Constitutional Law II

3 September

• I am seat 35
• Office is 7105. 262-1695. wlchurch at wisc and fpafff at gmail
• Seems like mostly a 50-50 split in terms of materials
• F: 2x fed clerking (incl Rhenquist). Then OLC w/Rhenquist. also two DOJ jobs (Johnson administration, in civil rights: the first Title 7 case) (early 1980s, that was OLC)
• L: no practice con law experience. But was legal advisor to supreme court of Afghanistan.
• Expect about 20 pp/class.
• There are 34 recitation cases. They're the backbone of the course. They're selected not for their importance but for their pedagogical value.
• Recital:
  1. The facts: these can be tricky, in the sense that they're often quite abstract at the SCOTUS level. But they're still important, because we can get arguments right out of them.
  2. Issues: why is this case in the materials? what is the important thing here? Usually this is not subtle. This isn't an issue-spotting course: it's not so much spotting the issue that's important, it's what you do with it. Still, mentioning an additional issue never hurts.
  3. Holding: this is usually quite simple too. Yes or no, basically, assuming you phrased the issue in the form of a question.
  4. Reasons: what reasons did the court offer? Often the court merely pretends to offer a reason. Sometimes we'll get a full explanation, but sometimes there's no true reason apparent. The use of precedent, for example. Sometimes we see the same cases cited on both sides. So if there's a rationale but not a reason, go ahead and say so.
  5. Who should win: pick a side. There will be argument. Usually the question is "who should win, in the time of the case?" Sometimes it will be present case. The goal here is to understand what it is that causes us to have this opinion as opposed to another one. How can we persuade others that they should agree with us?
• We can debate cases if we want. We can debate them if we want, or one another. Every so often, the two of them debate.
• The exam will be just like we'd expect. Open book, 3 hrs, generally 3 questions (one graded by F, one by L; these will be identified on the exam; then one graded jointly). Word limits (~600 words/question). Typical question: here is a case (from the materials, from elsewhere, from newspapers)... usually not too long. Give your reaction to the case-- usually as an advocate, and sometimes as a judge. Plaintiffs will be curved against plaintiffs, and defendants against defendants.
• A recurring theme for us (and not just for Con Law II): when we reach a result (and the court always does), we need to show not necessarily the reasons that persuaded us, but the reasons that will persuade others. How is this done?
  • Start with the text (and justices disagree about the extent to which it is malleable, etc.). You have to at least say you're following the text, or nobody will listen. Many times the text gives arguments on both sides, or is ambiguous, or is a bit out of date. 1A-10A are now 220 years old, after all.
  • Look at the context behind the text. Does the historical setting inform the definition of the text? Is this relevant? Even if it is, can we ascertain it? What did these words mean to the people who drafted this text? Quoting the federalist papers in your favor is nice. The founders were wise people, after all, and we should honor them. It helps us explain the constitution-- otherwise we're guessing what it means. But they were all men, they're long gone, and they did make some mistakes (about slavery, e.g.).
  • Look at the history of this provision. How have Presidents and other lawyers interpreted it.
  • Precedent. Obviously. Constitutional law is not common law, of course, but we can justify our answers to current question by saying that previous decisions ordain it.
  • Policy. L says this drives every case; F is a little more cautious. But no matter what, it's very important. Why is the world better if this result is reached?
• Here's what we'll cover:
  • Con Law I: that's subject matter for this course. Truthfully, that's behind pretty much all cases. Judicial review, the separation of powers. These issues are inescapable. You need to acknowledge these arguments, both as a reciter and on the exam. We won't wallow in them though.
  • Much of this is not WI law. There's a teensy bit of other state law. But really, there's just not time for much state stuff. State constitutional law gets short shrift. It's important stuff, but if you can be adept at US con law, you'll also be adept at state con law.
  • 1. The start is difficult and amorphous. Terms (like "due process") are poorly defined, if at all. But due process and fundamental rights are the first 30% of the course. We don't know why certain rights are fundamental, and that's frustrating, but it's a big part of the reality.
  • 2. Middle 30%. This is sort of the core: equal protection, particularly with respect to race discrimination (and some other categories). Here we've got a single, more organized, subject. The cases are still complex and controversial, but the subject matter is more coherent.
  • 3. First amendment. This gets special attention in the last 30%: speech, press, religion.
• When the US Constitution was drafted, it was a counterpoint to the Articles of Confederation (very weak central government: no federal courts, no president, states could veto congressional statutes, etc.). That government was too weak to be effective.

  The new convention met to solve this problem. The first thing they did was to close the door (unconstitutional by today's standard), but if they had not acted in this high-handed arrogant way, they might not have achieved such a brilliant result.

  When the drafters released the document, they expected the public to be awed. But the public was skeptical: why are there no individual rights? It's all federalism and separation of powers and limited government. We want individual rights in there. The drafters said individual rights are meaningless if the government is unrestricted. Limited government, they said, eliminates the need to protect individual rights, because it's government that threatens rights. And if you have a strong government, then it can just ignore whatever rights are on paper anyhow. So that's why they didn't put them in.

  Rather than re-write the constitution, they instead promised that once it's ratified, the first congress would enact a bill of rights. So the bill of rights was not a precondition for establishing the government, but the first congress did immediately proposed to amend the constitution, and the states immediately ratified them. So in a sense those amendments are really a part of the original constitution.

  We'll cover 1A, 2A (a little), not 3A (obscure), not 4A (this is a big issue, but you get it in Crim Pro), some 5A (mostly covered elsewhere, but we do cover the federal due process clause), not 6A (elsewhere), not 7A. In 8A, we'll cover the death penalty. No 9A or 10A. 13A, 14A, and 15A. Those are biggies for us.

  13A is the constitutionalization of the emancipation proclaimation. It's surplussage, in a sense: the constitutionality of slavery wasn't an issue any more. But even though slavery isn't much on the table these days, but this might address "badges" of slavery, like racial discrimination, so it has some current vitality.

  14A provides that citizens of the US get the same privileges and immunities. But we'll focus mostly on the first section. Due process for states. And also equal protection for states (there's no such federal clause, but the federal due process clause incorporates this, so it governs the federal world as well).

  15A no race discrimination in voting. We'll deal with this some.

  We'll touch on 19A: voting rights for women.

  And that's about it.

• Some notes on language.

  The constitution says that no government can deny equal protection. But every law denies equal protection in some way.

  Of course, that's not what it means. What it means is "we don't like statutes that discriminate on a bad basis." So then what is a bad basis? Well, race would be one. "Suspect areas/categories" get looked at when a distinction is based on some artificial kind of basis.

  Once an area is designated as being suspect, it gets strict scrutiny. That means it's very likely to fail. Unless it's affirmative action-- that one seems to persist. The way you can pass strict scrutiny is to show that there's a compelling state interest in perpetuating the discrimination. The compelling state interest must be narrowly tailored to correct whatever problem it addresses. So it's a 4-part analysis:

  1. Suspect categories
  2. Strict scrutiny
  3. A compelling state interest
  4. Narrowly tailored
  You get this all the time in equal protection, but also in some due process cases and fundamental rights cases. If the court identifies a right as fundamental, suddenly the strict scrutiny language comes right back at us.

  Generally nothing gets said about why some category is suspect, or why a right is fundamental.

  If you're not in strict-scrutiny land, all you need is a rational basis. Which means it's very likely to succeed: the court defers to legislative policy. And as a rule, legislators are not irrational-- no legislation is so stupid that a rational legislator could not vote for it.

• Know Boumediene and Hughes for next time. Up to p. 41, in other words.
• Think about 2 issues in Boumediene:
  1. Habeas corpus: do the federal courts have jurisdiction over a case where the congress, the president, and the pentagon say the court does not have jurisdiction? That's principally a con law I issue, but it might be the most important issue in the cse.
  2. Procedural due process: detainees are actually given a sort of quasi trial (not like a jury trial with compulsory process, etc.). Is it adequate under the due process clause?