Constitutional Law Class Notes 1/22/04


This series of assignments all relate to federalism.  But we’re going to switch gears on Monday and Tuesday to looking at the Tenth Amendment as a limit on federal power and protection of state power.


When we read the Tenth Amendment cases, we should start by thinking about what the relationship is between the Commerce Clause and the Tenth Amendment.  Chemerinsky discusses this, and we’ll also discuss this in class.  (What powers are given to Congress by the Commerce Clause?  What powers are taken away from Congress by the Tenth Amendment?)


Now that we’ve read a few of these cases, Foley wants to know if we’re starting to get more comfortable with what’s going on.


“Facial” versus “as-applied” challenges


There’s a conflict between “facial” challenges and “as-applied” challenges that comes up in each case.  The normal rule is that you start with an “as-applied” challenge.  That means that there a particular person in court who says: “This law is unconstitutional as applied to me.”  It could be a civil or criminal defendant.


On the other hand, in Raich for example, you can sue in anticipation of having a law used against you.  If you’re the petitioner or defendant, you may not care about how the law is applied to anybody else except yourself.


You’re not normally allowed to go to court and say: “The law can be validly applied to me, but it can’t be applied validly from someone else who is different than me.  Therefore, I want the Court to declare the law unconstitutional on the whole so I win even though I couldn’t have won on a claim as applied just to me.”  You can’t piggyback on someone else’s constitutional rights.


This is a facial challenge in its most basic form.  Normally, these are no good.


“What about third-party standing?”  There’s a complicated body of law called “standing law”.  It comes up a lot in practice.  It means that in a narrow set of circumstances when your constitutional rights aren’t at stake you can litigate on behalf of someone else’s constitutional rights.


For the sake of example, the First Amendment freedom of speech principle is one area where facial challenges and third-party standing are allowed.  This is allowed because we want a very robust protection of freedom of speech.  In pornography cases, for example, the court will often say with respect to non-protected extra gross pornography that the “smut peddler” can bring a facial challenge based on the notion that the law in question is written so broadly that it bans materials that shouldn’t be banned.


But this is the exception rather than the rule.  This distinction really confuses judges, courts, and lawyers.  They’re not sure when they have a facial challenge in front of them.  Judges have a hard time with this!  If we’re confused, that’s okay, because they are too!  Part of the reason is that the idea of “facial versus as-applied challenges” isn’t in the Constitution.


Foley thinks the challenge in McCoy was not a debate over facial challenges and as-applied challenges.  Foley says that McCoy is really asserting an as-applied challenge and that she is not using third-party standing.


Which of the cases we’ve gone over so far are the most vulnerable to being overturned by the Supreme Court?


The farmer in Wickard was in the agriculture business.  He was a self-employed farmer.  What’s the difference between Farmer Filburn, who was a commercial farmer who also happened to grow extra wheat for his own consumption and the hypothetical we talked about with tomatoes?  Do we think that Filburn is more “commercial” as a person because he’s a commercial farmer?  Wheat is fungible.  The wheat is a lot more fungible than McCoy’s picture.  What about the machine guns?


Raich v. Ashcroft


There’s no “drug clause” of the Constitution!  The government doesn’t have the basic power to say that there are certain powers they like and don’t like.  The only thing that gives Congress the authority to outlaw drugs is to tie it to interstate commerce.


The government will argue that they have to power to keep drugs from crossing state lines.  In turn, if we let California have marijuana in their own state, we can’t keep it within that state as a practical matter.  The same argument is made for guns: if guns are made in North Carolina, they will find their way to the streets of New York.


Come up with as many arguments as you can for each side!


Foley says: The Ninth Circuit has a poor reputation in the U.S. Supreme Court right now.  It is considered ideological and aggressive.  That’s probably not true of all three opinions, but the Raich one would probably be considered the most result-oriented.  It appeared that the judges had an idea of the result they wanted and they used the doctrine of Lopez and Morrison as an instrumentality to get to the result they wanted.


These Ninth Circuit cases are cutting edge!  The only way we’re going to find out what current Commerce Clause law really is would be if the Supreme Court takes on one of these cases.


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