Constitutional - Friedman - Spring 2008


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Constitutional Law Outline METHODS OF INTERPRETATION ã Original Intent:  (Of those who wrote it) o Burkian: dead guys put a lot of thought into it, or stability?  Tension: Rule from the grave v. stability o Social Contract: We’ve agreed to live under these rules, so we have to understand what they mean, beginning with what they say.  Intentionalism: In K formation, the original intent of the parties is what matters.  Dead Hand v. Stability ã Original Understanding: The New Trend—what it was
  Constitutional Law Outline METHODS OF INTERPRETATION ã Original Intent :  (Of those who wrote it) o Burkian : dead guys put a lot of thought into it, or stability?  Tension: Rule from the grave v. stability o Social Contract : We’ve agreed to live under these rules, so we have tounderstand what they mean, beginning with what they say.  Intentionalism: In K formation, the srcinal intent of the parties iswhat matters.  Dead Hand v. Stability ã Original Understanding: The New Trend—what it was understood to mean atthe time by the average guy on the street. ã Original Application: Intention with regards to certain issues o e.g. at time of 14 th Amendment’s passing they also established segregatedschools ã Textualism: o More specific the more we adhere? Age for President—OK.  But “   however malleable a word or phrase is depends partly on howit was written but also partly on how much it matters; we can seetext as flexible under pressure, even if it was not meant to be thatway.” ã Consensus: We didn’t agree to live under the text of the constitution, but we didagree to live under the values and spirit of it. ã Post-Ratification History: Things have changed, so must Constitution to remainrelevant.Judges should interpret?1)Judges Unelected: Democracy Problem2)Framers didn’t sign on to much: “Give me DemocraticGovernment Room to Make Decisions.”Thoughts:1)Argument that Constitution shouldn’t change. But for practical Purposes,that’s impossible.2)There’s a constitutional way to alter the constitution, but it’s seldom invoked3)Markers that we have for judicial decisionsa.Perhaps it’s not the best thing for the constitution to change if the judges have guns to their heads? b.But is it OK for the constitution to change because judges change?c.Is it OK for constitution to change because public views change?i.“People have an uncanny way of saying that what they wantright now is what the constitution permits.”1  FEDERALISM--  National Problem that MUST require     a national solution: --Not enough to say “it’s a national problem…”Early Ideas of What to do About Unconstitutional Legislation/Congress—Executive Three ways to look at formation of Republic:1)States did it as sovereigns (“Compact Theory”—rejected)2)People did it within states (Where else would they, asks Marshall?)3)All the people came together as a whole and did it ã Kentucky Resolution: Constitution Created by States and therefore statesindividually can say, “Unconstitutional.” o After roaring 1820’s, states started to defy courts ã Hayne: Any law that the states think is unconstitutional, then they can stopit/nullify it—John Calhoun thought that after one state nullifies, then congresscould pass another Amendment clarifying the situation, which could then beaccepted by two-thirds of the states.  Terribly inefficient , perhaps impossibly so—recipe for morass ã Haynes : Let Supreme Court work it out—reference supremacy clause; or else it’scripplingly inefficient at best and anarchy at worse Traditional Black Letter on Commerce Clause: --Commerce is not just buying and selling, it’s all trade between states (  Philly v. NJ; Ogden v. Gibbons )--Commerce Clause is Plenary--Even if it is not directly commerce, congress can regulate as long as it’s“necessary and proper” to effectuate needs of Commerce (Note that McCulloch says that“N&P” clause augment the enumerated powers but doesn’t provide it’s own power;Scalia in  Raich argues that it enhanced the combined force of the powers).--Regulation can’t be pretextual.   --Congress can regulate channels of interstate commerce (   Champion, Katzenbach ), instrumentalities (  Hearts of Atlanta ), and anything else that has a“substantial effect,” (  NLRB ) either direct or indirect (    Darby ), in whole or in the aggregate( Wickard  ). Caveot: must be of an economic nature (    Lopez  ).--Channels: “ Certain stuff cannot go through the pipes at all: drugs, lotterytickets, transportation of individuals for commercial sex .”--Instrumentalities: buses, trucks, hotels --Substantial effects test in  Lopez  : non-economic, congress made no findings, nonexus next to guns in statute (so if it said only guns for interstate congress, then it might be OK)What is economic? --MAKE AN ARGUMENT--Partial birth is econimc? Is it commercial or not, a paid for thing or not?--Not clear where economic/non-economic line is drawn. Maybe norational basis test for economic? Maybe if in aggregate it affects economic?-- Deference for rational basis , as highlighted by Souter’s dissent in  Lopez  and by Clark’s opinion in  Katzenbach .-- Cannot commandeer machinery of the states (  New York; Printz  ), but courtsmust obey federal courts (Supremacy Clause)2  McCulloch v. Maryland -Maryland taxes (almost out of existence) local branch of the national bank, andargues successfully in its own courts that there is no power in congress to create a bank.Goes before the Supreme Court.--Maryland Argues:   Bank not in Congress’ enumerated powers andtherefore reserved to the states under the 10 th Amendment. N&P Clause: “Proper”constrains “necessary.” ã Marshall: “Necessary” has a looser meaning—means “appropriate to an end.”Proper means “within the scope of the constitution.” o Structural/Textual Argument : N&P is the power-granted part of theconstitution, not in the restrictions part o Structural (II) : MD Can’t tax bank because “power to tax is power todestroy”  Court stepping in to protect “not adequately represented “party” o Intra-Textual Argument : “In some places they qualified with ‘absolutely,’ but not here.” ã Marshall never talks about intent! (Hamilton’s proposed enumerated bank powerswere rejected). (Intent arguments not common back when b/c notes of theconvention were sealed for a while). ã Post-Ratification History Argument: We learned from War of 1812 howdifficult it was without a bank, we need one (Marshall doesn’t make thisargument). o  Even some of the Framers who initially thought no authority for a bank changed their minds! Living/Dynamic Constitution! ã   Key to Marshall’s Constitutional Interpretation:   This is a constitution thatwe’re talking about! o Purpose;   Create a Union that would hold together; It cannot take care of every detail—short, general outline document. It must give the unionpower to do what it does  Consequentialist Reasoning: Grand Vision of US ã   Black Letter Law: o Commerce Power is Plenary o Marshall: Congress can do whatever it wants, unless:1)It’s unconstitutional2)It’s a “Pretext” o “Let the ends be legitimate, let it be within the scope of the constitution,and all means which are appropriate, which are plainly adapted to that end,which are not prohibited, but consist with the letter and spirit of theconstitution, are constitutional.” o   Boot Strapping: Is this power enumerated? (States don’t have a list; they just have genereal police power).  If yes, then what’s the scope ( Gibbons )?  If not, then what’s an implied power: N&P Clause—it must be infurtherance of enumerated powers. ã As long as it’s not a pretext, then it should be OK.3  Tiebout Theory: States can do whatever they choose and people can move around andchoose where they want to be.Friedman: “Necessary and Proper:” All sorts of means to get to an end. Gibbons v. Ogden (a dormant  Commerce Clause case)Facts: NY State granted ferry monopoly to Fulton and Livingston, but dude comes in andwants to do his own ferry to NJ, and says that this violates interstate commerce.--Note: This is a Dormant Commerce Clause Case   Marshall Black Letter: Commerce Is All Commercial Intercourse. ã Refuses to interpret the Constitution Strictly because that wouldconstrict congress’ ability to do what it needs to do.1.Commerce is “More than traffic; it is intercourse— describes the commercial intercourse between nations andparts of nations.” 2. Congress Among the states: “intermingled with—cannotstop at border—must involve more than one state.” 3. Tenth Amendment Limits—None--PLENARY o Marshall Doesn’t explicitly rule on dormant commerce clause, but endorses idea because enumerating a right to the federalgovernment gives it exclusive authority o Original Intent: “The power over commerce, includingnavigation, was one of the primary objects for which the people of America adopted their government, and must havebeen contemplated in forming it  …all have understood it in thatsense; and the attempt to restrict it came later.”  But the federal gov’t has the power of taxation, so doesthat mean that states can’t tax? ã   Anything Involving the regulation of commerce is included,because the power is plenary ã States have power to regulate purely internal commerce.Marshall’s Check on Congress: They need to be re-elected every two years.--Gibbons allows government to do any enumerated power  unrestricted   (because they have will of people at heart)--Thus, the implied powers of the federal government are far reaching--Prohibitions on States:1) States must accede (give Full Faith and Credit) to the Feds.,including implied federal power: dormant commerce clause2) Implied preventions such as taxing bank ( McCulloch )--On Dormant Commerce Clause Powers: “It is the power to regulate; thatis, to prescribe the rule by which commerce is to be government…acknowledges nolimitations.” (p. 171)--Differntiation from taxation (which states can do as well): Collectingtaxes is essential to the states’ existence; state can tax w/out interfering with federalgov’t’s abilities there, while only one commerce can be regulated –power can’t be usedconcurrently United States v. EC KnightFacts: Government tried to apply Sherman Act to sugar monopolizer.4
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