Constitutional
Law Class Notes
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
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!