WHO'S ON FIRST
Constitutional Law as a subject of study presents law students with a bit of a challenge that seems quite different from the other law courses: torts, contracts, criminal, evidence, etc. In these subject areas, the principles one learns from the cases and class discussion come up repeatedly in a similar factual context. There's typically an accident in the negligence torts. Always the disappointment of a broken promise when studying the doctrine of consideration in contracts. And always a detention by police in a voluntariness of confessions case criminal law (which also implicates constitutional law, I know).
But Constitutional law seems typically to involve fact situations not likely to repeat themselves any time soon, if ever. Plus it seems vague, amorphous, and too dependent on history and context. Law students seem to want definiteness and certainty, just as prisoners do who are about to decide whether to roll the dice and go to trial or to cop to the deal offered by the DA.
One in the hand, or two in the bush. 95% opt for a better deal, rather than roll the dice.
The William Marburys of the world are only going to be denied the midnight delivery of their federal Justice of the Peace commissions in the District of Columbia, or any place else, for that matter, once. See Marbury v. Madison (1803).
How many times will the president try to take over an entire industry, as HST did with steel during the Korean War, 1953?
From very tight, fact specific, situations, we are supposed to draw a principle that is usable elsewhere, in an entirely different, apparently, fact situation.
The word "apparently" is the weasel word here, because while the new factual context seems so totally different in its specifics from the old, where the principle was so recognized that it becomes, or should become, authoritative precedent, there is going to be some fact in the new that is substantially the same as in the old.
President Harry S Truman (HST), who took over the steel mill in the Youngstown Sheet Steel case in defiance of a Congressional refusal to pass legislation allowing a government take-over of a plant in order to cool off a labor dispute, did so on the claim that his general powers as president, including as Commander-in-Chief, war-making power, and inherent power as president to direct the success of the nation allowed him to do this.
President George W. Bush, in yet another undeclared war, on terrorism after 9-11, this time armed with the Patriot Act passed by Congress after 9-11, decreed the detention, incommunicado, in Guantanamo, of citizen and non-citizen alike, captured on or near the battlefield in Afghanistan hundreds of prisoners, holding them indefinitely, for the duration of hostilities, at his pleasure, essentially, that is until he feels like letting them go. No access to any court, no hearing, no evidence, no attorney, no family or friend.
What possible connection could there be between the two fact situations?
In each, the president is claiming the right to exercise a power of his office. In the first, in derogation of a Congressional refusal to grant this power (when the Taft-Hartley 'slave-labor' bill came up in 1947, the power to take over industry to quell strikes was proposed but voted down.
In the second, Congress granted the president expanded powers under the Patriot Act.
The Supreme Court denied that President Truman had the power to take over the privately owned steel mills for as long as he likes.
The Supreme Court denied that President George W. Bush had the power to take over people and throw away the key for as long as he likes.
In Youngstown, HST was said to have been governing by decree, assuming legislative powers reserved to the Congress.
In Hamdi, GWB was said to have violated principles of Due Process going back to Magna Carta. Labeling a presumed enemy as an 'enemy combatant' for the purpose of indefinite detention in isolation, and subjecting him to harsh questioning for intelligence purposes, without allowing some kind of a hearing before a neutral body in which the government has to lay its cards on the table and allow the prisoner the right to say, but that's wrong, is a violation of civilized standards of justice, even those applying to war, undeclared war, at least.
Law students, and law professors, have more than a little difficulty in first envisioning the applicable principle and then expressing it in a way to make it relevant to the new context under discussion.
In both Youngstown and Hamdi, the principle has to do with the extent of the president's power of office under the Constitution, which created the office as well as the powers of the national government.
Different scholars and lawyers will express the principle differently. To newcomers to the game, it may even seem that the principles expressed are different principles, and I guess they are, to some extent.
But a law student needs one single principle, the one-line version, to cram into his head for future reference. He can worry about the variations later, when trying to apply it to the new context that comes up either on an examination or perhaps years later in real life.
"What was that case, you know, that principle limiting the president's powers even during war-time? Truman? Steel seizure? Unconstitutional? Why? I forget why. All I remember was that the Court made him return the plant to the owner and he did. There must've been a reason. Let me see whether I can remember what it was.
I wonder whether that would apply to President Bush and his detentions in Guantanamo.
After all they're both exercising presidential power, alleged presidential power, that is, on the basis of claimed "national emergency."
Is that enough to allow a president to do that?
Is the president above the law?
To save the country, can't he do anything he deems necessary, sort of like a king or a god?
Wouldn't we forgive him if he did something he wasn't supposed to do to block another attack like the ones on the World Trade Center and Pentagon and maybe the White House on 9-11?
Surely the Constitution doesn't mean we have all to die first, and litigate constitutionality later when we might not even have a Supreme Court, or even a population, in the event of a successful nuclear attack.
Let's not carry this Constitutional Law too far!
As they say, the Constitution is not a suicide pact."
That's sort of how it works, I think.
We take these cases that stand for some kind of a principle and see how close it can be made to fit the new context. Maybe the fit isn't perfect. There's a new wrinkle here or there. But with a little stretching, the old principle might be made to cover the new bare spot.
That's how Constitutional Law works.
It is nevertheless challenging to conjure up the principle and then stretch it to fit.
To help students avoid getting lost in procedural thickets (thicket, a wonderful Con-Law word, used by Frankfurter in Coleman to warn against entering 'political thickets,' and, happily, disregarded, as the thickets didn't prove to be quite so thick), I encourage them to simplify the briefing to answer the following questions, not necessarily in the order listed:
- Who is fighting whom?
- Over what?
- Who won?
- How come?
- How do you think the attorney for the appellant decided there was an opening in constitutional law sufficient to provide a chance at winning? I.e, to take the case up?
- Now that we know the outcome, how do we express the principle so it becomes available to us to use in the future in a seemingly, at least at first glance, completely different factual context? We need the one-line version for ease of recall. The one-size fits all version. We can do the custom tailoring to fit later, when we see the new facts.
Any student who can address these to a reasonable approximation of correctness is doing a really good job of briefing a case.
Let me give an example of one of my favorite cases in the Cohen & Varat Constitutional Law casebook. I'm using it for the third year in a row and appreciate Hastings' Conlawprof Vik Amar for endorsing it (after pointing out that he would be contributing to it in future). There's a logical progression of cases, all nicely truncated, tailored to focus on the point under study in that progression.
The decision that I admire is Palmore v. Sidoti (1984) 466 U.S. 429, appearing at p. 695 in the casebook. I call it the "Marry a Black and Lose Your Baby Case," not to be confused with the "Judicial Kidnap" case of Michael H. and Gerald D. (1989) 491 US 110.
It's important to hang memorable labels on cases, otherwise, how will you call them up? Put handles on 'em.
In Palmore, a white couple in Florida divorce, with Mom retaining physical custody of the little daughter. Mom remarries, this time to a black man.
Daddy sues to rescue his daughter from this situation. She will be mocked in school, he fears, when the other kids learn she has a black step-father living in the same household. Probably not an unreasonable fear to anticipate. The local Florida Family Court judge, who knows his or her people better than I, agrees, and orders a change in custody.
Mom takes the case all the way to the Supreme Court which sides with her.
Why?
Most simply put, or as simple as I can put it, anyway, the principle of the Palmore case is that while we know that prejudice exists, government may not bow to it.
Wow!
That's a big principle, don't you think?
Is that issue going to come up again?
Where?
In what context?
When Lawrence v. Texas (2003) was pending before the Court, and the issue was whether the Texas anti-sodomy for homosexuals criminal law was being challenged as to constitutionality, I read a most interesting brief.
It was the Constitutional Law Professors' Brief, and you can find it on-line using Findlaw. I passed it around to my class. I wanted them to see what a good brief looked like. I wanted them to see how the professors used the Palmore case to support their point that the statute was unconstitutional.
First the Constitutional Law professors laid out their quailifications, their interest, and then their views. They had all studied and taught Constitutional Law for a long time and were familiar with the literature related to the case they wanted to see overruled, Bowers v. Hardwick (1986) which had upheld a similar law.
Bowers had been severely criticized by some. Gays regarded it as their Dred Scott (1857), opinion, which had declared blacks to be sub-human essentially, and possessing no right that a white man had to respect.
Slaves, or former slaves, and blacks in general , weren't citizens, said the Southern Court, and thus were unable to sue in federal court on Diversity of Citizenship grounds. They were just slaves, which, oh, by the way, was legal.
Blacks were not even second-class citizens; they were non-citizens.
A bad decision all the way around. But, I'm told, excellent property law, provided you deem human beings to be property.
I have a friend, a very well-known criminal defense lawyer, who walked out of his Property Law class at Hastings a generation ago when the professor asked a hypothetical question that began, as they usually do, with a big "Suppose...."
"Suppose that you owned a slave and you took him out of state..."
My friend the law student took umbrage at the question.
The professor probably had innocent intent, for that was the situation in Dred Scott. An unhappy formulation by the professor, I suspect. I wasn't there.
People wonder why I respectfully decline to permit my classes to be tape recorded.
Either I may come out with an unhappy formulation, not by design, or students will start skipping classes thinking they can have a friend record what went on.
I'd be talking to a forest of tape-recorders who couldn't answer hypotheticals, happy or not.
Dred Scott is never cited for any legal proposition, I understand.
The Court's gravest "self-inflicted wound," it's been called.
Gays were being treated as second class citizens, or worse.
The expressive act which defined their being had been declared by legislatures to be criminal.
The act was either criminal because it was immoral or dangerous, or the legislation was the expression of popular prejudice, long-standing, wide-spread, and barely questioned by most people. Kind of the way you'd find that slavery was tolerated by most people if you were living then.
The 38 Conlawprofs who contributed the brief in Lawrence cited Palmore for the proposition that the Court had announced as a proposition of Constitutional Law that government may not bow down to popular prejudice, and that's all the Texas anti-sodomy law for homosexuals (it was legal for straight couples to perform the same act) was, an expression of popular prejudice.
The neighbors, acting through their legislature, were telling you to whom you may relate and how.
But government may not bow down to popular prejudice, after Palmore, right?
The Texas law should fall, shouldn't it?
That's what the Court said, in Lawrence.
The Texas law is a denial of liberty. You control your private life, not the neighbors, and not your government.
MYOB.
MYOFB!
That's what we can tell government.
That, friends, is how we try to make sense of reading Constitutional Law, in my class, at least.
You are free to say that my views on whether Lawrence or even Dred Scott are quite wrong. Disagree with the Court all you like. Overrule Brown v. Board (1954), if you like.
But this is a way of remembering what a case stands for.
If you have a better way, kindly let me in on it. I'd like to know.
One final point on the question of competing Constitutional Law Principles:
We all realize, I suppose, that people and government live in tension with one another. Too much power in government and we have tyranny. Not enough power win government, but too much power with people, and we risk anarchy.
Where is the happy medium?
We don't know.
We make it up as we go along.
It's why we write things down.
So we remember what didn't work the last time we tried a crazy scheme like that, Norton. Said Jackie Gleason on the Honeymooners, which I'm sorry you missed.
For every principle of Constitutional Law, it seems, there is an equal and opposite principle to counter act it from going too far.
A sort of Newton's, make that Sheridan's, Constitutional Law of Inertia.
Newton has his laws, and I have mine.
Do you like that?
I made it up.
I wonder how true it is.
We're going to have to test it, I guess.
If we see any apples falling up, why, we'll just have to make an ad hoc exception, won't we.
That's okay.
That's what scientists do all the time.
Until their rule is disposed of by more research.
This is my starting point anyway.
Let me know where you find the holes.
Here's an example of "Sheridan's Constitutional Law of Inertia," copyright pending.
Individual have a constitutional right of free expression.
What is the equal and opposite principle to that?
Government has the constitutional power and duty to protect the nation when under attack, or in war-time.
During such times may government legitimately infringe on individual liberties such as free speech and press?
During war, are rights suspended? The maxim inter arma silent leges ("The laws are silent in time of war.") seems to apply. See Rehnquist, W. H. All the Laws But One, Civil Liberties in Wartime, Vintage/Random House, 1998.
What happens when two seemingly equal and opposite legal principles collide?
The same thing that happens when two teams collide at the World Series or Super-Bowl.
Usually there's a blowout.
One side wind and the other loses.
Wait until next year.
There will be a rematch someday.
That's why we study Constitutional Law.
To be ready for the rematch...
How do we get ready for the rematch?
The same way New Yorkers advise visitors how to get to Carnegie Hall.
"Practice, practice, practice."
That's why I write like this, incidentally.
It's a way of practicing.
Keeps the principles alive with me.
Give it a try and see what it does for you, apart from taking up a lot of time.