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.