Constitutional
Law Class Notes
When
we left off, we were talking about how in Morrison, many folks were organized in
a concerted way to try to win O’Connor’s “swing vote” on the theory that since
the issue involved gender violence she would be more personally involved than
she might have been in terms of gun violence in schools. There were tons of amicus briefs, including
the states themselves, arguing that Congress should have the power to regulate
violence against women.
One
more point: for O’Connor as well as the other justices in the majority, it
boiled down to the fact that the counsel for the
There’s
a debate in both cases between Rehnquist in the majority and Breyer in the
minority on this exact issue. Rehnquist
says there must be a statute that falls outside of Congress’s power. If we can’t find a theoretical example that
goes farther than the statute at hand, then this
statute must go too far.
Foley
finds the transcripts of oral argument before the U.S. Supreme Court very
enlightening. If you’re confused about
what’s really going on in a case, read the transcripts of oral argument. That’s where “the rubber meets the road”. The critical questions that the justices are
thinking about come to the fore. If you
want to know what the justices are thinking about and what’s going to be on
their minds, read the oral argument in similar cases. That’s a great way to prepare for your own
case before the Supreme Court (keep your fingers crossed).
Foley
will try to raise questions in class that are like the ones that the Justices
would raise at oral argument.
The
statute that is being challenged is 18 U.S.C. §
2252 (a)(4)(B). Why does Ms. McCoy
get prosecuted under this statute? There
is a picture of the mother and daughter partially nude, though not engaged in
any sexually explicit conduct.
The
photograph wasn’t moved in interstate commerce.
The photo never left the state of
McCoy
possessed one “other matter” as described in the statute. She’s indicted under the statute. What happens to her? She conditionally pleads guilty. That might have been a mistake on her lawyer’s
part. Her husband doesn’t plead guilty,
and a jury acquits.
But
McCoy pleads guilty but reserves the right to appeal the dismissal of her
motion to dismiss the indictment. What
does it mean that her guilty plea is conditional? Does she dispute that she was in this picture
and possessed the picture? Does she
dispute that the photograph was made using materials from out of state? No.
She doesn’t dispute the facts,
she disputes the law. She’s raising a constitutional objection to the statute.
She
says that she’s guilty, but she’s preserving an issue for appeal. She says that she did violate the law, but
that the law is unconstitutional. She
doesn’t dispute the statute under the First Amendment or based on some kind of
parental rights. She disputes the statute
based on the Commerce Clause.
It’s
very unlikely in the normal course of events for the Supreme Court to raise issues
sua sponte. You can usually assume that
they won’t bring up issues unless the parties bring it up in their briefs.
One
of the things Foley cares about is precision. Focus precisely
on what language is most important to use what we’re trying to talk about.
The constitutional issue
How
would we define the Commerce Clause question in this case? First off, we’re probably in the realm of the “substantial effects” test. But note that this case is different from Lopez
and Morrison. This statute has a “jurisdictional hook”, and
we might speculate whether we can use that to get into the “channels of interstate commerce” prong.
What’s
the constitutional question about Congress’s power? What’s the new issue? Does Congress have the power under the Commerce
Clause to criminalize possession of a picture that (1) is sexually explicit, (2)
was made using a camera and film that moved in interstate commerce, (3) is of a
parent and child and (4) has never been shown outside the home? Whoa!
That’s specific!
The dissent
The
dissent and the majority dispute the use of the aggregation theory of Wickard.
They don’t even really agree on what question they’re answering! They have different conceptions of the facts
and the statute and the relationship between the two.
What’s
the difference between the question the majority thinks they’re addressing and
the question the dissent thinks they’re addressing? The dissent is saying: “We’re going to ask
whether Congress has the power to criminalize possession of child pornography
whatever the particular circumstances are.”
For example, it may be a person who has one picture or 20,000. It could be someone who intends to sell the
pictures across state lines or not. But
the dissent doesn’t want to subdivide this up.
The dissent wants to ask whether Congress has the power to regulate the whole category as one big category.
The
majority says, on the other hand, that you must ask whether Congress has power
over certain subcategories of these
pictures, and not the whole category. How does the majority define the relevant
subcategory? How narrow do they get?
Notice
that this Ninth Circuit opinion discusses an opinion out of the Fifth Circuit
called Kallestad. The facts of that case were very
different. The defendant advertised in a
local newspaper for women to come to his house to be models. He photographed underage women who he wasn’t
related to. The allegation was that he
treated the product of those photography sessions as the functional equivalent
of pornographic pictures that he might
have purchased in interstate commerce. It just so happens that he produced them
himself. You can clearly compare this
argument to Wickard.
The
majority thinks that any possession of a picture for home use that’s not going
to be sold in the channels of interstate commerce is the issue. Foley thinks you could narrow it to the
family context, where a parent is taking a picture of a child. If you want to subdivide the category the way
the majority wants to, you can do so in different ways. The way you subdivide it will be relevant for
how you define the constitutional question.
Why
is this getting prosecuted? The dissent
doesn’t think it’s so terribly serious that he would have prosecuted her if it
was up to him. But that’s not the judge’s
job.
What
are the essential elements of the majority’s reasoning for their conclusion
that this is beyond Congress’s power? We
have a four-part test under Morrison.
Is
it commercial? The court says no. On the other hand, McCoy had to go to the
film lab, and she had to buy the camera through interstate commerce. Isn’t child pornography commercial in nature,
or at least a lot of it? Filburn didn’t
intend to sell his wheat. Why is that commercial
but this photo isn’t?
Is
the connection to interstate commerce attenuated? The court finds that it’s clear that she’s
not in the business of producing child pornography. But the wheat in Wickard wasn’t going to be moved into the stream of interstate
commerce either. Why is that wheat commercial and connected to interstate commerce?
For
the majority opinion, the critical distinction is that wheat is a fungible good
while child pornography is not. The
point is that the mother doesn’t possess the picture as a substitute for other
child pornography. This possession at
home of this picture does not relate to the interstate child pornography market
at all. This is the critical distinction.
We’ll
spend a little time tomorrow on the “jurisdictional hook” question. Why can’t the government win based on the
fact that the camera and film moved in interstate commerce? Then we’ll go on to Stewart.