Constitutional Analysis

The different levels of scrutiny given by the Supreme Court to Legislation or Government actions with a focus on

Commerce Legislation

Levels of Scrutiny• Rational Basis – for economic regulation – law or

action needs only to have some rational basis for it to be held constitutional by Court.

• Intermediate Scrutiny – gender discrimination, public benefits . . . . Law must further a substantial government interest and be the least restrictive means of doing so.

• Strict Scrutiny – voting, race, marriage, 1st amdt rights, fundamental rights . . . Law or action must further a compelling governmental interest and be precisely tailored to further that objective.

• It has been suggested that social structure and order are the underpinnings of the operation of the law rather than of values and morals.

• In his famous book On Liberty, John Stuart Mill indicated nearly 150 years ago that the only purpose for which power could properly be exercised over any individual in a civilized society against his will was to prevent harm to others.

• Mill suggested that a law that limited or required folks to act for their own physical or moral good could not be sufficient for the law to act. In other words, a person cannot be forced to act or refrain from acting simply because it would be better for him or would result in happiness or because others might think it wise to do so. Mill would exclude laws regarding children and those without capacity.

• The originalist approach• The originalist approach aspires to interpret constitutional text in light of original intentions

or understandings of the founding fathers who wrote the Constitution. Advocates of originalism, such as Justice Antonin Scalia, are centrally concerned with discovering the subjective intentions of the figures who wrote or framed particular constitutional provisions. They tend to focus on the original public meaning or understanding of a constitutional provision for the generation that ratified or amended that provision. Originalism, of course, has its own liabilities, including determining what counts as evidence of intent, whose intent counts, and whether the promulgated intent should be abstract or concrete. Accordingly, one common criticism of originalism is that an originalist, while claiming to interpret a provision based on the original intent behind it, actually will pick and choose from a variety of sources to meet the meaning he or she wishes to give it.

• We will discuss the role of morality in more detail next week, but after your initial written work about the list of rights you think are important for the Island Nation of Tagg, it is important to refine the list or to consider the list you have developed in light of what you now know about fundamental values. As you refine your list, you should consider the impact of those rights on diverse populations (consider religion, race/ethnicity, gender, sexuality, etc). Also, you should consider the issues of morality discussed in this unit in relation to your list.

• If you were to prepare a flow chart with essential values and morals that ends with the individual rights that you believe implement those rights., what would it look like? Explain the bases for your decision and asses the moral and ethical implications of these individual rights.

• Consider what moral issues you want to cover in the Statement of Individual Liberties and how you will determine the specific right that covers the moral issue. A moral issue might be integrity or respect or protection of diversity.

• In this Unit, you have observed the early discussion of the interaction of values and rights and the distinction between the greater good and individual liberties. The interesting part of the discussion is that which analyzes the greater good.

• For example, in the Amistad case and in the case of Frederick Douglas’s speech, those in power would suggest that the economic welfare of the society, especially Southern society, was the greater good and that everyone benefitted from that greater good.

• Therefore, the rights and privileges should be extended only to those who could possibly benefit from that greater good. Although much progress has been made with regard to individual liberties and the treatment of people of color and women, isn’t the same argument true today with regard to economic differences? Isn’t there a subculture of poor people who do not share in the greater good or the rights associated with that greater good?

• Historically there seems to be no distinction between law and morality. There are passages from ancient Greek writers, for example, which suggest that the good person is the one who will do what is lawful. It is the lawgivers, in these early societies, who determine what is right and wrong. But it is not long before thoughtful people recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal. Instructors could use the Lucky Spoon Discussion Board hypothetical to explore the topic of what is legally and morally required and how compliance with on requirement doesn’t mean that compliance with the other requirement has been met. Because there is an interrelationship between what is ethically and legally required, neither can be viewed in isolation from the other. General discussions of this type would be a nice segue to the Amistad case.

• The facts and procedural history of the case United States v. Amistad, is somewhat difficult and convoluted. Therefore, in discussing this topic at Town Hall, instructors should emphasis the story of the Amistad where the Africans escaped their chains, killed most of their capturers, and the boat was found off the coast of New York. In discussing the ethical, legal, and philosophical findings of this case, instructors should emphasize that the Supreme Court affirmed the freedom of the slaves, under the eternal principles of justice and international law.

• After discussing the story of the case and the principles underlying the case, instructors should explore the contradictions of this case with the practice of slavery at this time in U.S. history. Additionally, instructors should find time to discuss the Civil War Amendments that remedied slavery, the setbacks that resulted from the Jim Crow laws, the Civil Rights Act of 1964, and Voting Rights Act of 1965, that remedied segregation and provided for full political participation.

• The doctrinalist approach• The doctrinalist approach searches out past interpretations of the Constitution as they relate

to specific problems and tries to organize them into a coherent whole, fitting the solution of the current problem at issue into that whole. Doctrinalism gives a central place to the principle of stare decisis, seeking to extend received decisions and understandings in incremental fashion to cover new cases and problems as they arise. In doing so, it attempts to preserve the continuity of the common law even if effecting change. This method is often used to teach constitutional law in American law schools, where casebooks often are organized topically. Doctrinalism, like all approaches, has its own difficulties. For example, textualists argue that doctrinalism distracts attention from the Constitution itself, placing too much emphasis on commentary on the text. For example, Justice Felix Frankfurter wrote, "the ulimate touchstone of constitutionality is the Constitution itself and not what we have said about it." Another criticism, levied by jurists like Antonin Scalia, is that doctrinalism allows for too much judicial discretion.

• The developmentalist approach• The developmentalist approach builds on doctrinalism by accepting the value of incremental

additions of judge-made doctrine, but goes further by enlarging the interpretive arena to include broader historical events, such as informal practices, usages, and political culture. Developmentalists reject both the notions of a static constitution and of "The Moral Constitution", and instead tend to focus on "how meaning has evolved." Chief Justice Earl Warren exemplified this when he said the Constitution ought to be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society." Accordingly, proponents of developmentalism often argue the theory of the Living Constitution, which premises that the Constitution is, to some degree, dynamic. Because of this, however, developmentalism can be assailed on many of the same points as doctrinalism. For example, it does little to advance any goal of stability, for by its very nature it commits itself to the legitimacy of what it calls "constitutional change" not merely from the past to the present but also from the present to an unknown future. As such, a common criticism is that it makes the Constitution "mean nothing," because it holds that it can mean "anything."

• The contextualist approach• Like originalism and textualism, the contextualist approach is concerned with an original

meaning of the text itself to those who wrote the text, but instead of a subjective intent, it seeks to examine the broad context in which the provision at issue was promulgated, arguing that, in some important respect, the provision can only be understood relative to its context. This context can be facial -- that is, examining why the provision is located where it is in the whole document, or it can be historical -- examining the broad and long history behind the provision to determine the broadest possible intent. This was the main theory of interpretation that the Supreme Court used in the 1880s through the 1920s, resulting in such decisions as Plessy v. Ferguson (upholding racial segregation because the broad historical context of the Thirteenth Amendment and Fourteenth Amendment did not support the idea that they were intended to prevent states from separating races), Lochner v. New York (striking down minimum wage laws because they violated the Fourteenth Amendment's contextual "general right to make a contract in relation to his business"), and Bailey v. Drexel Furniture Co. (striking down a tax on child labor because the context of Article I of the Constitution was such that the framers intended taxes not to function as regulations).

• The structuralist approach• The structuralist approach proposes to decide hard cases by looking for guidance in the

Constitution's general arrangement of offices and powers. In so doing, it is related to facial contextualism. That general arrangement might be characterized as a form of democracy or representative, deliberative, or constitutionalist government. This approach differs from textualism or strict constructionism because it notes that none of the Constitution's principal structural ideas, such as separation of powers, checks and balances, federalism, democracy, or fundamental rights, is expressly mentioned in the text. Proponents of structuralism explain and justify their decisions by advancing claims about the proper understanding of constitutional structure. Chief Justice Salmon P. Chase advanced such claims when examining in Texas v. White what deference ought to be given to decisions of Confederate states' courts once the American Civil War was over. Chief Justice John Marshall also advanced a structuralist outlook when discussing his conception of federal-state relations in McCulloch v. Maryland. Still, structuralism lends itself to opposition which argues that it is too subjective, without any formal basis for making its claims because it lacks textual, contextual, or historical support.

• Legal Interpretation and Literary Interpretation• Takes ways to interpret literature and applies them to legal opinions and statutes, and

conversely, tries to see if ways commonly used to interpret the law can be useful in literature.• One of the most clear expositions of the intellectual trends in this area are laid out in Richard A.

Posner’s book, Law and Literature, 1988, Cambridge: Harvard University Press. • Posner criticizes literary deconstruction as largely inapplicable to legal texts, as such texts are

political documents and by their very nature, are designed to command particular behavior and to communicate particular ideas, while literature has no such mandate.

• Posner argues that the problem of determining a legal text’s original intent is not as important as argued by Scalia et al., as the words of the text itself provide much of the clue to its interpretation and we must assume statutory law was intended to mean what it says, and for any ambiguities determined later through litigation or further legislative amendment.

• e.g. The Const’s mandate that a president be 35 years of age – is a clear mandate – why else would a specific age be set out? It would not be logical to argue that at the time of the Framers, 35 was akin to 50 years of age today, and so 50 in 2009 should be the mandatory age for assuming office. It would not make sense because, as a political document setting the boundaries of our government, certain demarcations or bright line rules had to exist or the people would be hopelessly embroiled in continual controversy. Law must set limits – age 18 as the age of majority, for example. Thus, the different purposes of law and literature call for different styles of interpretation.

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• Interpreting the Constitution of the United States• Throughout the history of the United States, courts have used a wide variety of theories of

judicial interpretation to construe the Constitution of the United States, including textualism, originalism, strict constructionism, functionalism, doctrinalism, developmentalism, contextualism (historical or facial), structuralism, or even a combination of several of these schools of thought. As examples, some jurists have interpreted the Constitution based on their philosophical outlook that the Constitution is a "Living Constitution," while others have interpreted it as "The Moral Constitution".

• [edit] The textualist or strict constructionist approach• The textualist approach to interpreting the Constitution, sometimes called strict

constructionism, insists on the literal meaning of a provision in the face of contrary claims that the text must mean more or less than it expressly says. This approach appeals to the promises of simplicity and determinacy. For example, Supreme Court Justice Hugo Black insisted that the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" meant exactly that, "no law."

Commerce Power

• Article I, Section 8, Clause 3 – Congress may regulate “commerce with foreign nations and among the several states and with the Indian tribles.” Known colloquially as “the Commerce clause.”

• What is “Commerce”? – In Colonial times, “commerce” meant “intercourse with” or “dealings with” another – e.g. interaction.

Commerce Power

• This makes the clause quite an expansive delegation of power to Congress.

• In Gibbons v. Ogden, 22 U.S. 1 (1824), Chief Justice Marshall defined “commerce” as “every species of commercial intercourse . . . which concerns more states than one” and includes pretty much any activity involving or affecting two or more states.

• Note: Courts must define vague terms.

Commerce Clause

• Includes traffic or transportation, even where no commercial activity is involved e.g. traveling across state lines. e.g. Interstate transportation of liquor for personal consumption, women for immoral purposes (not necc. Prostitution) (“the Mann Act”) and interstate transportation of stolen vehicles are all interstate commerce. Includes even electronic communication, insurance sales, TV.

Commerce Clause

• The Supreme Court has sustained congressional power to regulate any activity, local or interstate, that either itself or in combination with other activities has a “substantial economic effect upon,” or “effect on movement in” interstate commerce. Wickard v. Filburn. Congress can control a farmer’s production of wheat for home consumption. Rationale: Cumulative effect of many instances of such production could be felt on the supply and demand of the interstate commodity market.

Commerce Power• The Supreme Court has made it clear that the power of

Congress to regulate commerce, although very broad, does have limits so as not to obliterate the distinction between what is national and what is local. To be within Congress’s power under the Commerce Clause, a federal law must either:

• Regulate the channels of interstate commerce.• Regulate the instrumentalities of interstate commerce and

persons and things in it.• Regulate activities that have a substantial effect on interstate

commerce.• Question: Can you think of anything that does NOT meet this

definition?

Commerce Power

• Intrastate Activity – intra – Latin meaning within – inter – Latin for between.

• When Congress attempts to regulate intrastate activity under the third bullet point (substantial effect on interstate commerce), the Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. Gonzalez v. Raich, (2005) -

Commerce Clause

• Gonzalez upheld regulation of intrastate cultivation and use of marijuana (permitted by state law for medicinal purposes) because it was part of a comprehensive federal program to combat interstate traffic in illicit drugs. However, if the regulated interstate activity is noncommercial and noneconomic, it cannot be regulated under the Commerce Clause unless Congress can factually show a substantial economic effect on interstate commerce. See, e.g., United States v. Lopez, 514 U.S. 549 (1995) – federal statute barring possession of a gun in a school zone is invalid; United States v. Morrison, 2000 Sup. Court case holding that a federal law designed to help victims of gender-motivated violence is invalid.

Commerce Power• Power to regulate commerce is shared with the States to some

degree.• While the Supremacy Clause makes federal law supreme over

state law, so if a state law conflicts with a federal law, the state law will be void. Congress may also preempt an entire area of regulation, preventing the states from acting in that area.

• Tricky Part: Although Congress’s commerce power is nonexclusive, the states’ power to regulate interstate commerce is restricted by the negative implications of the Commerce Clause, even absent federal legislation – the states generally may not discriminate against interstate commerce. But, Congress is not so restricted, and can allow the states to adopt legislation that would otherwise violate the Clause.

Commerce• Example: A state imposed a 3% tax on out –of-state

insurance companies for all premiums received from insuring residents of the state. No similar tax was placed on in-state insurance companies. Although such a tax would ordinarily be held invalid under the Commerce Clause because it discriminates against interstate commerce – the tax here was upheld because Congress had adopted an act permitting the states to regulate insurance in any manner, as long as the state regulation did not conflict with a federal statute specifically regulating insurance. (2005).

Commerce Clause• State Regulation of Commerce in the Absence of

Congressional Action – • If Congress has not enacted laws regarding the subject, a

state or local government may regulate local aspects of interstate commerce if the regulation: a. Does not discriminate against out-of-state competition to benefit local economic interests; and is not unduly burdensome (i.e. the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation). If either test is not met, the regulation will be held void for violating the Commerce Clause (sometimes called the “Dormant” or “Negative” Commerce Clause.

Commerce Clause• Discriminatory Regulations – State or local regulations that

discriminate against interstate commerce to protect local economic interests are almost always invalid.

• A state cannot place a surcharge or out-of-state milk to make that milk as expensive as milk produced in the state.

• Regulations Requiring Local Operations – usually invalid• e.g. If state required all businesses to produce melons in

state and all businesses that purchase melons from local producers to wrap the melons in state, law would be invalid.

• Can’t prohibit a landfill from accepting out-of-state garbage. But, state can impose surcharge on out-of-state nuclear waste.

Commerce

• A discriminatory state or local law may be valid if it furthers an important, non-economic state interest (health, safety) and there are no reasonable alternatives. E.g. prohibit certain fish where no other way to prevent contamination of water supply. Congress can’t prevent state from imposing fair age restrictions. But, it has power to require states to provide unpaid family leave.

Commerce• Any business open to interstate travelers or uses products shipped in

interstate commerce is covered. Civil Rights Act of 1964 barring racial discrimination in places of public accommodation was a proper exercise of the commerce power.

• Clause applies to state action only – but private individuals can be held liable if performing a public function. e.g. Running elections. Judicial approval of actions (discriminatory real estate contracts). Peremptory Challenges to jurors. Discriminatory law enforcement. Contra: A state liquor license to a private club that imposes racial restrictions is not sufficient state action to bring activity within purview of commerce regulation.