Introduction and American Constitutionalism in Historical Perspective Introduction

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Con Law, David Richards

Fall 2005

Introduction and American Constitutionalism in Historical Perspective

1. Introduction

  • Constitution founded on conception that we have human rights and conception of human rights continues to evolve

  • Six Major Issues:

    • normative vision: what are human rights and which should be reflected in Constitution?

    • constitutional criticism: adequacy depends on how well it reflects HR

    • danger of faction: need to protect minorities

    • comparative political experience

    • political experience: took seriously past mistakes

    • constitutional supremacy:

  • Study of Constitution includes:

    • history

    • political science

    • comparative political science

    • democratic political theory

    • text

    • interpretive theory

2. History

The great historical division in Constitutional Law is pre and post-Reconstruction.

  • Sources of Constitutionalism

    • English Civil War (1640): first writings calling for written Constitution

      • Levelers propose agreement of people

      • Harrington, Oceana: separation of powers

      • Milton

      • Locke: governments only establish legitimacy by protecting rights

      • Britons ultimately adopted parliamentary supremacy and not written Constitution

  • Colonialism: Constitutional Idea Adopted in America

    • devotion to written Constitution based on Puritan ideology: Constitution as contract with government (covenant theology)

  • Articles of Confederation (1781)

  • Establishing of Constitution

    • Four innovations:

      • constitutional supremacy

      • federalism

      • separation of powers (Articles I, II, III)

      • judicial review

    • Madison was dissatisfied: tolerated slavery, no constraints on States

  • Reconstruction (1868—14th amendment)

    • Reconstruction amendments address lacuna of lack of rights protection at state level

  • 1870 to World War II: Reconstruction Amendments barely enforced

  • Post-World War II Sea Change

I. Constitutional Interpretation

1. Constitutional Interpretation by Judiciary

  • Marbury v. Madison

    • Facts: After lost election, Adams appointed many Federalist judges; commissions not delivered in time, and Madison refuses after he takes office

    • Marbury claims 1) there must be a remedy because his rights have been violated, and 2) the S.C. has original jurisdiction over his mandamus petition under Judiciary Act of 1789

    • Marshall holds:

      • where there is a right there is a remedy, but

      • the Judiciary Act is unconstitutional and cannot be enforced by the Court

    • establishes principle of judicial review over Acts of Congress

      • could have resolved through statutory interpretation of Act or Article III, but refused to

        • justifications:

          • popular sovereignty: Constitution approved in ratifying conventions

          • judicial role: Constitution is highest law (but he acknowledges that there might be political questions)

          • chamber of horrors

          • judicial oath

          • supremacy clause (???)

  • Practical Limits on Marbury:

    • Presidents can give other interpretations:

      • Jefferson refused to prosecute under Alien & Sedition Act

      • National Bank vetoed by Jackson on Const. grounds

      • Lincoln: said when he was elected would bar slavery in territories and let it be contested on diff. facts

      • Roosevelt urged passing of legislation of dubious Constitutionality and even outright resistance in Gold Clause speech

  • Cooper v. Aaron

    • Facts: school board sought to delay desegregation decree because of massive protest; Dist. Ct. allowed but CofA and SC reversed

    • Dictum: “federal judiciary is supreme in the exposition of the law of the Constitution”

2. Judicial Supremacy and the Democratic Objection

  • Political Theory and Constitutional Law: what institutions can we defend?

    • external criticism: how do you justify judicial review

    • internal criticism: in hard cases need theory to resolve them

  • Court-Skeptical Challenge (Thayer, Jefferson)

    • because judicial review threatens democracy should only be used when “clear mistake

    • should never be exercised in political questions

    • modern view: Rosenberg—politics would be less polarized without judicial review

  • Rights-Skeptical Challenge (Hand)

    • utilitarianism: because we only care about aggregate of pleasure and pain, we should not be sensitive to the claims of small groups of people; rights would qualify the aggregate

    • Hand therefore concluded that judicial review was illegitimate

    • Responses to Hand

      • Wechsler: legitimacy of judicial review based on whether argue from neutral principles; problem is does not directly address Hand

        • judicial review found in Constitution because of combination of Art. III and Supremacy Clause

        • prospective: must be willing to apply principles in future

        • retrospective: must be consistent with previous cases

        • argues Brown cannot be justified by neutral principles

          • what is neutral principle of Brown?:

            • whenever state denies fundamental rights it is potentially unconstitutional

              • but Brown was not limited to fundamental rights

            • race can never be a basis for classification

              • but would deny affirmative action

            • irrational prejudice cannot be the motivation for a law

              • this would allow affirmative action, but Wechsler was scared it would apply to gender as well

            • abridging associational liberty

              • but you abridge the associational liberty of those who don’t want to integrate

            • real debate now is between the second and third options

      • Dworkin:

        • rejects Hand’s premises: there are theories that justify rights

        • Rawls: First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others

          • difference principle: inequalities must still be to everyone’s advantage; cannot sacrifice the one for the many

        • how do great judges decide cases?

          • they look for fit, which never exists in hard cases (and they must always be aware of mistakes)

          • or they look to background principles

          • but principles only matter if arguing for the good

    • Post-Dworkin Positions (still rights-skeptical)

      • Ely: judicial review justified to the extent that it promote democracy

      • Originalists: fix the interpretation based on what founders had in mind at a particular moment

3. Historiography, Political Theory, and Interpretation

  • Denotation v. Connotation

    • denotative meaning: things in the world to which founder intended to apply words

    • connotative meaning: we take definition and then apply it to the world

  • Abstract Connotative Readings

    • sensitive to historical change:

      • commerce clause

      • right to be secure in property and person

    • sensitive to moral change:

      • cruel and unusual punishment

      • equal protection

Role of History

  • Jury Cases

    • Williams v. Florida

      • Facts: asked for 12-man jury and not six-man jury provided by Florida law

      • White looks at history:

        • common law tradition (12-person), SC precedent (12 person)

        • but Congressional debates: could have added language making it clearly 12, didn’t

      • connotative meaning: preventing oppression by the government

        • 6 person can do this as well as 12

      • goes with anti-originalist interpretation

      • Harlan’s dissent: Constitution must be read in light of history; while sometimes need to give a meaning to a word to adapt it to circumstances uncontemplated, but that is not the case here; also need not hesitate to overrule precedent where principles it announced are unworkable, but here there is no injustice

  • Bills of Attainder (Art. I s. 9, 10)

    • Lovett v. United States

      • amendment in appropriations bill requiring salary not to be paid to several named people

      • Black uses connotative meaning to find that this is bill of attainder: it is legislative punishment without a judicial trial

      • Dissent argues it is not criminal statute, does not say they are guilty of crime

    • United States v. Brown

      • Warren looks at connotative meaning: separation of powers

      • makes it crime for member of Communist party to be officer in a union

      • Majority: potentially criminalizes past behavior (having been member in past)

      • Dissent: it is a normal criminal law that will go through the courts

  • Contract Clause (Art. I s. 10)

    • Blaisdell

      • stay law passed during Great Depression

      • majority:

        • this is only staying debt, not extinguishing it

      • could also argue that need to take a connotative meaning that is sensitive to historical change

  • Richardson v. Ramirez

    • felon disenfranchisement challenged

    • Rehnquist’s textual and historical argument:

      • clause 2 did not provide punishments for disenfranchising felons, and many states at the time did not disenfranchise felons

II. Federalism

1. Federalist No. 10 and McCulloch

  • Federalist No. 10

    • three dominant interpretations:

      • Beard: economic interpretation

      • Dahl: democratic theorist

        • polyarchy is the key to thriving democracy (this doesn’t necessarily square with actual text)

      • Historically-based

        • Madison is rebutting Montesquieu’s belief that you need a homogeneous community and military imperialism for a republic

        • can have republic in America that will be large, pluralistic, commercial

    • text:

      • governments are full of factions—groups with a common interest adverse to rights of other citizens

      • destroying the causes of faction would involve destroying democracy, but representative government can control the effects

    • problems: he does not address superfactions, no evidence that representatives will really be as noble as he thought

  • McCulloch v. Maryland

    • McCulloch I: Constitutional under Commerce Clause to create a national bank? Yes

      • legislative practice: Washington chose it, Congress voted on it; willing to show deference because “great principles of liberty” not implicated

      • popular sovereignty: Constitution came from people not states—leads to more liberal interpretation of Commerce Clause

      • text: the word “expressly” had been used in Articles to limit Congressional power; also “necessary” is ambiguous

      • appeal to legislative rationality: need a responsive branch of government that can respond to democratic public intelligence (p. 96)

      • judicial role: it is a political question, should only monitor commerce clause in extreme cases

      • overall it is very deferential view: proto-rational basis test

    • McCulloch II: Can the state tax the bank? No

      • Maryland has power of concurrent taxation, but taxing the bank is undemocratic because Maryland government does not represent citizens of the US

      • this is beginning of negative commerce clause

2. Commerce Clause: Congressional Power (Art. I §8, cl. 3)

  • History

    • Articles of Confederation caused fears of Balkanized trade wars

    • Little federal regulation of commerce prior to 1887

  • Early Commerce Clause Congressional Power Cases

Broader Interpretation

Narrower Interpretation


Shreveport Rate



    • Gibbons v. Ogden: commerce affecting more states than one

      • FACTS: Gibbons licensed under federal statute, Ogden under state statute to operate vessels in NY waters

      • Marshall’s interpretation: “commerce affecting more states than one” (broader than just movement of goods, but less broad than “any commerce anywhere”)

      • says should not construe narrowly because constraints should come from political process, found for Gibbons

    • U.S. v. Knight (Sugar Trust Case) (1895): narrow interpretation

      • FACTS: dismissal of Government civil action under Sherman Anti-Trust Act of 1890

      • finds that manufacture is distinct from commerce; the transportation and buying and selling are incidental

      • must be direct connection to commerce

      • focus is on formal, logical approach rather than more realistic approach based on empirical evidence of impacts

      • also, suggestion that it is relying on negative commerce clause

    • Shreveport Rate Case (Houston E&W Ry. Co. v. United States) (1914): broad interpretation

      • FACTS: Texas setting proportionately lower rates for intrastate than interstates rail.

      • Congress can regulate instrastate rail rates that discriminate against interstate traffic because they affect interstate commerce

      • relies on necessary and proper clause

    • Swift & Co. v. United States (1905): broad interpretation—stream of commerce approach

      • FACTS: Sherman act injunction against price-fixing by meat dealers

      • commerce clause can reach even local activity if it is part of a current of Commerce among the states

    • Hammer v. Dagenhart (1918): narrow interpretation—cannot regulate production of goods not themselves harmful

      • FACTS: federal government banned goods made by child labor

      • court struck down, cannot ban goods from interstate commerce in order to control some aspect of their local production

      • Holmes: this is exactly what the commerce clause allows, does not matter what the side effect will be

  • New Deal Narrow Cases

    • both followed Railroad Retirement Board v. Alton Railroad Co.

    • Carter Coal (1936): no regulaton of production

      • Bituminous Coal Code regulating maximum hours and minimum wages

      • cannot regulate process of production

      • applies direct/indirect test from Knight

    • Schechter (1935)

      • could not regulate goods after production??? where does he get that???

      • challenge to National Industrial Recovery Act

      • could not impose regulations on hours and wages on slaughterhouses that did not then ship into interstate commerce

      • rejected the Shreveport Rate and Swift approaches

    • Frankfurter’s Criticisms:

      • text of constitution does not support

      • political theory does not support: democracy allows choosing new goals and purposes

      • precedents don’t support

        • cites McCulloch and Gibbons

      • history (???)

  • Change in Time

    • NLRB v. Jones & Laughlin (1937)

      • manufacturing in states is not immunized as long as there is a reasonable relationship, looks at quantitative economic approach

    • United States v. Darby (1941)

      • forbid movement of lumber in interstate commerce that did not comply with federal standards and impose maximum hour and minimum wage laws on lumber manufacturers

      • explicitly overrules Hammer, contradicts Knight, Carter

      • motive and purpose of the regulation are irrelevant: can always regulate economic activity with reasonable relationship to interstate commerce

      • purpose here is race to the bottom

    • Wickard v. Filburn (1942): outer limits of commerce clause rationale

      • challenge to penalty for overproducing wheat by a farmer with homegrown, home-consumed wheat

      • relevant to interstate commerce because of “market overhang” and because if everyone did it it would have large impact

      • outer limits of commerce clause: any economic activity anywhere can be regulated for any purpose so long as it might have some effect on economy elsewhere in the nation

  • Modern Cases

    • United States v. Lopez: Gun Free School Zones Act

      • invalidates Gun Free School Zones Act

      • distinguishes from Darby, Wickard

      • four-step argument:

        • not an economic activity, no express jurisdictional element, lacked formal findings as to substantial effect, link to substantial effect on commerce attenuated

      • slippery slope concern: could slide into education, marriage, etc.

      • O’Connor concurrence: we need two levels of accountability

      • Dissent: in modern world, education is an economic activity

    • United States v. Morrison: Violence Against Women Act

      • applies reasoning of Lopez: not an economic activity, no jurisdictional element, existence of Congressional findings alone not enough, link too attenuated

    • Gonzalez v. Wright: Medical Marijuana

      • majority relies on Wickard to overrule California medical marijuana law

      • but, Wickard maintained some exception for local growers

3. The Commerce Clause and Enforcement of Civil Rights

Title II of Civil Rights Act of 1964: prohibited discrimination if affects interstate commerce (commerce clause) or if supported by State action (14th amendment)

  • Heart of Atlanta Motel v. United States (1964)

    • discrimination by hotels and motels impedes interstate commerce and it is irrelevant that Congress’ purpose was to legislate against discrimination

  • Katzenbach v. McClung (1964)

    • applied Civil Rights Act to a family restaurant (aggregation theory from Wickard)

  • Debate: should Congress have done this under commerce clause, or should they have pushed to expand interpretation of state action?

4. Commerce Clause: State Power (Negative Commerce Clause)

Art. I § 8: Dormant Commerce Clause; Art. VI: Pre-Emption under Supremacy Clause; Art. IV §2: Privileges and Immunities

  • Origins of Dormant Commerce Clause

    • Gibbons v. Ogden II (1824)

      • suggests that state may not have had power to legislate even in absence of federal statute

      • strikes down as pre-empted

    • Wilson v. Black-Bird Creek Marsh Co. (1829)

      • company authorized by Delaware state law to build dam across river does not come in conflict with commerce clause because this is not interstate commerce

  • Early Tests for Negative Commerce Clause

    • Cooley v. Board of Wardens (1851): diversity v. uniformity (national v. local)

      • Pennsylvania statute regulating pilots (post-dated Congressional statute saying existing state regulations can continue)

      • there are subjects within exclusive control of Congress under the Commerce Clause and Congress cannot consent to give that power to the states (no longer good law)

      • pilots, however, do not need to be exclusively regulated by the states because it is a subject that allows for diversity

    • DiSanto v. Pennsylvania (1927): direct v. indirect

      • found that license fee on travel agents selling international tickets was a “direct burden” on interstate commerce and unconstitutional

      • test criticized as too mechanical, uncertain, and unrealistic

    • Legitimate v. Illegitimate Motives

      • Buck v. Kykendall (1925)

        • struck down denial of certificate to start interstate rail line

        • said would have been acceptable if motive was safety, but motive here is simply protectionism

        • some purposes so contrary to role of constitution they are per se unconstitutional

      • Bradley v. Public Utilities Comm’n

        • here, purpose of denial was to promote safety and was therefore legitimate

  • Privileges and Immunities Clause Restrictions on State Power (Art. IV)

    • Differences between privileges and immunities and commerce clause: p. 317, come back to this

      • privileges and immunities does not apply to corporations, only applies to fundamental rights, cannot be overruled by Congress
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