Constitutional Law Class Notes 1/8/04


We started Property with Con Law!  Whaddya know!


All our upcoming classes for the next two weeks are related to the Commerce Clause, found in Art. I § 8.


We’re going to see a Commerce Clause question that Foley is giving to his Legal Writing students.  This will serve as real-world constitutional question of the kind that we’ll be reading in this class.  Think about this problem in light of Lopez which we’ll be reading for Monday.


Foley’s exams are essay-based and sometimes take-home.  What he’s looking for in exam answer is the same stuff he looks for as a Legal Writing instructor.  He wants good writing!  He wants clear arguments.  You can use the knowledge you gain from Legal Writing to supplement what we do in this class.


The Second Amendment


Does Congress have the power to ban machine guns?  It depends on how you interpret the Second Amendment.  Some say it applies to individuals, while others say it only applies to militias.


Just who takes these opposing points of view?  There are interest groups with strongly held political views and they don’t all agree.


Foley thinks there would be a way to read Miller in a way that’s not so sweeping as the way Chemerinsky wants to read it.  The gun in Miller was a sawed-off shotgun, not just any gun.  The Court said that you have no right to own a gun that no real military could own.  That’s actually a partial acceptance of the view that the meaning of the Second Amendment is controlled by its militia function, but Foley says it’s not as sweeping as Chemerinsky claims.  Maybe another kind of weapon that does have a military function could be the basis of an individual rights claim.  You could claim that you have an individual right to own a weapon that has a militia function.


One Circuit said that there’s no individual right to own a machine gun, but Foley sees this as an extension of the Miller precedent, not necessarily as following that precedent.


As lawyers trying to find out the answer to the question of whether the government has the power to ban machine guns, we look to judicial precedent.  Miller is the most important precedent because it’s the most recent case to come out of the United States Supreme Court.


Assume for the basis of argument that the Miller precedent does not exist.  The Miller case is old, and there has been an effort both inside and outside the judicial system to overturn Miller.   In fact, the current Department of Justice has informed the United States Supreme Court that the current government believes that Miller is wrong.  The Supreme Court has neither accepted nor rejected this argument, but there is the sense that the Supreme Court might someday revisit this issue as a case of “first impression” as if Miller didn’t exist at all.  That would be a rejection of stare decisis.  Let’s suppose this happens.


The United States government in all its agencies is represented in litigation by the Solicitor General, who works within the Department of Justice.  There is a long history of the relationship between the Supreme Court as the representative of the judicial branch and the Solicitor General as the representative of the executive branch.  By tradition, the Supreme Court has seen the Solicitor General as a member of the Supreme Court bar and thus having a close relationship with the United States Supreme Court.


What’s the relationship of law to politics?  This is a big question we’ll need to consider.  Is figuring out what the law is exclusively a political judgment, or is it independent of political judgments?  Even if you think the judges are purely or partly political, you can’t behave in court as if you think so.  You might have to tell your client that, but you can’t say it in court.


“Being a good lawyer means being able to operate on different levels or planes with respect to the same issue and take entirely different perspectives on the same issue.”  There is both an “internal” perspective and an “external” perspective.


When we adopt the “internal” perspective, we play the game.  We get into mode.  We use the language of the law and cite precedent.  We do legal reasoning that’s independent of political judgment.  You kind of “put on your lawyer hat”.


The “external” perspective is more of a critical appraisal of the situation.  You look at the legal system from the outside and ask whether the judges are doing law or whether they’re just doing politics.  This is the perspective where you get cynical and ask “what’s really going on”.


“Don’t leave your common sense at the door when you walk into this classroom!”


Was Bush v. Gore entirely law?  Entirely politics?  What was the mix?  Did the justices know what they were doing?  Did they know why they were doing it?  Why were they doing it?


Everything we do in Con Law has this same character, though maybe it’s not as extreme as Bush v. Gore.  Stuff can be controversial legally because it’s controversial politically.


“The great task of Con Law is figuring out the relationship between law and politics.”


The machine gun case


Say you’re a law clerk working in Justice O’Connor’s chambers.  How do we try to answer the question?


If I have a strong subjective view of an issue, I can kind of bend words around to make them mean what I want them to mean.  Everyone is going to have a subjective political view of these issues.  But if I’m a Supreme Court Justice and I can read the Second Amendment to support any subjective view I want, is that how I ought to carry on business as a Justice?


Begin with the stark contrast between originalism and nonoriginalism.  Do these categories correlate with objectivity/subjectivity or modern values/traditional values?  Not necessarily.  Even judges who reject original intent as a guiding light would say that they’re not entitled to impose their own personal and subjective values on their interpretation.  Whatever the judges find, they must be objective, if only in a different way (looking at the will of the people or the Constitution as a whole, for example).


The President, when deciding to sign or veto a law, can legitimately say that because he was elected by the people he has been empowered to exercise his own independent judgment of what is right or wrong.  If the people don’t like the President’s judgments, they can vote him out of office.


Every Justice throughout history has disavowed the power to read the Constitution just any way they like.  Being appointed as a Supreme Court Justice doesn’t give them the right to impose their subjective views.


Justice O’Connor in any event would think: it’s not just what I personally believe about guns, it’s also what the best reading of the text is.


A matter of interpretation


How do we figure out the meaning of the Constitution, then?  We have these two completely different ways of going about doing it, and it’s up to me to make the choice of how to interpret it (original intent versus contemporary values).


We have an unclear document.  It would be a lot easier to deal with if we had clear directions for dealing with it.  But we don’t have a clear method or rule to follow in dealing with the document.  This is a radical lack of clarity!


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