Constitutional Law Class Notes 1/7/04


Foley is really tall!


Con Law is different from every course we had last semester and different from a lot of what we’re doing this semester…the biggest overlap is between Con Law and Legislation.


Boring administrative stuff


Foley lives in Room 202.  It’s almost in the very tippy point of the “prow of the ship” of the law school.


There’s a supplement or you can use Westlaw.


Office hours are Tuesday from 3 to 5 PM.


The on-call system is random.  At the end of each week, we’ll find out who’s on call for the following week.  Foley thinks being “on-call” is more like real life than mercilessly calling on anybody at any time.


How Con Law is different


Torts and Contracts have Restatements.  They’re common law-based.  There’s a place to look to find “The Law”.  In Criminal Law, there’s the Model Penal Code.  It’s a pretty good conception of what Criminal Law “ought” to look like.  With Civil Procedure, you look at the Federal Rules of Civil Procedure and that’s pretty much it.  There’s law there to be found in the first semester courses.


With Constitutional Law, you have to suspend that sense of law.  Constitutional Law will feel very different because there is no “Restatement of Constitutional Law”.  Constitutional law is generally very fuzzy and amorphous compared to common law or statutory law.  Part of what the class is all about is coming to terms with that.  We have to deal with this fuzziness in practice when we deal with the legal system.


We will focus on the process of constitutional argumentation.  In other words, how do we, as lawyers, advance a proposition of constitutional in support of an issue?  It’s a question of craft and of persuasiveness.  On both sides of the same issue, there may be better ways to advance an argument than their alternatives.  The goal is to learn the craft and be able to distinguish between stronger and weaker forms of constitutional argument.  Method is what this is all about.  It’s not about the result.  It’s a question of means rather than ends.


So this course will be similar to Legislation insofar as it is also a methods kind of course.  So too will the Legal Writing course be a methods course.  This semester will feel different than last semester!  Property will probably feel most like last semester.  It’s a substantive class like Contracts.


We’re not here to learn the substance of Constitutional Law!


That’s weird!  We’re here to learn about methods and processes of argument.  Constitutional Law will be even more different than Legislation or Legal Writing.


What’s distinctive about constitutional law is that it’s an extraordinary form of law: the rest of our legal system is, for the most part, dominated by common law and statutory law.  These bodies of law exist on the same plane or hierarchy.


Common law is judge-made law, but it can be overruled by legislation.  For example, if a judge issues a pronouncement on an issue of torts or contracts, and the people of Ohio are upset by that, they could try to persuade the Supreme Court to change their minds, but they would run up against stare decisis.  Foley is a big believer in stare decisis.  This is the idea that courts follow their own precedents.  If the court issues a certain answer to a question, the court will stick to that answer unless it’s overruled.  But you overrule rarely and only with adequate justification.  On the other hand, if you don’t like the proposition of contract or tort law that the court has just adopted, you can go to General Assembly and ask them to use their power to completely repudiate the Supreme Court.


The point is that since the legislature can control, it’s in the driver’s seat.  Statutory law exists on the same plane as common law.  That means that common law from the Supreme Court is authoritative unless and until it is replaced by statutory law.  Constitutional law exists on a higher plane of authority.  It’s the “supreme law of the land”.  Within the state of Ohio, we have common law and statutory law, but above both is Ohio constitutional law.  It sits on top of both.


In our federal system, the United States Constitution sits on top of statutory law enacted by Congress.  It’s supreme in terms of hierarchy.  When the Court renders a decision of constitutional law, how do we revise it?  What if we don’t like what the Supreme Court does?


What if the United States Supreme Court interprets an act of legislation in a way we don’t agree with?  For example, consider the Sherman Act.  Say the United States Supreme Court says that Microsoft has no unlawful monopoly power, but we think the interpretation was improper because Microsoft actually is bad.  What can we do, short of replacing the justices?  We could try to get Congress to write a new law or amend the current law to clarify it.


On the other hand, let’s say the Supreme Court interprets the Constitution in a way that we think is wrong.  Now what?  Can we go back to Congress and have them undo that interpretation in the same way that they undid the interpretation of the statute?  Not exactly.  You’ll have to amend the Constitution!  Everything that we learn about in Brudney’s class Congress can fix by an ordinary act of Congress.  But if something screws up in here, you need to amend the Constitution and you can’t legislate out of it.


It’s really hard to amend the Constitution!  It’s a heck of a lot tougher than changing a statute.  We need two-thirds of each house of Congress and ratification from three-quarters of the states.  We’ve only had 27 amendments ever, and the first 10 were a package deal.  On the other hand, we’ve had thousands and thousands of acts of Congress.


Amending the Constitution is the only way to override the Supreme Court’s power of constitutional interpretation unless you can persuade the Court that its previous ruling was wrong.  Everything else is ordinary in that it’s subject to revision by ordinary constitutional processes.  This is extraordinary!  You need a lot to happen in order for constitutional stuff to change!  This is the key point that makes constitutional law distinctive.


Part of the reading for tomorrow focuses on the Second Amendment.  Think about the idea of the United States Supreme Court trying to figure out what that amendment means.  Think about it in the context of supposing that Congress has adopted a law to prohibit Americans from owning machine guns.  Is that law constitutional?  Has it violated the Second Amendment?  Is there a right to bear machine guns?  How should the United States Supreme Court go about answering that question?  What does the Second Amendment mean, and how does it apply to this hypothetical law?


About Justice O’Connor


Why was the first assignment not to read the Constitution itself, but instead reading about Justice O’Connor?  Why not start with the text itself?


Why is Justice O’Connor considered so important?  She’s the “swing vote” between the “liberal” and “conservative” wings of the Court.  O’Connor is most likely to “flip-flop” between the two groups.  In many of the cases that have been decided in the last ten years, there are four on one side of the issue and four on the other side with O’Connor (or sometimes Kennedy) in the middle.  O’Connor was the swing vote in the affirmative action case and the voucher case.


O’Connor wouldn’t be the swing vote if the answers to constitutional law were apparent from reading the document itself.  If you could simply look through the Constitution and get the answer to every question, then every decision of the Supreme Court would be 9-0.  There would be no need for a swing vote!  Some things are clear: you must be 35 to run for President.  But every case we read this semester does not fall into the category of just looking it up.  Instead, all the cases we’ll read will be ones where you can’t find the answer by reading the document.  Instead, the answer is completely dependent on the identity of the individuals who sit on the Court at a particular time in history.  The way things are is that the answers to these questions often pop out of O’Connor’s head.


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