Con-Law is an odd subject.
We take the most unlikely or most mundane fact-situations and read into it grand principles.
On the unlikely to recur, there's the fact situation in the most famous case in Con-Law, Marbury v. Madison. Outgoing President John Adams nominates a bunch of midnight judges by signing a bunch of commissions of appointment. He's outgoing because he lost the election of 1800 to Thomas Jefferson. Adams was a Federalist (akin to today's Republicans in attitude) while Jefferrson was what today we'd probably call a Democrat in attitude, only then was called officially a Republican, short for Democratt-Republican. I know, it can seem confusing with the name changes, but that's the way things twisted and turned in the naming department over the centuries.
The point is that the two parties were oil and water, hating and distrusting each other, just as today in Washington, where the Democrats and Republicans don't talk to each other on certain matters, such as Social Security.
Adams's Secretary of State, a man named John Marshall, forgets or doesn't quite get around to delivering a few of the commissions, including William Marbury's. The commissions were for Justice of the Peace of the newly established federal District of Columbia. As a result of a deal between Jefferson and Hamilton (another Federalist) the location of the "seat of government," to use the term in the Constitution for the nation's capital, is Washington, D.C. Originally, in 1789, when the first Congress and Supreme Court were sworn in, the capital it had been New York City (lower Manhattan), but then it moved to Philadelphia.
Several cities wanted the honor, and increased revenue, of being the capital, and it became a north v. south issue. Jefferson wanted the capital located in the South.
But Hamilton wanted something more, as first Secretary of the Treasury. He wanted the new federal government to pick up and pay the war debts incurred by the thirteen states in winning the fight against the British.
Hamilton knew he could figure out a way to pay off the national war debt and take a load off the states, which couldn't pay.
The advantage to the new central government was that by honoring the debt not only of the Continental Congress but the states, the national credit would be good on the world market in London, Paris, Amsterdam, etc. Paris and Amsterdam were where the money was borrowed to pay for the war. If we wanted to borrow again, we had to get serious about paying off the old war debt. Meanwhile we were broke and not in a good position to borrow more.
So Hamilton and Jefferson, according to the story, sat down for dinner one evening in New York and carved out a deal over the roast beef and wine. That's why Washington D.C. is our political capitol and New York and Philadelphia aren't. .
Marbury later sues over the failure to deliver his commission, perhaps because Adams has meanwhile appointed John Marshall as the Chief Justice of the United States and is now in a position to set matters right, since it was his fault that the commission wasn't delivered in the first place. Marshall owes Marbury, big time.
Only Marshall has both bigger fish to fry and a bigger problem than the fact that he's disappointed William Marbury, a fellow-Federalist whom he would otherwise like to see appointed to the federal judiciary, other things being equal. But other things weren't equal.
Marshall knows he could order the new Secretary of State, James Madison, whom Jefferson has appointed to replace Marshall, to deliver the silly commission.
What do you think would happen then?
Marshall is Jefferson's cousin, once or twice removed and they hate each other. Marshall, who wintered at Valley Forge with Washington and fought hard in battle, thought Jefferson was a wuss. Jefferson, as governor of Virginia during the Revolution, fled Richmond in terror when the British approached, without even putting up a defense. The two were, as their parties, oil and water.
Is Jefferson going to honor any order by Marshall's Court to make the likes of Marbury, who belongs to Marshall's defeated party, not Jefferson's victorious party, a judge in the new district? Not very likely. Perhaps the word has even filtered out, Washington being Washington even then, that even if Marbury wins his battle, the case, he loses the war, the judgeship.
What's Marshall going to do now?
He's got to make Marbury lose, alas, but without Marshall or the Court losing face.
How likely is a situation like this going to come up again?
Why bother to worry about such a convoluted set of facts that seems so dependent on personalities and political attitudes of a day long gone by?
This situation is NEVER going to come up again. All the players are history, literally, as well as figuratively.
Yet out of it comes the biggest principle of Constitutional Law ever.
Even though Marshall no doubt could've figured out a way to find for or against Marbury using standard statutory interpretation of the governing Judiciary Act of 1787, according to various scholars of the ins-and-outs of that statute, that's not what he did.
It had been well-known, or at least assumed, before during and after the adoption of the Constitution, that the violation of its provisions would be unconstitutional and thus null-and-void. But there had never been a case. It was 1803 and other courts had mentioned this principle, but the U.S. Supreme Court had never used it to strike down an Act of Congress. As principles go, the doctrine of unconstitutionality, meaning "this act of government is null and void," was more good political theory than good constitutional law.
Marshall seized on this political theory, some say just a bit too eagerly, to turn political theory into Constitutional law. He handed the victory to Jefferson and his Democrat-Republicans. He disappointed Marbury yet again. So who won the case? Jefferson? Jefferson didn't know what happened. For the longest time he thought he'd won.
In reality the big winner on this play was the Court.
Marshall had taken over a power that makes the Supreme Court supreme over both the Congress and the President and all the Executive agencies that hold power acting under the president.
Marshall had grabbed hold of first, of the power to declare their acts unconstitutional, while they are powerless to declare the Courts acts unconstitutional, except by going through the nearly impossible formal process of amending the Constitution as provided in the text.
This is a very big power. It accounts for all of the Constitutional law cases that the Court decides and that we study. This is because a constitutional law case, by definition, is one that raises the question whether an act of government is constitutional. Yes or no. That's the only question in Con-Law. You could decide by flipping a coin.
But then you'd have to give a reason.
It's those reasons that we spend so much of our time studying.
It's one thing to know how a case came out. That's just a stupid fact that anyone could know.
Decisions are announced on radio, TV, and in the newspapers whenever the Court issues them.
The guy on the bus knows as much as about which way the case came out as distinguished constitutional law professor Laurence Tribe, author of the leading, encyclopedic text on Con-Law, on the day the decision is announced.
What Tribe knows that the guy on the bus usually doesn't is the reasoning that the Court used to reach its nation-binding decision.
Plus Tribe knows how to use that reasoning in some other situation that may come up.
Tribe has it all over the guy on the bus who doesn't know this.
***
Sometimes its hard to figure out, or to understand, or to put into the right words, what we think the principle is in a Con-Law case.
Students presenting the facts of the case to the class will refer to the principle of the case as "it." When they do that, I interrupt and ask what "it" is. Now the student is stuck, in front of the class. We all know that the student has some idea that there's a principle in this mix of words, and that the Court has used it to decide the case, and thus if we are able to articulate this principle, we've got the case nailed. But she struggles for the words. As I wait and the pressure grows. So she stumbles around a bit and comes out with something close, when I might nudge her in a direction by suggesting a word which I think will trigger her proposing an addition in her own words.
After the student has gone through this little drama in full view of the class, with anxious hearts all around, as the other students are also trying to articulate, mentally, the principle of the case, we all feel we've done something, such as achieve a legal breakthrough of sorts.
***
At the end of the last class, a student was presenting a case called Roth vs. the U. of Wisconsin (1972). Roth had been hired, during the Vietnam War year of 1968, as a political science professor at the U. of Wisconsin. He began speaking out against the war. He had a one-year contract. The university decided not to rehire him for the next school year. His contract was not renewed. Not only that, but the university gave him no reason why he was now out of a job.
Roth received no hearing by which he could find out why he wasn't getting his job back. He had rent to pay, perhaps a car payment, and perhaps his wife was pregnant with their first child (if he had a wife), and now he's lost his job.
So he sued.
He claimed that he was fired for exercising his First Amendment right to speak out on public issues, such as the Vietnam War.
He also claimed that he should have been given a hearing into why he was fired.
He claimed that the school should at least have been required to tell him why he was, in effect fired. Was that so much, being told why?
Having been given no reason for the firing, it could've been the case that he WAS fired for speaking out against the controversial war that divided a nation.
Yet, the Supreme Court shot him down on both counts.
Now he'll never know why he was canned and it could've been because he was outspoken, just exercising his rights.
***
In class we discussed the relevant legal doctrines that come out of this case.
We do this by reading the case, or at least the relevant portions. The authors of our Cohen and Varat Casebook have done an excellent job of excising the not-so-relevant portions so we can get through most of the book in a year. It's over 1,600 pages long as it is, and it is tough going if you have to read a lot of cases every week, along with the cases from your other courses, as we do.
This makes it easy to read the case and miss the point. It's sort of like watching the movie but forgetting what the main themes are.
What was the point of Schindler's List, for example? Or Million Dollar Baby?
So you have to dig and study and put some principle you think motivated the Court into words, otherwise its a blur and you learned nothing usable again, in a different context.
You see each tree, but miss the forest. My job is to encourage recognizing the theme of each tree, movie, or case, and noting where in the forest it stands. Then the students have been armed with an idea that should exist clearly in their head and is usable elsewhere.
That's the goal, at least.
***
Thinking about this reminds me of an incident when I was in the seventh grade at PS 29 in Staten Island, New York. Rita Gilligan was the science teacher and she held up one of those dispensers where you press the plunger and out comes the Windex to clean your window.
What is making the liquid in the container come out, she asked.
None of us knew, but several of us wanted to try to answer.
"Vacuum," I said. I had some idea in mind that by pressing the plunger here you raised the pressure of something there and out came the liquid, like magic. Ms. Gilligan wasn't looking for magic, in that science class, that particular day.
No matter how many times I said 'vacuum' the teacher wasn't satisfied with a one-word answer to a serious question that required a reasoned explanation, not a label. I found this frustrating, of course, which is why I remember it. I remember the frustration, and the principle that where an explanation is required, a one-word label isn't going to explain anything.
A student in my class was asked a question by the latter day Ms. Gilligan in which I asked a question having to do with where a certain power came from that we were discussing. The student was having trouble piecing together the correct answer, which took more than one step.
"Congress?" she answered.
"You've given me a one-word answer that isn't going to do the trick," I replied, but you're definitely in the ballpark. Can you flesh it out with an explanation, please?"
She did. Not with ease, but with the usual Con-Law struggle. Which is the point of it all. By going through the hard work of thinking and then articulating, you make an idea your own. Now it belongs to you and you can use it elsewhere, out of the context of the fact situation that introduced you to it in the first place, such as Prof. Roth's case, or William Marbury's. Because you may never see those fact situations again, certainly not Marbury's. Perhaps if you practice labor law or contract law you'll see the termination-without-explanaton case come up.
***
So I asked the student presenting Roth if he could now please tell us the principle of Roth that we want to remember. We're studying Procedural Due Process. Amendments Five and Fourteen provide that you may not be deprived of life, liberty, or property without due process of law. When it comes to one of those three little items, this usually means you are entitled to some kind of a fair hearing. This is what the prisoners at Guantanamo were arguing for, some sort of a fair hearing into whether they really were "enemy combatants," as the government claims, or not. Prof. Roth didn't even get an explanation, much less a hearing. The prisoners at Guantanamo have been ordered by the Supreme Court to be given a fair hearing.
Wasn't Roth entitled to a hearing?
Wasn't he protected by due process of law guarantee?
Apparently not.
But why?
This is the whole point of reading, studying, and discussing the Roth case, to find out something about the meaning of due process and what, exactly it protects, and what it does not protect. Prof. Roth fell outside the foul lines of the due process ball field. We need to know the difference between fair and foul when it comes to due process.
Since the final bell rang on my question, the student asked if he could come up with his answer next week. Sure. But then the student said he couldn't attend class next week. Why not email an answer, I suggested, just a thumbnail of what we want to remember about the Rule of Roth to help us remember what is important about that case so that we can use it in other situations.
***
In teaching procedural due process, I used two examples to illustrate what we were dealing with.
Let's say I get on a city bus and hand the driver, a government agent, my bus transfer, which he rejects because he says it has expired. I have either to pay another fare or leave the bus.
Do I get a due process hearing?
I just had it. The bus driver inspected the transfer and ruled against me. I have no right to a further hearing or appeal. Otherwise we'd have no bus system.
What about when a police officer arrests you, do you have a right to a hearing?
As to what?
When?
You have the right to be brought before a magistrate within a reasonable time to be told what you are charged with and asked whether you can afford to hire your own attorney or would you like to try to qualify for the public defender. If you're arrested on a Friday, you may show up in court on Monday or Tuesday.
Don't you get a trial? Sure, if you really want one. But that may be months or years in the future while your attorney works on your case.
That's a long time for a hearing. But many prisoners, and their attorneys, do not want to go anywhere a hearing that decides the ultimate issue of guilt or innocence. Because their ship is going down. The client will be found guilty. Meanwhile the client is earning credit for time served against what may be an inevitable jail sentence. The prosecutor may not be anxious to engage in a trial either. His witness may have been drunk or drugged, or going sideways by not wishing to testify, etc.
So the hearing right in some cases, civil and criminal, may be theoretically valuable but actually inconvenient. Threatened hearings are great for pressuring both sides to get real and give up posturing for clients and public. The fact of the matter is that some 95% of criminal cases settle without a trial because of this pressure to dispose via plea bargain.
The civil courts could never try all the cases filed, nor is there any reason to do so. That's why judges so frequently act as settlement negotiators in chambers before the parties are ever allowed to tie up a courtroom for weeks at a time at great expense and inconvenience to so many concerned.
***
Suppose a guy is serving a sentence of life in prison and because he mouthed off at a guard he's sent from his usual cell, where he may have books and a radio, to an isolation cell where he has nothing for 30 days until he cools off and learns to control his temper. Is he entitled to a due process hearing? Before whom?
That's a fairly routine situation that comes up in prison. Does due process protect the prisoner's life, liberty or property in this situation?
Which is it? Liberty or property?
What kind of a hearing?
***
I'm hoping to see that thumbnail concerning Roth by next Thursday.
