Welcome to Sheridan_Con-law, a blog supporting Bob Sheridan's class in Constitutional Law at San Francisco Law School (SFLS). This blog is a privately owned and maintained personal site. It is not in any way connected with SFLS. Comment or complain to me, not them or it. All mistakes are typos. Ignore 'em.
The purpose of this blog is to allow me to communicate with students on matters related to the subject of the course, which is broad, and to encourage them to communicate with me and each other by posting queries and comments, and other contributions in response.
THE PERIPATETIC SCHOOL
Among the good things we try to do in this class is to walk. I like to walk and I enjoy company. I'll post on the board in class, and here, the details of the next Walk'n'talk. SFLS students are invited to join. Typically we walk along the promenade adjacent to Crissy Field, next to San Francisco Bay, toward Fort Point which is under the Golden Gate Bridge (GGB). We meet and start out from the parking lot next to the St. Francis Yacht Club (SFYC). This is located at the northern end of the Marina Green near the weekend volleyball area. The Presidio, now part of the Golden Gate National Recreation Area, begins here. Sometimes we may walk in the other direction, or choose a different starting location. I plan to put the details here, as well.
Last week, from the SFYC parking lot, seven of us met and extended the walk to go over the GGB to the Sailor's Memorial at park near the north end and back, a total distance of about five miles. Future walks are likely to be shorter. A lot shorter.
IT'S ALL AROUND YOU
In keeping with the notion that Constitutional Law is all around you, and that you'll notice it once you become aware of this, and this will help you deal with applying the principles you learn in a class such as this, we pay attention to con-law related subjects, such as the orange harbor pilot boat on the Bay (See Cooley v. Philadelphia Port of Wardens, over the power struggle between federal and local control over the channels of commerce, where a compromise was reached as to the power to regulate, given local variables in such things as harbors).
As we walked along, we encountered a group of runners, all wearing blue T-shirts bearing an anti-Bush logo in this presidential election season. "Vote while you still have the constitutional right!" one of them shouted, which drew a laugh from our little group of constitutional scholars. As stated, con-law is all around us, and the blue-clad runners made my point, and my day.
Of perhaps closer personal interest, we were passed by a group of young Filipino runners, lovely-looking young ladies, clad in red T-shirts bearing a "Manilatown" logo. We colonized the Philippines. My wife was born there of a mixed heritage that included Filipinos, Spanish colonists, American imperialists, and European adventurers.
"We gotta have T-shirts," one of our walkers said, and that's our next project, designing a logo.
THE PHILIPPINES
Speaking of the Philippines, our next walk is likely to take us through Fort Mason, San Francisco, above the Army embarkation piers. In addition to being the piers where American servicemen embarked for combat in the Pacific during World War II, the piers were where U.S. troops left to try to control the Philippines after we stripped the islands from Spain and kept them, instead of handing them over to the Filipinos, who fought us for their independence for years. See what we call the Philippine Insurrection.
THE INSULAR CASES
The Con-law cases that came out of this experience are called the Insular Cases. An attorney in Washington, D.C. has, or had, a web-site devoted to this bit of Con-law arcana that may come more into play as we stash enemy combatants in the war on terrorism on foreign soil we control, such as Guantanamo.
The way the issue of the Insular Cases has come up, which is whether the population of territories we control is entitled to the enjoyment of our constitutional civil rights protections, is that an activity will take place, such as business activity, or criminal activity. The U.S. will exert taxing, or punishment authority. The person subject to the authority will claim that the U.S. Constitution has followed the U.S. Flag to provide protection. In short, the foreign person will claim the U.S. has acted unconstitutionally. The Filipino charged with committing a criminal act, such as a murder, will demand a jury trial under the Sixth Amendment of the U.S. Constitution.
Does the Constitution follow the flag?
According to Finley Peter Dunne's fictional bartender, Mr. Dooley, speaking to his patron Mr. Hennesy at the turn of the last century, "I dunno whether the Constitution follows the flag, but I do know the Supreme Court follows the iliction returns."
Theodore Roosevelt's Secretary of War, Elihu Root, an excellent lawyer and New York University Law School graduate, offered that the Constitution follows the flag, all right, but it never quite seems to catch up.
These more or less quotes are from Warren Zimmerman's "The First Great Challenge," an account of the U.S. under McKinley and Theodore Roosevelt embarking onto the world stage by acquiring colonies following the 1898 war against Spain. In addition to the Philippines, those included Puerto Rico and control over Cuba under the Platt Amendment. Fidel Castro's father opposed the U.S. control over Cuba. It's all around us, Con-law, history, etc.
Incidentally, lest we forget, there's a LEGAL principle of constitutional law that comes out of these cases. You'll never guess what it is. It's called the incorporation theory. It goes something like this.
In the beginning, the framers knew that the U.S. would add states. We owned a lot of land. The whole Northwest Territory. Not the one in the Pacific Northwest, which came later, but in the Great Lakes Northwest. As in the Northwest Ordinance. Slavery was forbidden there in the Ordinance. New states would be admitted with all of the rights of the original thirteen. Plus there was lots of land west of Georgia, called the Yazoo Territory, of Fletcher v. Peck fame. The Yazoo became Mississippi and Alabama. And west of Virginia. Like West Virginia, Tennessee, and Kentucky. And then Jefferson acquired the Louisiana Territory from which we made a scad of new states. But first it was just a territory.
And then we picked up the southwest from Mexico, after a little war around 1845. And California, let's not forget us.
Alaska, purchased from Russia. When? 1865?
Hawaii,
And then, in 1898, the Philippines and Puerto Rico. What were these?
They weren't states. So the Constitution didn't apply. Not fully, anyway. They hadn't been sufficiently incorporated into the body politic. They could be administered, but they didn't have full rights of participation. They could be pawns, not players. That's what Root was talking about when he said the Constitution was following the flag, but not quite catching up. Not fully incorporated, not by a long shot.
Will this have anything to do with whether our federal courts may impose their jurisdiction on Guantanamo? Who rules in Gtmo? Us or them, the Cubans? See the perpetual lease we imposed. It looks like us. I don't see why the judicial power isn't commensurate with the assertion of the executive and legislative power. Seems to me that if we colonize the Moon or Mars by act of Congress, we'd better have the judicial power around to keep things straight, don't you? Otherwise what do we have, the legislature and executive departments running amok, a word we acquired from the Philippines, incidentally. It's all around us, you can't get away from it, this conlaw business.
As William Faulkner observed, "The past isn't dead. It isn't even past."
Wait'll we get to the future!
IT'S BACKWARDS
Incidentally, I think we teach Con-law backwards. We fill a casebook with all the leading cases, read the never-to-be-repeated facts, and try to figure out what the grand principle is, to reward ourselves, and arm ourselves, so in case some other, unrelated, not-even-vaguely-similar situation arises, we can recognize that this principle, if we've accurately described and stated it in the first place, can be pulled from our quiver of Con-law arrows for use against a new enemy.
To change the metaphor (Con-law is heavy on the metaphors) we now view the situation through a different lens. We have a lens case full of lenses. Peer through the wrong lens and you see a blur. Peer through the equal protection lens, or the due process lense, and you might achieve clarity. It all depends on what the Court has said previously, or the Framers, or our history and tradition, the better parts, that is. We have some bad parts we don't want to bring back.
HISTORY
We might better teach Con-law by combining it with a history course, although I've been accused of doing exactly that.
You need to know there was a Labor Movement, a Civil Rights movement, a Women's Suffrage Movement, Slavery, Jim Crow, Child Labor, Twelve-hour work days in factories and mines for children, and women, no workers compensation for injuries, no job safety regulation or enforcement, no minimum wage, no social security, no old age and survivors pensions.
Agitation against such conditions and in favor of reform legislation was seen as socialistic, communistic, and those who were active in such movements seen as criminal conspirators whose heads were regularly broken open.
Unions were criminal conspiracies, to plant owners. It took decades to make progress against economic, social, and political group that wielded effective control of the country as against immigrant masses of minority groups of Irish, Jews, Italians, and Slavs. And those were just a part. Chinese, Japanese, and Filipinos had few if any rights early in the last century. Blacks were first enslaved and then, under the Black Codes, all-but. White supremacy and Jim Crow, were the operative rules for decades. See Plessy v. Ferguson, (1896), in which the Court bows to the prevailing prejudice. Ask whether government may bow to popular prejudice today. See Palmore v. Sidotti, in the casebook.
Not only did newcomers struggle against entrenched power, they struggled against each other. Race, ethnicity, creed, and newness, all were seized upon to put down the newcomer. Our constitutional law grew out of these struggles. The Court typically reflected the prejudices of the powerful interests that put the justices in their seats of power in the first place.
How could they rise above their milieu, their time, their place, their class?
Does a fish see the water in which it swims?
Do we see the air we breathe?
It's hard to step back, and out of our milieu.
Yet we ask our justices to do just that. Sometimes, it seems, they seem able to do so, other times not. See Brown v. Board (1954).
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DAVID L. FAIGMAN, HASTINGS
David L. Faigman has authored a new book entitled "Laboratory of Justice, The Supreme Court's 200-Year Struggle to Integrate Science and the Law." (Times Books, Henry Holt & Co., N.Y., 2004). His thesis, judging from the title, seems to be that the Court was actually trying to integrate science and the law. That was news to me. I've never thought that this was what the Court was trying to do. I think the justices were applying what they thought they knew, and this might include such science as they'd come across in passing as undergraduates. I never saw the Court as a laboratory for trying out new ideas. More like a cauldron for melting together old ideas. Anything but an experimental laboratory.
At any rate, Faigman, a law professor at Hastings, has written a description of the Court from the beginning to now all in support of his idea that it is a bad idea for the court to do what it has always done, which is to put their (the justices) heads together and agree on some operative facts in order to see whether they can decide a case while not breaking a lot of china. As Faigman observes, the activity of the Court is more art than science, but he'd prefer more science.
What particularly disturbs Faigman is that the justices are free to draw their factual examples, on which they hang their doctrine, from thin air. The normal legal process provides a forum in which each side struggles to sell its version of the facts. The jury, or judge renders a decision on the facts, accepting some, and rejecting the other competing set. No facts are admitted into evidence in court unless ruled admissible by the court, especially some forms of hearsay.
This doesn't happen in the Supreme Court. Here, all sorts of hearsay, tables, data, articles, newpaper clippings, opinions, etc. come in without objection in the form of briefs submitted by amicus curiae contributors, who are interested non-parties with an axe to grind. The case no longer belongs to the litigants but to the onlookers. And the outcome is often strongly influenced by the onlookers. After all, the decision is going to affect more than the parties, so why not allow kibitzers into the game? That's a little different than the ordinary trial which affects only the parties. Kibitzers, seen as officious intermeddlers, are barred. We never see 'friends of the court' down at the Hall of Justice.
The Court sometimes defers to legislatures when it comes to lawmaking. But sometimes the court looks behind the newly enacted law to see what data the legislature used to base it on. "Not enough," the Court might say (VAWA, U.S. v. Morrison), "anecdotal" (Lopez?) and strike the law as unconstitutional, beyond Congress's power. The New States Rights or New Federalism, this is called. A power contest between the Court and Congress to see which will have the last say, the final say, sovereignty.
How is it that the Court can challenge the factual determinations of Congress, Faigman asks. Who looks to see how the Court makes its factual determinations. He interviews three justices, Stevens, O'Connor, and Breyer. Somehow, their views seem more of the "Do as I say," variety, "and not as I do," when it comes to the question of making factual determinations. "We need to be free to roam to practice our art," they seem to be saying. "You stick to the rules of evidence and we'll be okay." Okay.
Faigman's effort struck me as being a very long run-up to a very short thesis. He thought it was necessary to go to the trouble and that's his choice. I'm not sure the descriptions of the remote cases were necessary to make the point as to the modern situation, but once you get started describing something in Con-law, there is a tendency to keep going backwards into what seems an almost infinite regress, such as I may be doing now. Fortunately the nation is only a couple of centuries old or Faigman's work might be a lot longer. A better title might be, "All you'll ever need to know to really understand Con-law."
Having had my fun with that, I'd like to say this. Faigman has done a wonderful job of recounting the cases he relies on, which just happen to be the leading cases of Con-law generally. He gives masterful descriptions of the cases, the justices, the causes, the history, and the competing schools of legal thought, from legal formalism to legal realism that have plagued, or enlightened, from judicial activism and its opposite, judicial restraint, in short, the development of the law as we know it today.
My suggestion is to skip the main thesis, pace Faigman, and nourish yourself, as I did, on his excellent scholarship. There's a law school education in Faigman's presentation of the many controversies and the resultant law. This is the way Con-law should be taught, in my opinion. Anyone reading "Laboratory of Justice" will have put his Con-law education on a very sound footing indeed. Nicely readable, too.
THEN consider Faigman's quarrel with the way the Court cherry-picks its facts from the competing mass of mixed law and fact submitted to it. Some people's facts are facts and some are political views. You pays yer money and you takes yer chances when you mix it up with the Supreme Court and no one, especially the law professors, is very good at predicting outcomes, especially in the close games, 5:4.
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As I say, walking and talking makes for a nice way to bring the subject from the class to the ground. Blogging about it might help, too.
A student asked where the power to grant foreign aid come from. It isn't specifically enumerated in the list of Seventeen plus Necessary and Proper clauses set forth in Art. I, Sec. 8 of the Constitution. So it must be implied from one or more. If you look up "foreign aid constitutionality" using the Google search engine, you might find what I did, an article on the subject listing a whole bunch of sources of the power the grant foreign aid. The president has some authority in this regard, and so does Congress. Sometimes they have to work together. The president proposes, and the Congress appropriates, or doesn't, as the case may be.
I've got one for you. Whence the power of President Abraham Lincoln to free the slaves?
See the Emancipation Proclamation, available on the Web.
Okay, so much for the first day of the new blog. Let's see what happens next.
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