Sheridan: Con-Law

FEDERALISM, COMMERCE, CON'T.

Federalist-84 is the blog handle of a perceptive and helpful young lawyer in LA who's put up a very nice site ( here ) featuring his interest in the current topic of the power struggle between the states and the federal government, federalism, in a word. You can find the citations to the new leading cases, such as Maxwell and McCoy, and others, there.

The odd thing about this power struggle is that if there were a real tug of war occurring between the states and the federal government one might expect to read all sorts of news items from the front, such as the states promoting bills in Congress to get Congress off their backs. But you don't see that, or at least I haven't and I've been cognizant of the issue for some time now.

What I do see is the Supreme Court tugging on the other side of the rope from Congress. The Supreme Court is leading this struggle on behalf of the states, but the states don't seem to have asked them to do this. The effort appears the least bit gratuitous, as though the Court is telling the states "We know what's best for you."

The states are happy for such assistance as they can get, I suppose, and continue to defend on grounds of sovereign immunity when able, assured that this seemingly moribund 11th Amendment doctrine remains alive and well before the Rehnquist wing of the Court.

In the VAWA case (U.S. v. Morrison, 2000), Congress spent four years, conducted numerous hearings, and let the states know it wanted to pass a law to protect women against violence. Congress was making this a national problem. Traditionally only the states passed laws prohibiting harming women, such as through their criminal and family law. Was this okay with the states? Thirty-eight state attorneys-general made submissions stating 'be-my-guest, this problem is beyond our ability to deal with it, see whether you can.' The states weren't squawking that they were being deprived of their power or dignity.

The Supreme Court declared the Congressional Violence Against Women Act (VAWA) unconstitutional as depriving states of their reserved power under the 10th Amendment, to their probable surprise. The Supreme Court was protecting the states against federal usurpation that the states apparently didn't mind. I don't imagine they said thank you. Rehnquist and Co., said never mind, this medicine is good for you. I dunno, maybe it is. Power for the states, no justice for the women.

When it comes to power vs. justice, if power wins, justice takes a back seat to legitimacy. Legitimacy comes before justice. All you need is standing to get in the door. And a justiciable issue. So, in analyzing prospects for winning in the Supreme Court on any issue, one might profitably begin by asking whether these items exist::

1. Is the issue justiciable?
2. Does the plaintiff have standing to assert the issue?
3. Did the government branch whose act is to be challenged have the power to do that act, such as enact legislation or issue a rule or order? Because if it didn't, it's illegitimate and unconstitutional.
4. On the equities of the case, will the Court be siding with justice for the plaintiffs and those like him or her across the country if it rules in their favor on the merits?

If the Court short circuits the lawsuit on grounds of 1, 2, or 3, it doesn't reach the merits. It's decided on legitimacy grounds, not on the merits. Plaintiffs want a decision in their favor on the merits. Items 1,2,&3 are the routes to plaintiff's disappointment.

The defense can win on any one of the above four grounds, while the plaintiff must win on all four to win at all. Tough, getting into the Supreme Court and winning. Lots of obstacles.

Let's see, if millions of cases are occurring in courts all across the country, and 8,000 parties petition to have their matter reviewed in the Supreme Court annually, and the Court only accepts 80 case for full-blown decision per year, those are poor odds for threatening to take your case all the way to the Supreme Court. Yet there are those who do. Michael Newdow was one of the intrepid ones. Still at it, I've read, too. Good luck, but don't count your chickens.

What the Supreme Court is looking for before it will grasp large social issues by the horns and try to wrestle them to the ground, is "consensus." If there's a consensus of the people who count in this country that it's time for a certain practice or policy to bite the dust, then the Court is able to wrestle that animal to the ground, since it's already dying. That was apparently the case when the Warren Court struck down Jim Crow in public school education in 1954 in Brown.

Once the principle was established there, it didn't take a great deal of imagination to extend the principle to other areas. What it took was incredible tenacity in the face of great and determined opposition. But the dragon was bleeding and could no longer stand. The Court had seized the bare minimum consensus that then existed and taught that the dragon must be slain. Gradually people began to see that it wasn't worth trying to prop up a dying dragon. Moreover, the more thoughtful ones realized it was wrong even to try.

There's a death penalty case before the Court this term where the question is whether it is constitutional to execute youthful killers. The last time the issue reached the Court Justice O'Conner said it was, that there was no consensus in the nation to the contrary, but that someday that might change. Years have now gone by and this term we'll find out whether the Court sees a consensus in the fact that many states have in the meantime outlawed the death penalty for minors. Maybe someday has arrived. Expect at least three dissents either way.

FEDERALISM, COMMERCE CLAUSE

Law students study Constitutional Law, Con-law for short.

They read about the Commerce Clause. Maybe they're not interested in commerce. Maybe they want to do criminal law. So why do they have to study the Commerce Clause in Con-law class. There's lots of cases and they take a long time to read and re-read so you understand what they are telling you.

They're not telling the student about commerce so much as they are of power. Whose power? Congress's usually, although it might be the power of the state legislature or governor. We read cases about railroads, they're in interstate commerce, right? They cross state lines all day long going back and forth across the country. And trucks. Same story. And cows. Cows? I thought they lived on farms. They do, but, see, the farmer buys them from herds in other states quite often, at livestock auctions and state fairs. And the milk, that's sold to the local milk cooperative and put into big tanker trucks (those trucks again, that roll down the highways) or railroad tanker cars (railroad tracks crossing the country, again), and sold outside the state where the cow was milked. So cows are in interstated commerce just like the milk, butter and cheese they produce, with the farmer's help of course. Farmers, it turns out are in interstate commerce, even when shoveling out the barn. Imagine that.

Now the farmer knew that his local county and state rules governed him on the farm. But did he know that the long arm of Uncle Sam, the Congress, and the President, were all looking over his shoulder as he shoveled out the barn out in the boonies of farm country? He might not love it, but he knows. Farmers go to school, too. And there's always the local county agent, who both teaches and reports back to HQ in Washington, D.C. So the farmer know what he has to do.

So why do law students who want to practice law in the big city for corporations or businesses or landlords and tenants or husbands and wives or criminal defendants have to read about cows, trucks, and railroads. Isn't that a little off the point?

It's not about cows, trucks and railways. It's about power.

Here's how it works. I put it down here because I explain it in class, and sometimes it goes in one ear and out the other. The student doesn't realize how much he or she (I usually drop the "or she" on the ground it's the fault of the English language, not me, for not having a good word that covers all genders. "It" doesn't quite cut it for me.) really knows.

When the Framers, the Founding Fathers, set up the country the way the did, the allocated power. That's what it was all about. The American Revolution was about cutting King George III's power over us, the 13 Colonies, and setting up our own new government without any damn kings. The republican principle, this is called. Pro- the people, con- any monarchs. We were all republicans, small 'r,' then. If you wanted to really tick off your political opponent you accused him of being secretly pro-monarch. Jefferson did that a lot to Hamilton and Adams and it really bugged them. They did want a central government that had power enough to do the job, but they didn't really want any monarchs back in power any more than Jefferson and his pal Madison did.

What the Framers did was to call a convention of delegates from the 13 former colonies, now called states, once having overthrown the king, to set up this new government, which they did in the summer of 1787 in Philadelphia. You can visit the rooms where they did this if you go there. Make sure to get the admission tickets a few blocks away at the visitor center first, though, otherwise you'll waste a lot of time on line. Don't ask how I know this. You won't find it in any lawbook, my son, Rick, and I can tell you.

And when the Thirteen set up the new One, a good number of the delegates didn't want the One to be too powerful. The states were where the action was, and that's how many of them wanted to keep it.

So they figured, "Let's just give the new central government just enough power to do the job, and we'll hold onto the rest."

Let it run the army and navy, if we should need those, but not much else. We had no navy after the British sailed away. We hated "standing armies" based on the unwelcome treatment received at the hands of the British troops in Boston. You can see this reflected in the Constitution where it says that Congress shall have the power to create a navy if it wants, but as to armies, if it creates an army (it didn't, for a long time) the army's budget has to come up every two years for review, but not the navy's. Navies didn't quarter themselves in your upstairs bedroom next to your daughter's room.

The power to coin money, that was handed over to the national government. Every state had been printing money and it was worthless.

Commerce. What about commerce? That was handed over also. Congress was given the power to regulate commerce with foreign nations, among the states and with the Indian tribes. Trading with the Indians was made a matter of national, not state concern. Otherwise we might have thirteen different policies regulating trading alcohol and muskets to Indian tribes. That might not work.

In class the other night a student presented a summary of a case (Seminole v. Florida) where Congress passed a law requiring the states to negotiate in good faith with Indian tribes that wanted to open gaming casinos on their reservations within the states. The case came up when a state didn't negotiate at all, much less in good faith, so the tribe sued the state, based on the authoritiy of the statute.

I had just read the Commerce Clause (Art. I, Sec. 8, Cl. 3) to the class. Foreign, interstate, and Indian commerce. Congress. Power to regulate. Handed over by the original thirteen states. Got it? Good.

I asked the student, "Where does Congress get the authority to pass a law that tells a state it must negotiate in good faith with an Indian tribe?" The student was stuck. They all seemed stuck. There's nothing in the Constitution about 'negotiating in good faith.'

"I just gave you the answer not five minutes ago," I said. "You forgot. Already. Wow.

"The Indian Commerce clause," I suggested, and we got past that. The students had the knowledge, the information. They just hadn't collated it for the first time, that is, put it together with a factual situation. After this exchange, they'll remember. That's the way studying law is. We put stuff into compartments and then forget we put it there. We need to be reminded. That's what exams are for, and studying for them. We loosen up the synapses that way.

In the early days of the country, a question arose about this Commerce power given by the states to the national government, Congress. Did the states give it all, or did they hold some back? How would you know? It doesn't say in the Constitution. All it says is that Congress shall have the power. So they fought over that for years. What happened if something needed regulation but Congress hadn't regulated in that area yet? Could the states fill in the gap by passing laws themselves? Yes, to a limited extent, under their police powers. This was the big holdback.

The thirteen original states not only held back the police power, but they passed an amendment stating that any power they hadn't already handed over was being held in reserve by the people and the states. Kind of a dual holdback, as though they might not have been sure where residual rights resided, with the states or the people who, in democratic theory, have power over the states.

The police power consists of regulations promoting health, safety, welfare and morals. Did you know that the federal government doesn't have that power? At least not as granted in the main grant of powers, Art. I, Sec. 8. There you'll find a list of 18 powers, 1-17 plus the capper. That's the one that says Congress shall have the power to make all laws "necessary and proper" to carry out the first seventeen plus any other power found in the Constitution. They argued over how broad that power was, too. McCulloch v. Maryland, (1819). Plenty broad was the answer, not narrow. If Congress has the power to achieve a goal, it has the power to establish the means. Seems pretty simple, looking back on it from this distance, but that was a big deal back then. Opponents of a strong national government feared it might become too strong, and reduce state power. States rights were important to preserve, according to these opponents, of whom Thomas Jefferson was the leader, along with, surprisingly, Madison, the leading architect for the national structure. You might think the people who set up the United States would like it to grow and become powerful. Just the opposite. They were afraid that if the national government became powerful enough to tell the states what to do, some of those northern states might start agitating to put an end to slavery. In that case, some of the southern states were prepared for a divorce from the union, called secession, which they actually did, later.

As time went by, a compromise of sorts was reached, such that while it was expected that the federal government would regulate as to national issues, the states were allowed to regulate as to local issues, provided there was no conflict. Philadelphia (as the subdivision of a state) was thus allowed to require ships approaching the port to hire a local pilot to avoid the shoals, etc. That was Cooley, the Harbor Pilots case, 1851, and accounts for why I have a link to the Sandy Hook Pilots of New York elsewhere.

But this is tday. Haven't we ironed out what power Congress has vis-a-vis the states by now? Nope. We're still arguing over it each time Congress tries to regulate in some new area hoping to correct some new problem. It's still the states vs. Congress, and the states rights issue (called the new states rights or the new federalism) is still a big issue.

This conflict between Congress, or the federal government and the states has a name. Federalism.

Every year the Supreme Court seems to take up a case or two on federalism. It keeps trying to draw the line, case by case. It becomes sort of like playing follow the dots, each case representing a dot. The picture seems a little fuzzy, making it hard to predict on which side of the state-federal line the next dot is going to land. When the decision comes out 5:4, you can understand why it was so hard, in advance, to guess the outcome, no matter how much Con-law you thought you might know.

Why keep fighting this same battle repeatedly? Same battle, in different contexts? Well, we do seem still to have the states on the one hand and the national government, called the United States of America, to give it its proper name, on the other. And as long as we're set up that way in the Constitution, maybe we shouldn't ignore it. But the country has grown so since the days of John Marshall, who defined the structure of government so much, in the sense that he fleshed out the bare words with useful theory. Why shouldn't the national government exercise broad power? Should we fear putting the states out of business?

Does that seem realistic? The states have an awful lot of power that they didn't hand over. All that police power over health, safety, welfare and morals. Take a look at all the state codes the next time you're in a law library (Not all lawyers buy walls of books, since they're now online.)and notice all the subject areas covered by state law. The federal government would never be able to pay attention to all those local concerns. Not without creating a lot of departments that would look suspiciciously like states. I think the states will remain in business for the foreseeable future, unless I'm badly mistaken, but that's just a wild guess, I admit.

What happens when the Supreme Court tells Congress it doesn't have the power to pass legislation in certain areas? It represents a "narrowing of the nation's power," to use the words of John Noonan, a law professor and senior judge of the U.S. 9th Circuit Court of Appeals, in his bood by that name (U.C. Press, 2002). He doesn't see why states have to be treated with kid gloves when it comes to Congress having the power to order states how to behave in areas where Congress was given the power to make law, such as regarding commerce with the Indian tribes, and interstate and foreign commerce generally.

If the Court doesn't grasp the limits of the Commerce Power to tell Congress to pull in its horns, it resorts to some other doctrine. During the Depression it was the Non-Delegation Duty. If Congress set up an administrative agency without being specific enough as to what powers Congress granted the agency, the Court was apt to tell Congress it over-granted power, handing legislative power over to an executive agency, a violation of separation of powers among the three branches, legislative, executive, and judicial.

Today it is more likely that the Court will protect the states on the basis of the Eleventh Amendment, which has been held to prohibit a state from being sued without its consent on the basis of something called sovereign immunity. That's what King George III, enjoyed, and I thought we got rid of him, courtesy of George Washington, his troops, and the French Navy under Admiral DeGrasse at Chesapeake Bay at the time of the battle of Yorktown and Gen. Cornwallis.

I don't see the states wearing little crowns, so I don't know why they're un-suable. States live in the courts. All the criminal prosecutions are lawsuits brought in the name of the People of the State. It's hard to see how a state is stripped of its dignity by sending its lawyer into court to argue a case. State lawyers are there anyway.

One argument that struck me, that I don't have an answer for, was made by the federal judge in the recent Maxwell case where he declared unconstitutional an act of Congress for to possess child pornography. We can all agree child pornography is bad and should be against the law. The only question is whether the states should pass such laws or Congress. If the porn is carried across state lines, I can see Congress regulating (prohibiting) it criminally. But suppose, as in the Maxwell, case, a guy downloaded some porn onto his hard drive for his own private viewing and his old lady, fed up with him, called the feds who prosecuted him. Was Congress within its powers to pass laws making it a crime to possess porn on a disk on one's own home. Under the Commerce Clause? How did the man corrupt interstate commerce? Did he substantially affect it? Was Congress regulating the channels or instrumentalities of interstate or foreign commerce? It's hard to see the hard disk in question to be an instrumentality or channel of commerce, either.

The lower court federal judge held that the Commerce Power wasn't quite so broad or extensive to reach the man's personal computer in his home, even if it was manufactured outside of state. Too local. Not national.

This is legitimate, pointed out the judge, because we have this dual system of government, state and federal, and the state serves as a check on the federal, to preven federal overreaching. So THAT'S why we have federalism problems, because the states are part of our system of checks and balances. Okay. It's just that I'd been used to thinking of checks and balances in a different way. I'd thought that the federal government had been established in three division, like the leaves on a three-leaf clover, legislative, executive, and judicial, so that each could serve as a check on the other. That's what the Supreme Court does when it tells the president or Congress thay can't do that, like throw people in jail indefinitely in Guantanamo without a lawyer, a hearing, or access to court, as in the Hamdi case. It violates Magna Carta, er...ah, excuse, me, Due Process. You'd think someone in the White House would've read Magna ..., I mean the Constitution. We needed the Supreme Court to tell the White House and Congress (which passed the Patriot Act that authorized the president) this? Liberty? Procedural due process? The Barons at Runnymede? You and I could've told them. They must've panicked and dropped the Constitution for fear of Osama Bin Laden. With the Constitution we're nearly impervious; without it we probably don't need to be saved, we'd be too far gone already.

In Con-law class, when it comes to struggles over the structure of government, the fight is always over which branch of government has the power or whether the branch that had it overreached at the expense of another part of government. If the three parts of the federal government are in a tug-of-war over power we call that a fight over issues of "Separation of Powers." As mentioned, when the fight is between the federal and state governments, it's called a fight over an issue of "Federalism."

LEGITIMACY

'Legitimacy' would be the more precise idea to use in evaluating whether a court has the power to entertain a particular kind of lawsuit or party or subject matter. Trying a divorce case in Small Claims Court would be illegitimate. More broadly speaking, this would make the resulting decision 'unjust' on power grounds regardless of the merits.

To avoid confusion, one might view the matter of Supreme Court jurisdiction as a fight over legitimacy before one gets to argue the merits of the case. Before we get to the question of whether we can invoke the Court's power, we also have to be concerned as to whether the party bringing the action has standing, and then whether the issue is justiciable.

So, if we're talking power, 'legitimacy' might be the better word choice, while if we're talking merits, we're more likely talking more about fairness, equity, and justice in the usual sense.

Prerequisite to the exercise of the power of judicial review is standing and justiciability. Add them all together (standing, justiciability and power) and then you are free to argue the merits. One of the deficiencies counsel sometimes exhibit in arguing to the Supreme Court is a tendency to argue the merits as an inducement to find standing, justiciability or power.

The tendency might be excusable when one anticipates that some or several of the justices might be seeking to deny these prerequisites out of concern over having to decide on the merits, which Justice Marshall, in Marbury, referred to as an unsought duty, "this bitter cup," in other words. Maybe he had his tongue in his cheek.

POWER

The caption "Power not Justice" comes from an idea I call attention to in class when trying to figure out the meaning of cases, i.e. the legal principle they stand for when properly understood.

A case will start out as a seemingly simple question of basic fairness. President Adams signed a commission appointing William Marbury to a federal job as justice of the peace in Washington, D.C., but the fella' who was supposed to deliver the commission (I hate to mention his name for obvious reasons, but his initials are John Marshall, Secretary of State, who later becomes Chief Justice of the United States and passes on his own little ovesight) forgets to deliver it in the press of business on the last day that Adams remains president.

So Marbury sues to compel delivery of his commission, in the Supreme Court, presided over by Marshall.

Marshall, as Chief Justice, speaking for the Supreme Court of the United States, says, "Yeah, it seems you've got a very good case, here Mr. Marbury, and if it was up to me, I'd order my successor in the Exectutive branch, the Secretary of State, James Madison, whom you are suing, to deliver your commission, just as you request. You're a good man and you deserve it.

There's only one little problem. You filed your lawsuit in the wrong court.

Well, not exactly; I know that the First Congress, in 1789, as one of their first acts, enacted the Judiciary Act of 1789, setting up all the federal courts below ours. But it seems that Congress has made a little mistake, on which you, unfortunately, relied. (Interesting, isn't it, that some of the Framers of the Constitution later, as Congressmen, passed an unconstitutional act? Didn't they KNOW?)

Their Act says you can bring your suit here, before us, right here in the U.S. Supreme Court. But the Constitution says something different. It says that only certain classes of people, such as Ambassadors and Public Ministers, and States themselves, may file a lawsuit first in our court. For everyone else, we can only review APPEALS, and you, Mr. Marbury, aren't appealing. You filed your lawsuit here FIRST, which means you're not asking us to review your matter on appeal. You're asking us to try your case as though we were a trial court. We don't think the Constitution authorizes us to do that. Sorry.

So, President Thomas Jefferson, who instructed his Secretary of State, Madison not to deliver your commission, is going to win this case, sad to say and shame on him. Because we're saying that Congress overstepped its bounds when it wrote that statute. And since the boundary Congress crossed is the Constitution, which is superior to ordinary legislation, the law on which you rely to bring your lawsuit is unconstitutional. It's void. Feel free to start your action anew in a lower court if you wish [Marbury apparently didn't].

Hey! What happened to justice? I thought courts were supposed to do justice. Where's the fairness of the U.S. Supreme Court denying Marbury relief from the wrong he suffered. If the signed commission were only delivered, he'd have his job. Now he doesn't. Marbury was wronged. He wuz robbed!

Right. But the question of right and wrong turns out to be a red-herring in this case. If you focus on that, i.e. the merits, you miss the point of the case. In a lot of Con-law cases a sense of right and wrong is what motivates the bringing of the lawsuit in the first place. But then the issue shifts to something else entirely.

Most of us have no problem underestanding that you have to bring your lawsuit in the proper court, a court that has the power, i.e. is authorized, to hear that kind of suit. You wouldn't expect to obtain a divorce in Traffic Court. Divorces are reserved to Family Court. We have rules. They're supposed to be respected. So if a court doesn't have the power, it doesn't have the power. That's all Marshall was saying as to the merits. Congress was purporting to authorize the Supreme Court to act as a trial court when the Constitution set it up as an appellate court exept for a few dignitaries of whom Mr. Marbury was not one.

The issue was power, not justice. Is that unjust? Not really. Often we challenge the authority of a part of government, such as a court or the legislature or the executive to perform some act. We don't think it unjust to ask, "Hey, wait a sec! What make you think you have the authority to do that? Don't we have a Constitution? And doesn't the Constitution say, in letter or spirit, that what's really supposed to happen is something different, and what you're doing violates that? I think what you're doing is unconstitutional. And if it's unconstitutional, what you're doing is void. And I think that is just. Just as just, in fact, as what you think you're trying to do to me. And so forth.

Before we jump to the merits, we have to look at the underpinnings, the foundational bases that authorize the enabling legislation or the executive's authority. We have to ask "Is this Constitutional?" Meaning, often, is the legislation supporting it (the act) Constitutional? [Watch out for those wild-card words like "it," and "this" or "that." They conceal what you're really trying to talk about, and pretty soon you get lost in the wild.]

So this is where the saying, "It's about power, not justice," comes from. More accurately, it should read, "It's about power, not the merits," because as I've just argued it's not unjust to argue whether a power exists. Maybe I'll change it. Some other day.

It just seems to appear as a surprise when reading a Con-law case and the fight over the merits makes you salivate for a decision on the merits, hoping to see justice prevail on the merits, only to learn that one side wins not on the merits or the equities, but on something that seems somewhat of a technicality, a procedural technicality, such as a principle of constitutional law. One man's technicality is another's constitutional law.

FDR, for example, was trying to save the country from the Depression during the Thirties, only the legislation he promoted kept being struck down by the Court as being somehow in violation of the Constitution. New Deal reform legislation was viewed as violating the rights of manufacturing plant-owners, their liberty rights, to behave as they pleased in setting wages, hours, conditions, etc. Congress, in passing such legislation, was seen as delegating too much unfettered "legislative" discretion to the new Alphabet-soup agencies set up to police industry.

When a case is lost on procedural grounds it is as dead as if it had been lost on the merits. The merits failed to prevail because the Court never reached them. Maybe that's what the Court had in mind, anyway. Maybe the Court ducked the issue.

In the recent Newdow "Under God" case, which unsettled a lot of people who wanted those words included or excluded from the Pledge, the issue on the merits was never reached. The Court found a Con-law ground (standing, and not just any kind of standing, but a newly coined "prudential" standing; the Court had to invent something new in order to punt) to avoid deciding an issue they wouldn't have been thanked for deciding no matter which way they ruled.

If the justices found for Newdow, they'd have been wrong politically. If they found against him they'd have been wrong legally. Time to punt. Come back to it when there's national consensus one way or the other. Don't expect consensus any time soon, although you may see Mr. Newdow knocking on the door of the Court again. Don't expect to see it opened very readily.

Con-law is the practice of looking into the Nation's foundations, its electrical, plumbing, communications and other systems. Before you get to enjoy living upstairs in the home, the systems have to be checked. Sometimes, as Marbury and Newdow learned, the foundation has become, or may become, leaky and needs to be patched.

The Supreme Court is in the business of maintaining and repairing leaks in the foundation, when necessary. It's not always necessary. Sometimes the requested repair is likely to cost more and do more damage to edifice and the folks living upstairs than provide a lasting benefit. Let's leave bad enough alone, the Court sometimes seems to say.

Because when the Court barges in where angels fear to tread, where there's no consensus in the Nation, what happens? Dred Scott is the big example of throwing kerosene on the fire, justifying slavery, and exploding shortly into a huge Civil War.

Peaceful evolution is better than violent revolution, I suppose, in most cases. Were I living in 1776 I'd like to think I'd be a revolutionary, wouldn't you? Peace-loving folks that we are these days, we might've been Tories. What do you think of that?

Suppose you were a slave? Violent revolution would be okay, then, right? If only you could pull it off. But you can't. You're a slave. You can't read. You can't write. You have no money. You can't organize. You're patrolled, policed, and beaten. You have people you don't want to jeopardize, like family and friends. You're stuck. You remain a slave, just as those millions did, in our own Holocaust, the other one, after the Indians.

How come, I wonder, we have, in our nation's capital, a museum commemorating and teaching the lessons of the Holocaust committed by Germany. And last week an American Indian Museum opened on the Mall in Washington, D.C. Where's our national museum to slavery, Jim Crow, and racism in general? Don't we have any lessons to learn? Maybe it's too soon. Maybe we'd be embarrassed. Maybe we'd have to do something about it. Maybe it would cost a lot of money. Maybe we shouldn't lift that rock. Maybe I'm looking in the wrong place. Maybe it's in Berlin!

As you can see, the study of Con-law can be thought provoking...

Seeya.

WELCOME

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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