Constitutional
Law Class Notes
Next
week, we have three classes, and each class we’ll be reading a different Court
of Appeals case out of the Ninth Circuit that grapple with Lopez and Morrison. We’ll see the same question of the scope of
the Commerce Clause not from the perspective from the U.S. Supreme Court that’s
making the decisions and creating the relevant law, but from the position of subsidiary
judges in the legal system who themselves are trying to figure out what Lopez
and Morrison
mean.
We
may see the doctrine of avoidance in
this class and in Legislation. Courts
like to avoid constitutional questions when they can. They will tend to interpret statutes narrowly
to make them constitutional instead of declaring them unconstitutional altogether. Consider, for example, United States v. Jones in which the federal arson act was
interpreted not to apply to a residence.
When
you’re an attorney, you should ask yourself: Can I win this case on statutory
grounds instead of constitutional grounds?
These issues won’t be as neatly divided as they are in the first-year
law school curriculum.
Imagine
yourself in the position of a judge having to decide new kinds of cases as they come along. There are lots of federal laws that have been
on the books for a while that may now be in question.
Then
imagine yourself being a lawyer. Why
imagine this second? To be a good lawyer
both as an advocate and as an advisor to your client, you must be able to
imagine what the case looks like from the bench. What’s going on in the judge’s head? What’s on the judge’s mind? What questions will the judge ask?
So
each day next week will seem similar. We
will study three cases with three different factual patterns, but they all
involve the same problem.
What
are the facts? A woman had been
raped. She sued the perpetrators under
the federal Violence Against Women Act.
How
does the case get to the Supreme Court?
Would this case look any different to the U.S. Supreme Court if the plaintiff
had decided not to name the university as a defendant? No, but why not? It’s not necessary for there to be multiple defendants
for the constitutional question to exist.
The university is irrelevant, in a sense, to the federal litigation.
It
seems like the Court is trying to show some sympathy to the plaintiff even as
they dismissed her complaint. “We’re not
awful ogres, we’re just doing our job interpreting the Constitution.”
What
is the nature of Brzonkala’s claim? It’s
a civil suit. She wants money damages. What kind of civil case is it? It’s a tort case. It’s sort of a battery.
By
the way, why is the
VAWA
purports to create a federal tort remedy, but Morrison argues that Congress has
no authority to create such a remedy.
The
There’s
a lot of talk about criminal law in the opinion, but this is not a criminal case. Part
of the debate is whether the Court will allow federal tort law to exist beside
or on top of state tort law.
The constitutional question
of Morrison
What’s
the constitutional question that the Court is deciding in this case? It’s not the same question that Lopez. That case decided whether the federal government
had the power to make it a federal crime within 1,000 feet of a school. The issue here is similar, but not identical.
Note
that we end up with the same 5-4 vote in this case as in Lopez.
Here’s
the constitutional issue in a nutshell: Does
Congress have the power under the Commerce Clause to make gender-motivated
violence that occurs within a single state both a federal crime and a federal
tort subject to a civil damage remedy?
Foley
wants us to brief our cases. But
moreover, we should always be able to identify the constitutional question that
the court is deciding in the case we’re considering that day in class. Also, consider whether the court is dealing
with a narrow issue (for example, the constitutionality of just one statute) or
a broad issue (the constitutionality of a whole range of similar statutes).
So
the issue before this Court is not whether federal statutes related to all violent crimes are constitutional. They’re looking only at the constitutionality
of federal law in the area of gender-motivated violence.
Next
week is good practice in spotting the constitutional issue.
Chemerinsky
thinks Morrison
is even more revolutionary and a bigger deal than Lopez. That’s what Souter thinks too. Basically, this is the deal: in the VAWA,
Congress actually thought long and hard about the Commerce Clause question
itself and wrote lots of findings. Congress
explained in great detail what it saw as the link between gender-motivated
violence and its effect on interstate commerce.
For example, when women get hurt, they can’t go to work and absenteeism
has an effect on productivity. They
document the economic dimension of gender-motivated violence.
This
is different than the Gun-Free School Zones Act. That statute was written in a pretty sloppy
fashion! Congress was complacent with the
broad powers that had been granted to them by the Supreme Court under the Commerce
Clause since 1937.
Some
observers thought Lopez would be a narrow decision that would
simply require the procedural requirement of findings supporting a connection between commerce and whatever Congress
is legislating about. Morrison
shows that findings aren’t enough.
Foley’s take
The
majority in both Lopez and Morrison are asking and
answering a different question than Breyer asks and wants to answer in the
dissents. Breyer says in both these
cases you can’t dispute the fact that the activity in front of the Court, if
taken in the aggregate, has an effect on the economy. But the majority doesn’t disagree! They don’t say Breyer is wrong to say that
you can make that connection as a factual matter. They just say that even though you can make that connection factually, it won’t be a legally dispositive connection.
It’s
the same thing in Morrison. The majority doesn’t dispute the findings of
fact provided by Congress: domestic violence could have a huge impact on our
national economy as well as being a social and moral problem. But that’s not going to be dispositive as far as the constitutional
question of Congress’s power under the Commerce Clause.
Foley
thinks that from the framework of the majority, once it decides Lopez
and once it gets over the hurdle that the existence of findings or their absence
isn’t a big deal, then Morrison follows quickly from the Lopez
precedent.
The
majority says in Lopez that no matter how bad it is to
have guns near schools, it’s a local problem that state law must regulate. But if “guns near schools” isn’t a power Congress
can address, then rape isn’t going to be a power of Congress either. It will have to be an issue of state criminal
or tort law. It’s non-economic. The framers of the Constitution saw these as
state issues.
How
do we know the scope of what the Court is deciding?
A
lot of people wrote amicus briefs for this case and a lot of people thought
Justice O’Connor would be sympathetic to gender violence concerns and would be
willing to uphold this law even though she wasn’t willing to uphold the gun
law. It didn’t work because in her
understanding this was just the same issue as the gun issue. She wasn’t going to expand federal jurisdiction
in either situation.
Both
Lopez
and Morrison
say: if we allow federal law to enter these domains, then we destroy the notion
of a dual system of government. If we allow the federal government to do this, then we can allow the federal
government to do anything. This is the same motivation behind the
majority opinion in both cases.