Professor Peter Woll's
Politics 115a, Constitutional Law Fall 2008
Class Assignments
Importance of Constitutional Text
Methods of constitutional interpretation
Analysis of Marbury v. Madison (1803)
Griswold v. Connecticut (1965)
The Political Question Doctrine
Other Standing Cases:Notes on the Incoherence of Modern Standing Doctrine
Today I will give an overview of the course.
I will briefly review the Constitution, constitutional law, and the Supreme Court's role in constitutional interpretation.
Read Article III and understand the nature of constitutional courts. What features distinguish them? Note the case and controversy requirement, the guaranteed tenure and compensation of judges unless impeached, Congress's authority to create courts inferior to the Supeme Court. What is the original and appellate jurisdiction of the Supreme Court?
Next read Article I and note its purpose. It lists Congressional authority, includiing the power to regulate commerce among the states. The commerce power is a critical part of the Constitution for in many ways how it is interpreted determines the balance of national and state power.
The Constitution is our Higher Law but that law also includes unenumerated rights and liberties such as the right to privacy (Griswold v. Connecticut, 1965).
The Consitution is an outline, not a blueprint of governmental structures, processes, powers, and limits. The commerce power, for example, can be interpreted narrowly or broadly, strictly or loosely in constitutional parlance.
Political debate raged over the meaning of the commerce authority from the early 19th century (Gibbons v. Ogden, 1824) until 1941 (Wickard v. Filburn) and even beyond ( U.S. v. Lopez, 1995). That debate was political, and was not based on abstract theory.
The Court interprets the Constitution by using:
1. Textual analysis;
2. original intent of the framers;
3. common law and Higher Law derivatives;
4. normative derivatives, as in finding a "liberty" to contract in the 14th Amendment's due process clause. (Lochner v. New York, 1908);
5. derivatives from a reading of the nature of the macro constitutional process of government . The value of representation reinforcement is an example of a constitutional /democratic process derivative.
McCulloch v. Maryland (1819), p. 822.
Gibbons v. Ogden (1824), p. 841.
Lochner v. New York (1905), p. 450.
Griswold v. Connecticut (1965), p. 542.
Roe v. Wade (1973), p. 495.
We are jumping around in the text but not in our focus. For this reason it is essential that you tune into this site before going to each class throughout the semester.
By wednesday complete Brown v. Board and the Swann case. We're not going to spend a lot of time on Brown but simply use it as an example of normative judicial review. Why is it normative? Note Warren's admission that he and the Court were not following the original purpose of the 14th Amendment's equal protection clause. How then can the opinion be justified on constitutional grounds?
The Marbury case was one of the first to represent politics by other means as the Federalist plaintiff sought a writ of mandamus to compel Jefferson's Secretary of State to deliver his justiceship of the peace commission that had been signed and sealed by John Marshall when he was Secretary of State.
Chief Justice Marshall accomplished two of his political objectives in his Marbury opinion. First, he read the Riot Act to Jefferson and told him to do his duty and order the commission delivered. Second, he wrote some obiter dictum that stated what almost everyone thought was obvious, that the Supreme had the authority to review congressional acts to decide their constitutionality.
The Marbury opinion became the most cited case for the Court's power of judicial review. The opinion makes little sense but don't worry about that. Marshall held that the Court had no jurisdiction over the case but at the same time of course accepted jurisdication so he could attack Jefferson.
The writ of mandamus that Congress authorized the Court to issue in its original jurisdiction was a prerogative writ of common law courts dating to the 16th century. Several centuries of judicial custom clearly gave the Court the authority to issue the writ in original jurisdiction. And whether or not the Court could issue the writ was not a jurisdictional question anyway.
Are you getting confused? Not to worry. Just remember the macro points of the case which are:
Here is what Chief Justice John Marshall wrote:
By the Constitution ...the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts' and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive....
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has a right to resort to the laws of his country for a [remedy].
The issue was of course whether or not Congress had the authority to establish a national bank. The matter was interestingly discussed in Philadelphia in the convention of 1787 and the evidence suggests that insofar as original intent can be assessed the framers opposed a national bank. (p. 831.)
Hamilton and Randolph, however, advised President Washington that the Constitution's text supported the validity of a national bank.
Read carefully pp. 831-835. What conclusions do you reach about the McCulloch case and constitutional interpretation generally? Does constitutional interpretation in the end always come down to political considerations?
Marshall does not refer to any specific enumerated power to support the bank legislation. He refers to a range of specific enumerated powers, including the commerce power. Then he argues that "it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution."
Marshall concludes: "Let the end 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 the Constitution, are constitutional." (p. 828)
He does not cite the Convention debates nor The Federalist. If he had as noted above he would have concluded that the Convention's rejection of the proposal to give the national government the power of incorporation meant it opposed a natiional bank.
But the first bank bill passed in the first Congress virtually without opposition, and as your text notes about half of that Congress consisted of delegates to the Constitutional Convention of 1787. Noone except Madison objected to the bill on constitutional grounds.
Marshall writes that the framers "cannot be presumed" to have intended a narrow definition of Article I.
Chief Justice Marshall's Federalist opinion in the Gibbons case carried out a clear original intent of the framers to give Congress expansive commerce power over the states. Marshall ruled that Congress could constitutionally regulate any activity that affected commerce among the states, including activities within state boundaries. Marshall's test was empirical. He used the commerce clause to enhance national power and push back state boundaries under federalism. In fact one can argue that under Marshall's definition no limits were placed on congressional authority. Later, as we will see, when the Federalists and nationalists were long gone, the Court used the commerce clause to restrict national power and widen the "reserved" powers of the states.
In the Lochner case the Court overturned a New York statute that regulated the hours bakers could work. The state's "police power," that is the constitutionally reserved power to regulate the health, morals, and safety of the community, supported the law. However, Justice Peckham held for a divided Court that the law violated the "liberty to contract" that was part of the liberty protected by the 14th Amendment's due process clause. The law was an unreasonable exercise of the state's police power.
I pointed out in class that the New York legislature held extensive hearings on the health implications of working long hours in bakeries. Scientific evidence supported the law. Nevertheless the Court found no basis "for holding [the law] to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker."
The Court, in spite of its protestations to the contrary, substituted its policy judgment for that of the legislature in Lochner. It was legislating, not adjudicating. Why? Because no reasonable constitutional interpretation, nor the common law, supported a liberty to contract.
We will see, however that definitions of due process are always substantive at some point. For centuries courts have defined due process by injecting their learning and values about what procedures are required to insure fair trials to parties in criminal proceedings and to those injured by governmental and private actions of various kinds.
How does Douglas distinguish his opinion from Lochner? Is Justice Black correct in his dissent that in method the Court's Griswold opinion is the same as the substantive due process of Lochner?
Louis D. Brandeis argued in a famous Harvard Law Review article in 1890, that common law supported a right to privacy:
That the individual shall have full protection in person and in property is a principle as old as the common law; butit has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.
In determining the coverage of the due process clause of both due process clauses the courts must first find that governmental action has deprived a person of life, liberty, or property . All criminal cases of couse involve life or liberty so due process applies automatically. But what about liberty and property? Definitions of liberty in particular, insofar as due process is concerned, have few precedents to guide the courts. Therefore when courts define liberty they often inject their subjective values into the equation as Peckham did in Lochner. He simply stated on tenuous grounds that the 14th amendment's liberty included the liberty to contract between employers and employees.
Justice Douglas did a least cite the general historical precedent of the Bill of Rights along with the Higher Law and historical fundamental rights to support including a right to privacy in the liberty of the due process clause of the 14th amendment. In my view Douglas was on far firmer ground in Griswold than Peckham was in Lochner.
Section 1. Brown v. Board of Education: A Case Study. 59
A. The Fourteenth Amendment and Race: 1865-1912 60
Notes on Plessy and the Constitutionality of State-Mandated Racial Segregation 66
B. The Road to Brown 69
C. The End of Separate but Equal
74
Brown v. Board of Education 78
Notes on Brown, Bolling, and the Role of Judicial Review. 82
Oct. 2-8
Today we will complete our overview of equal protection and Brown v. Board of Education.This case should be accessed through the case sites, such as Findlaw, given on last year's politics 115a web site for Supreme Court cases.
The plaintiffs argued that the statute was unconstitutional on 14th Amendment grounds because it was state action that deprived them of: (1) their privileges and immunities as citizens of the United States; (2) their property without due process of law; (3)and violated the equal protection clause by making an irrational distinction between government regulated and independent butchers as classes. The plaintiffs also attempted to use a 13th amendment argument that the law put them into involuntary servitude by requiring them to slaughter in regulated premises.
What answers did Justice Miller's opinion give to each of these claims and what was his reasoning. How did he define the 14th amendment's language and intent? Was he a strict or loose constructionist?
Brief Justice Field's dissenting opinion and highlight the points of difference between him and Miller. Note his substantive interpretation of the privileges and immunities clause.
What arguments did Justice Bradley use in his dissent?
The Court's preceding very important view that constitutional construction should follow the spirit of the Civil War amendments possibly supports the vast expansion of the due process and equal protection clauses that occurred much later. For example, can Miller's observations be used to support the application of the equal protection clause to gender classifications in law? Certainly the spirit of the amendments supports prohibitions upon racial discrimination of any kind, not just discrimination against African Americans. Miller's expansion of the original intent of the amendments justifies strict judicial scrutiny of all racial classifications.
Without unduly dwelling on Miller's complicated and convoluted exegesis of privileges and immunities students should note the result, which was the nullification of the clause. This meant that in future cases lawyers would rely on the due process clause to make their arguments to expand the coverage of the 14th amendment, as in the litigation that gradually nationalized most of the Bill of Rights.
Justice Miller cited both federal and state judicial interpretation of due process and found that "under no construction of [due process] that we have ever seen, or any we deem admissible, can the restraint imposed by the state of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property with the meaning of [the due process clause]."
The equal protection clause originated in the "existence of laws in the states where the newly emancipated Negroes resided, which discriminated with gross injustice and hardship against them as a class, [and this] was the evil to be remedied by this [equal protection] clause, and by it such laws are forbidden."
Now note Miller's strict interpretation of the equal protection clause in terms of original intent. First, he referred to the congressional authority under section 5 of the amendment to enforce it by "suitable legislation." The text of section 5 is: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this [amendment]."
Miller then turned to an analysis of what constituted appropriate enforcement legislation under section 5. He concluded that "We doubt very much whether any action of a state not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of [the equal protection clause]. It is so clearly a provision of that race and that emergency, that a strong case would be necessary for its application to any other [class].
Whatever the future interpretation of the equal clause would be Miller found that in the present case involving an economic class the Court did not need to define equal protection because it did not apply.
Section 1. The Political Question Doctrine 1192
Gomillion v.Lightfoot (1960)1195
Baker v.Carr (1962) 1195
Contrast Justice Brennan with Justice Frankfurter in Baker.
Notes on the Po1itica1 Question Doctrine Since Baker 1201
We will continue analysis of the political question doctrine and standing.