Constitutional Law Class Notes 1/15/04


Next week, we have three classes, and each class weíll be reading a different Court of Appeals case out of the Ninth Circuit that grapple with Lopez and Morrison.Weíll see the same question of the scope of the Commerce Clause not from the perspective from the U.S. Supreme Court thatís 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 youíre an attorney, you should ask yourself: Can I win this case on statutory grounds instead of constitutional grounds?These issues wonít 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.Whatís going on in the judgeís head?Whatís on the judgeís 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.


United States v. Morrison


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?Itís 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.ďWeíre not awful ogres, weíre just doing our job interpreting the Constitution.Ē


What is the nature of Brzonkalaís claim?Itís a civil suit.She wants money damages.What kind of civil case is it?Itís a tort case.Itís sort of a battery.


By the way, why is the United States a named party as the case comes to the Supreme Court?Itís because the way in which cases are named in the Supreme Court is different than they are in the lower courts.In the district court, itís ďplaintiff v. defendantĒ.In the intermediate appellate courts, the name will stay the same.But thatís not so in the U.S. Supreme Court.It will be ďpetitioner (party seeking writ) v. respondentĒ.The United States got into this case not as a plaintiff, but as a petitioner.The United States intervened in this case when the constitutionality of the statute was brought into question by Morrison.


VAWA purports to create a federal tort remedy, but Morrison argues that Congress has no authority to create such a remedy.The United States steps in, saying: ďHey!Thatís my statute!Donít touch my statute!ĒThere were actually two different cases in the U.S. Supreme Court that get consolidated: United States v. Morrison and Brzonkala v. Morrison.Both petitions are granted and considered together for the purposes of oral argument and disposition.


Thereís 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


Whatís the constitutional question that the Court is deciding in this case?Itís 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.


Hereís 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 weíre 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.Theyíre 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.Thatís 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 canít 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 arenít enough.


Foleyís 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 canít 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 doesnít disagree!They donít 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 wonít be a legally dispositive connection.


Itís the same thing in Morrison.The majority doesnít 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 thatís not going to be dispositive as far as the constitutional question of Congressís 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 isnít 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, itís a local problem that state law must regulate.But if ďguns near schoolsĒ isnít a power Congress can address, then rape isnít going to be a power of Congress either.It will have to be an issue of state criminal or tort law.Itís 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 OíConnor would be sympathetic to gender violence concerns and would be willing to uphold this law even though she wasnít willing to uphold the gun law.It didnít work because in her understanding this was just the same issue as the gun issue.She wasnít 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.


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