Constitutional Law Class Notes 1/20/04


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 U.S. government could not answer a particular question.  This was a great oral arguer, Seth Waxman.  The question was: “If we uphold this statute, this Violence Against Women Act, is there any limitations on Congress’s commerce power?”  In other words, if we uphold this statute, can we imagine some other statute that would be beyond Congress’s Commerce Clause power, or would upholding this statute grant unlimited power?  O’Connor tried to get Waxman to come up with a statute that would be unconstitutional, but he couldn’t!


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.


United States v. McCoy


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 California.  What was it that moved in interstate commerce?  It was the camera and the film that was used to take the picture came from either New York or abroad.  The statute requires that the material either move in interstate commerce (which didn’t occur) or else was produced using materials from interstate commerce.


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.


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