the judge, may have a more complete understanding, hence ability to argue effectively and truthfully.  The Court relies on amicus briefs to receive information from interested non-parties as to this background and context, plus the justices own education, research, and experience in affairs of the world, nation, state, locality, and individually.

Conlaw requires a lot of background reading, which is part of the fun.

Conlaw, more than any legal subject (since it embraces them all) provides you a key to understanding the world you live in, but it is not complete in itself.  Remember, it is only 231 years old and the world has been around a lot longer than that.  We draw on our history, literature, bibles, and ideas of moral development to guide us constitutionally, just as the Constitution guides us legally, in a symbiotic relationship, each drawing on the other.

In the end, it’s up to us, not God, to run our affairs.

We’re running a government, not a church.

God doesn’t live in the White House any more than he lives in the tax collector or dogcatcher’s office.

All lawyers need to be able to recognize Constitutional Law issues; we don’t depend on Conlaw specialists except in limited areas such as where a law firm specializing in federal appeals hires former clerks to justices and the like.  In the criminal courts, attorneys argue the law of search and seizure, admissions and confessions, bail, and trial law all the time.

In the analysis of every case, you must ask whether there are any constitutional questions.  If the answer is no, go back and ask again, as you probably missed it.  At least look at the issues that you think were properly decided, e.g. in a criminal case, was the arrest legal? The search? Seizure?  Admission or confession? The plea of guilty?

What about the statutes governing your situation?

Who enacted them?  Did this body have the power? Does your client have any rights improperly extinguished by this statute or rule?

Law students sometimes appear to overlook issues such as the above, perhaps because they seem so obvious.  In Conlaw, we need to re-examine the obvious in order to see what may not be so obvious, even though we may all think “we know the law” because we’ve gone over it so many times.

The tricky part of Conlaw is in applying what we know, otherwise the knowledge is useless, as we’re not using it to good effect.

We learn to apply Conlaw by constantly practicing, by imagining the arguments, in daily life, such as by reading news items, watching government activity from the cop on the beat to the city council, board of supervisors, state and federal legislatures, the president, and better yet, the acts of many foreign governments which, if done here, would be rampant violations of our Constitution.

Relate these to our plan of government, our Bill of Rights, the cases you’ve read, and your own feelings of right and wrong, which you must learn to develop, otherwise how do you expect to be able to help a client who doesn’t have your training, insight, learning, and experience?

So far we’ve examined whether government has the power to act.

Sometimes it oversteps, as when Congress grants a power to the president it does not have to grant (al-Marri, 4th Circuit, 2007, power to declare someone in custody an ‘enemy combatant’ to avoid having to arraign him in court), Marbury v. Madison, 1803) power of the Supreme Court expanded to handle certain matters not allowed it by the text of the Constitution.

Sometimes the president exercises a power he doesn’t have:  Truman seizing the steel mills (via decree, a legislative act) to prevent the flow of munitions during Korean War – Youngstown.

Sometimes one branch exercises a power of a different branch, acting ultra vires: Congress, in Chadha v. INS, purported.

Now we can examine individual rights, which act to block the exercise of government power.
See Bill of Rights.

Most students, and lay people, can see obvious abuses of power.  More is required of lawyers, as not all abuses are obvious.  Detecting the non-obvious requires practice and constant thought.  Conlaw is not a dilettante’s game.  The people you will be having discussions with will have given a lot of thought to their position, usually.

You must come up to speed through constant preparation.  Then the good ideas will come to you when needed.

From here, this outline is infinitely expandable to cover individual rights and what happens when they meet government power.  In the days of the king, there were no individual rights, or very few that could stand up to him.  But we gave up the monarchy in 1776 and began operations under the new Constitution in 1789, at first in New York, then Philadelphia, and finally Washington, D.C.

Individual rights have expanded, in terms of race, gender, and sexual orientation, although some battles are far from over.  See, e.g. what’s left of affirmative action, gay rights, the diminishing Roe/Casey/Carhart abortion right, reduced access to courts for prisoners, and stricter standing requirements for those protesting government policies.

One of the recurring and well-publicized issues is how “activist” the justices may legitimately be when deciding cases by interpreting law, both Constitutional and statutory.  There’s a difference.  When the Court interprets a statute which does not involve deciding a constitutional issue, the decision is not a matter of constitutional law, but merely one of statutory interpretation.

But when the Court does decide a matter of constitutional law, it is as though the Constitution has been amended to that extent.

Opponents call this legislating from the bench.

Proponents call it the common law decisional process; business as usual.

We’ve had long periods where the conservatives were active (the Lochner era, 1905-1937) and then the pendulum swung (the New Deal and Warren Courts 1937-1962, roughly). 

Conservative Pres. Richard Nixon replaced Earl Warren, C.J., with Warren Burger.  He was followed by William Rehnquist, and now John Roberts.  All of these conservatives have as their agenda the turning back of the Warren Court tide, which they regard as activist in the liberal direction (“Impeach Earl Warren”).

To turn back the tide, the choices include:

Refuse to extend previous doctrine

Limit it

Cut it back; i.e. retreat from its outer limits

Reverse without saying you’re reversing or overruling;

Expressly overrule, i.e. by saying you’re overruling;

The principle justifying, or not, the overruling of established principle is set forth in Casey v. Planned Parenthood of PA. (“Casey”).  When a rule becomes unworkable or has otherwise outlived its usefulness (to whom?) is ripe for overruling, one way or another.  See the opinion.

When liberals are active, conservatives holler foul, and vice versa. 

There appears to be a difference of opinion between legitimate interpretation which has the effect of changing the (constitutional) law and when that same act is called “too activist” or “legislating from the bench.” 

How would you define the two so we can tell the difference?  Don’t worry, this has been an insoluble problem for scholars more advanced than we are.

Apart from the description in Casey, we don’t have an ironclad rule as to when a justice, or several, may act boldly or timidly in the face of precedent.

The Supreme Court is the only Court which is not bound by decisional precedent.  All others have to follow suit, as they are sworn to protect and defend the Constitution, which the U.S. Supreme Court interprets authoritatively and finally.  They are not final because they are always correct, but they are always correct in that they are final.  Someone said that.  Good.

The buck has to stop somewhere, and with us, it’s them.

ONCE PAST THE ISSUES OF WHICH ACTOR, WHICH POWER, WHICH BRANCH, AND WHICH COMPONENT OF GOVERNMENT, STATE AND FEDERAL, OTHER ISSUES ARISE, SUCH AS WHETHER INDIVIDUAL RIGHTS LIMIT GOVERNMENT POWERS.  SEE THE BILL OF RIGHTS.

Example:  Congress, in exercise of its Commerce Power, bans public speech on political matters in interstate train station, interstate bus stations, and international airports.

The actor is:  the government, as opposed to a private actor;

The unit is:  Congress

The power is:  Commerce

The source:  Art. I., Sec. 8, Cl. 3.

So far, so good.

Next question is:  what about the rights of the speaker to express and the listener to learn how others feel?  Isn’t this important in a democracy?  To keep voters informed? 

Is Congress regulating the content of the message, such as by providing that only Republicans may speak there, or Democrats?  But not Communists?  Socialists?  Green Party speakers?

Or is Congress only regulating the time, place, or manner in a legal fashion which permits the message but regulates the format?

Can Congress ban just one category of speech, political, as judged by its content?  Does this allow religious speech?  Commercial speech?  How do we classify begging in such spaces, such as by the Hare Krishnas?  Or demonstrations by union members, or civil rights organizations?  You can see that matters can become more complex the further along we go.

Law students frequently skip over mentioning the earlier, bigger questions, in order to leap to this hard area where they may not know all the rules.  Their answers then look bad.

I suggest doing what I’ve done, that is to identify the players (actors, as government or private) and then
the unit, the power, the source of the power, and then reach the hard part where your knowledge may be thinner or you can’t remember which way the leading case turned out.  At least you can receive credit for recognizing the previous big issues, and who knows, by recognizing them, you may discover that this is where the main issue lies.

For example if it were not Congress but a private bus company which banned all demonstrating, pamphleting, or soap-box speaking, or the like in its private waiting room, might that make a difference?  It might.  This might save you a lot of writing chasing a red-herring.  Red-herrings lead down dead-end trails.
But suppose that six different private bus companies rented space in a bus terminal provided and run by the City, and the city banned public speech making on one or all topics?  Now we’re back to a public entity attempting to regulate an instrumentality or channel of interstate commerce.  Has the federal government regulated in this area?  If so, which do you think controls, state or federal?  See the Supremacy Clause, Art. VI.

Do you see how you can calculate using Constitutional law? 

Change one fact and the outcome changes? 

You need to be able to see this clearly in order to do Conlaw, which in this aspect is a bit like doing problems in geometry or algebra, the basic rules of which you must recognize and may not violate.

Among the most basic are the rules listed above.  There are more, but for those, you should consult the outline of your casebook. 

Learn the basic rules, remember that they have limits, esp. when the powers of one unit of government bump into those of another, which is why we identify powers, players, and units.
Then come your rights and mine, which bump into the above powers even if exercised within the power to regulate at all.  Congress, and the states, have various legitimate powers which may not be exercised in a legitimate manner, such as by discriminating on improper bases, or by infringing on rights of expression, conscience, etc., as delimited by the First Amendment.

Can you imagine a law exam in which one or more of the questions required you to calculate using Conlaw principles, such as suggested above?

Can you draft an exam question that would raise such issues, and require a calculation that produced a right/wrong result?

Suppose a public school required the students, each morning, to sing a hymn in praise of Jesus?  Allah? 

Based on your study of Conlaw to date, what result?  Reasons?  Can you suggest any text or case law that apply?  Can you do better than the next person on the bus who didn’t study Conlaw as you have?  Can you help the student and the parents who come to you complaining that this is what they’re now doing in the student’s public school?

Suppose a couple come to you with this problem except that they don’t have a child in school, either because they are beyond child-bearing age, or their child has graduated already, or they’re planning to have children, but don’t have a child yet, perhaps in a few years.  Or perhaps next month.  Do you see what problem this raises?  Does this couple have standing?  Now?  In the future?  It existed but disappeared?  Suppose they sued while their child was in school, but the child graduated while the suit was pending. 

There’s a name for this issue, and a doctrine on top of that which accounts for situations which recur but which don’t stick around long enough to allow the litigation to be completed.  You should know what I’m talking about and write the name of these doctrines in the margin, here.

Does this help you get a handle on Conlaw and how it works?

Let me know.

Remember, in Conlaw, as in Geometry and Algebra, you only get credit for using the doctrines that apply to the fact problem given.  In a problem with triangles, you don’t get credit for omitting working with triangles but telling the math professor all you know about circles, as that is irrelevant.

Your job is to learn more than the average next guy on the bus, because you’re not average, you’re a law student, a soon to be lawyer whose job it is to know more than the other passengers.

There are some pretty smart and well-informed passengers, so don’t take anything for granted.  Being a lawyer requires constant application to stay ahead.

BUSH REJECTS SUBPOENAS ON ATTORNEY FIRINGS

Congress issued the subpoenas.

Congress is exercising a power:  to issue subpoenas, as part of a bigger power: oversight of government operations including the conduct of the executive branch in possible violation of the U.S. Civil Service laws.  Federal officials are divided into two categories:  political appointees who head each office, and civil service workers who cannot be fired for reasons of political party affiliation, i.e. partisanship.

The president resists the subpeona.  Production of the evidence may be politically embarrassing, even damaging; yet this is insufficient reason to fail to produce and can result in a contempt of court citation for disobeying a court order.

The president, when the matter comes to court on the citation which Congress will ask the federal district court in Washington to issue, will likely argue that his firing decisions are within his power as president and that the reasons are matters of policy of the executive branch, not to be overseen by Congress.  That's a guess.

At any rate, for Conlaw analysis purposes, we have a separation of powers issue because we have a conflict in power between the two branches.  The dispute will be heard by the third branch, the judiciary.

Rights and powers.

That's what Conlaw is about, who has 'em and who don't.

See the LA Times article below for the skinny:

CLASS-4 CONLAW REVIEW, SUMMER 2007

We began with two questions for which I requested written answers:

1.  After a year's study plus three 3-hour review classes, and reviewing the recent analytic summary on Sheridan Conlaw, I've realized some things about Conlaw that I must've missed previously.  Those include:

2.  The way I plan to attack Conlaw from now on so I can make it mine is, (i.e. my new, harder digging study plan) is:

Responses (with commentary by me) included:

• I've missed the application of the law to certain fact patterns.  Is the Constitution strictly interpreted or does it bend with the times?
• I plan to practice applying Conlaw principles to fact patterns I see in the media.
• I've realized that Conlaw is all around us; the role of government power, and which unit of government is assigned certain power, is huge.
• regarding 'black letter law' [some law professor's opinion of what the law is] I must not only memorize this [to which I strongly objected on the theory that no one can memorize text with any degree of reliability, but we can all remember the story of Romeo and Juliet, for example, and the Holocaust, and draw certain lessons, which in Conlaw have been consolidated into documents such as the Constitution (the result of the American Revolution), the Bill of Rights (the individual liberties which are the product of the earlier experience of Britain and its Protestant v. Catholic plots and civil war between Parliament and the monarchy, and our experience with Redcoats kicking in doors to find contraband in Boston such as tea and sugar on which taxes had not been paid, i.e. smuggled goods.  The Civil War amendments represent the consolidation of the gains of the victorious North over the South.]
• Think in images not words.
• Remember the stories of the events leading up to the rule instead of memorizing the rule w/o fully understanding it.
• Remember the elements of Conlaw [identify the power, the unit of government, the actor (public, private, mixed), the major doctrines such as DP, EP, FA, and the scrutiny levels regarding claims of EP violations:  low (RBT), intermediate (VMI), and strict (racial classifications, quotas); see the new case interpreting Brown, Parents v. Seattle  (05-908); look for illegitimate uses of power, by whom, and the limits of this power.  Identify the power.]
• Conlaw is not like other law courses.  There are  not "just" elements; you must really understand, not memorize.  I have been really missing my analysis.  I understand the 'law' but in a vacuum. This supports my view that students often know more than they think, but don't know how to use it.
• I practice writing essay exams with a tutor.
• For the first time I realized that in Marbury v. Madison Congress did not have the power to have the Court hear the case.  I also missed the importance of where the power is.
• I plan to re-read the leading cases with an eye towards which period in history it falls; also to read the recent decisions to see how they reference past important cases, and why; also newspaper articles that pertain to the detention of alleged enemy combatants, and how it demonstrates the power the president is invoking which is not necessarily his.
• upon reviewing decisions, ask who is doing what and how the actors conduct affects individual rights; I am realizing how much constitutional law is in our everyday lives;  I now have a better understanding of what liberty means, e.g. ability/right of an individual to choose how they want to live.
• I plan to thoroughly read and analyze the cases, to ask myself who is doing something in a way that affects individual rights.  [That's a good start, but don't forget that although an act may affect an individual, you may find out that government units are in conflict, such as in Marbury and in Chadha v. INS.
• I plan to redefine the law in my own words so I can truly understand its meaning.  [Good, that's one reason to start outlining, so you know where to put all your newfound knowledge, so you can find it in your mind when you need it.  Listening to law discussions may be in one ear and out the other; writing it down in a form and structure that you understand makes it yours forever.]
• A working knowledge of the entire Constitution's structure and key portions.  [Good, it's easy to lose sight of the forest while examining the bugs on the trees.]
• My plan includes a serious effort to outline the relevant chapters of the casebook to discuss the principles. [Good, the author's outline is the roadmap he used in organizing the subject; you could do a lot worse.]
• I realize that government powers often collide with individual rights; the president's powers are enumerated [they're not; Congress's are; contrast Art. I, Sec. 8 with Art II and see whether you disagree.]
• In order to sue [in federal court] a person needs to have standing, i.e. show that they are damaged or injured. [Concrete injury is often the expression used, here and now, not remote or speculative, otherwise every Tom, Dick & Harry would be filing frivolous lawsuits just to show how important they think they are.]
• The police power [not the same as the power to arrest that police officers have, altho' these can be considered a subset of the larger category] includes matters involving health, safety, welfare and morals.  [This is the great power, to regulate, meaning to legislate on, H, S, W, & M, which the 13 new states refused to give up to the new central government they carefully organized.  Why?  Why give up more power than you have to?  The federal government cannot legislate on H,S,W, & M, unless in the guise of other delegated powers such as commerce, army-navy, control over federal land (the Presidio, e.g.) and territory, e.g. Hawaii and Alaska before statehood, Washington, D.C., Puerto Rico, etc.
• I plan to review my notes from last year, my study notes from this class, and your blog. [Good; don't forget to read a good newspaper and a book here and there on a Conlaw related subject, to keep the coals refreshed and stirred.  Plenty of good biographies of the justices, the Court, and how they dealt with certain issues and why.  Did I mention historical articles and books?]
• These cases are alive - history surrounds us;  it is harder and more interesting than I thought; the basic nexus of power/rights is the struggle in all societies; what the Constitution means today.
• I plan to re-read all cases [good luck]; re-write class notes weekly; review other forms of comment on major cases; Google the cases, check the blog, read news articles until I understand them (know all the facts) such as the recent Bong Hits 4 Jesus case [Marsh v. Frederick], and V.P. Cheney's job description [executive branch or Senate].

***

In this Conlaw review course for students who experienced frustration with the subject earlier, I think it important to assume that since they sat through the subject for a year in class with another professor and read the cases, or most of them, they must understand a great deal.  So the goal is not to review all of the cases from the year course in a few weeks, an impossible task, but to study how to study Conlaw, by identifying key elements such as the division of government power (called structure of government) vs. individual rights.  Each can overcome the other.  We look at the experience and note where the lines are drawn, for this illustrates the competing powers vs. rights and the limits on each.

We discussed confidence.  I told a war story of a courtroom experience where a judge authorized me to enter a plea of guilty in absentia for a client but a week later when I tried to do so he said he would not accept the plea despite the written and signed waiver of appearance.  I stood my ground and finally when the DA announced that during the plea bargaining he had assured me that if the court had any problem he would state that his office had no objection; whereupon the judge fidgeted and allowed the procedure to go forward as he had earlier assured me it could.

Lawyers need to know the law sufficiently to know when they should stand their ground, especially to authority figures like the mannequin in the black nightie.  Just don't overplay your hand.  Make your assertions politely, civilly, and withdraw gracefully when you cannot prevail.

An attorney friend called the court to say he'd be late, tomorrow, he was going to be handling another matter in different department.  This is routine practice at the Hall of Justice.  The judge told him he had to be in her court at 9:00 a.m. 

But I have to be in another department, my friend insisted. 

You have to be here, the rookie judge replied as she hung up the phone.  My friend said as he hung up his phone, "What an asshole..." 

Pretty soon he got a call from the clerk telling him the judge wanted to know tomorrow why he shouldn't be held in contempt. 

So he called me. 

I scratched around and found some law that said he couldn't be thrown in jail, as he feared. 

Next morning I appeared in court with him and sat in the back of the audience to await further developments. 

There were none. 

The judge thought better of it. 

Not a word was said. 

The case was called and handled in the usual manner. 

Why? 

My guess is that the judge spoke to another judge who told her to calm down.

Calling judges assholes is an example of showing too much confidence. 

There's a happy medium.

***
I didn't cite that example in class.

***

We discussed an outline I put on the board listing Conlaw elements, which we discussed, including:

• Governmental power v. Rights of:  Individuals, other governmental units such as states and branches of the federal government.
• Rights acting as limitations against power and other rights.  Conlaw is where rights and powers meet to conflict.  Someone has to sort them out according to the plan of our Constitution.  After Marbury, that somebody is the Court.
• power v. power
• power v. rights
• power meeting limits
• limits overcome by power
• This is the stuff of Conlaw and is what you have to write about in an exam which fairly raises such questions, which they often do.
• Then there are the individual rights, sometimes called civil rights as opposed to military rights, as even the criminal law is based on civil rights broadly defined.
• EP, DP, FA, and the other rights in the Bill of Rights as well as the text of the Constitution.  The guaranty that if you want a government office you may not be required to belong to a certain religion (called a Test Oath, testing whether you can swear that you believe in X religion, not Y) appears in the main body, not the Bill of Rights.
• We reviewed the different flavors of Due Process:
• • Procedural (PDP):  Notice and a fair hearing, essentially, before a neutral tribunal, ha.
  • Substantive (SDP):  meaning the rights contained in the portmanteau word 'liberty' of which you cannot be deprived without due process of law and only then when the deprivation is narrowly tailored to fit a compelling governmental interest, which usually means something that the government fears so much that it is willing to deprive you of your right to live the way you choose, instead of the way it, or the neighbors, working through government, chooses for you.  These rights to choose include your right
    • To marry the person of your choice regardless or race, religion, ethnicity, gender, sexual orientation...
    • To define who is a legitimate member of your own family for housing purposes;  Moore v. City of East Cleveland.
    • To send your child to parochial school
    • To send your child to foreign language school
    • To raise your child according to the tenets of your faith culture:  Yoder v. Wisconsin
    • To choose whether to abort or become a mother
    • To control your own uterus
    • And so many more
  • Economic substantive due process (E$DP):  Ordinary social and economic reform legislation will not be reviewed for its wisdom by the Court as this was done during the Lochner era (1905-1937) and put the Court into trouble (FDR's failed Court packing plan).
  • • Carolene Products case, Footnote 4:  The court announces it has given up acting as a superlegislature (reviewing the wisdom of legislative acts in economic and social areas, but will continue to protect 'discrete and insular minorities,' which cannot protect themselves, and will protect the textual guarantees, and will protect against political shenanigans which disenfranchise groups.  The Court will always look to see whether the governmental unit in question has the power it has purported to exercise, just as in Marbury, in Youngstown, and Chadha, to pick a few leading examples.
    • Ordinary legislation receives low scrutiny; it just has not to be crazy, only minimally rational.  No, I don't know how the death penalty survives the rational basis test, as crazy as it is, the penalty, not the test.  If a rational legislature could believe the legislation was reasonable, it passes this constitutional test of validity.  Not so for intermediate scrutiny and strict scrutiny where the statute almost always falls, except in the Japanese Internment cases.
  • Equal Protection:  refers to unfair legislative or executive classifications; all statutes classify to some extent, but this is good.  We want the penal code to operate on all lawbreakers, not just white or black.  We want the tax laws to do the same.  It's when a statute or government policy singles out one race over another for special treatment that protests arise that must be dealt with under the Equal Protection guarantee, assuming the groups are otherwise similarly situated.  The new case, Parents v. Seattle, is a good example.  It reinterprets Brown v. Board (1954).
  • • Did that case promise integrated schools or school assignments regardless of race?  The case was won and lost over that distinction.  If Brown promised integrated schools, you can assign students by race.  If Brown promised no racial criteria may be used in assigning students to schools, then school quota plans may not be used.  See Gratz, Grutter v. U. Michigan, and Bakke.  The U. Mich. cases pick up on the tie-breaking vote of Justice Lewis Powell in Bakke that diversity is a value allowing some use of race so long as no quotas are involved.  Justice Kennedy in Parents v. Seattle, the tie-breaking vote, said something similar.
    • • The liberal wing wanted to allow some use of race
      • The conservative wing disliked any use of race, considering it a form of reverse racial discrimination, a cure as bad as the disease.
      • Justice Kennedy broke the tie, disagreeing with the reasoning of the conservatives, but voting with them in deciding the case.  This decision was issued in the days following our fourth class.  We need to study it, meaning you have to read the 104 pp. opinion.
  • As I recall, we discussed the two Brentwood cases.
  • Ahmad gave us NYT v. Sullivan.
  • I reviewed Fletcher v. Peck to illustrate that not all outrageous governmental behavior amounts to a constitutional violation, or at least one having a conlaw remedy.  There the Georgia legislature sold off half of the Yazoo, the territory comprising today's states of Alabama and Mississippi, to land speculating companies.  The corrupted legislature had been bought with gold.  The land company sold the land to you and me and the man in the tree.  Then the scandal broke.  The rascals in the legislature were thrown out and a new group of too-new-to-be-bought legislators came in.  They passed a law canceling the earlier, crooked sale.  Could they do that?  No, said John Marshall, CJ.  The horse is out of the barn and cannot be recovered.  The buyers keep the land.  Georgia is out the money it could have made had the crooks not sold the land for peanuts, in return for bribe money.  The only recourse for the people is to be careful who they elect and to elect someone else to replace them when they turn out to be crooks. 
    
    • I used this example to warn against being drawn in by red-herrings drawn across the Conlaw trail:  layering on in an essay question obvious wrondgoing and asking the student what, if any, is the Conlaw violation?  There may be none.  Criminal and tort law violationis and breaches of contract don't necessarily add up to violations of constitutional law, even if done by governement actors.  You have to ask what power was exercised and whether the governmental unit that exercised it had the right to exercise that power.
      
      • Did the Georgia legislature have the power to sell land owned by the state?  You bet it did.  The sweetheart deal was corrupt but not unconstitutional.  Got it?  Great.
    • Please let me know whether discussed any other case, even in passing.
    • Please let me see how you are taking notes, if you'd like.
    • The big problem in any law class, and especially Conlaw, is that the students haven't usually developed any confidence in their writing. 
    • You need to practice writing on Conlaw subjects, such as I do on my blog.  It keeps the wheels oiled, and the oil fresh, like a well-tuned engine. 
    • I know, this means time and work.  But how else are you going to develop the confidence to stand in front of that judge and not let him push you, and worse, your client, around unfairly?
  • I distributed a twelve page outline essay entitled "SYSTEMATIC ANALYSIS OF CONLAW QUESTIONS" which appeared on Sheridan Conlaw (this blog) on June 24, 2007.  If you didn't receive a copy you may copy and paste it from the screen to your word processor and print it out, or see me next class, but please read it. 
  • This is my work in teaching. 
  • Have you done anything similar in coming up to speed? 
  • If you haven't, then work off mine. 
  • That's what it's for.
  • You're welcome.

See you for Class-5 after we skip a Tuesday because of the Fourth of July holiday.

Have a good one.

I'll be away for a few days; no B-W this Saturday.