Chapter 5 is about the fourth main source of law: the United States Constitution.
Technically, the fourth main source of law is both the federal constitution and
the state constitutions, but this course is too brief for us to learn anything about
the state constitutions. Instead, we will try to delve into the federal constitution
a bit and understand how it affects U.S. law a bit better. In law school, you will
take a whole course on constitutional law in your first year as a law student. We
have one chapter.
1
Before the constitution was drafted or even imagined, the United States were
governed by a different document called the “Articles of Confederation.” The
Articles of Confederation were written in 1776-1777, and became the working
constitution, even though the weren’t ratified by the 13 colonies until 1781.
Ratified means approved. When a constitutional document is RATIFIED, it
goes into EFFECT. So the Articles of Confederation went into effect in 1781.
They were replaced by the U.S. Constitution in June of 1788.
There were two main problems with the Articles of Confederation. First, the federal
government had no ability to raise money. Second, the States were imposing
import taxes on each others’ products.
The so-called “Philadelphia convention” met in May 1787 with the intention of
MODIFYING the Articles of Confederation to address these two problems. But
after discussions had continued for a bit, most of the delegates began to feel that
it would be better to write a new constitution from scratch, and to significantly
change the structure and powers of the U.S. federal government. Initially, they
decided to keep their discussions and debates secret, so that all the delegates
could speak freely about the wide-ranging possibilities for how the new
government could be structured.
2
Go straight to this:
In order to persuade the states, and especially the anti-federalists, to agree to the
creation of a national government that would have the power to tax, the power
to raise an army, the power to pass laws, and the power to regulate interstate
commerce, the framers of the constitution deliberately made the federal
government WEAK in two important ways. One, each of the three
BRANCHES of the federal government would have check and balance controls
over the other two. Essentially, this meant that in order for the federal
government to take some action or pursue some policy, opinion would have to
be relatively unanimous among the three branches that such action was a good
idea. Squabbling would create INACTION. ACTION would require unanimity,
or something close to it.
Article I created the U.S. Congress, Article II created the office of the president, and
Article III created the U.S. Supreme Court.
3
Go straight to this:
The other way the framers of the constitution ensured that the new federal
government would be relatively weak was by making it a government of
ENUMERATED POWERS. The Tenth Amendment to the U.S. Constitution
says, in effect, that if they (the Framers of the Constitution) forgot to give the
national government a power, then by default it DOESN’T have that power and
basically CAN’T EVER GET it. That power will forever belong to the state
governments and/or to the people themselves.
4
Go straight to this:
Many people are not aware that the famous “Bill of Rights” – the first 10
amendments to the constitution – were not part of the constitution in the
beginning. The Bill of Rights did not become law until December 1791. That’s
3 and a half years after the Constitution took effect!
During the original Philadelphia Convention, James Madison proposed that a Bill of
Rights be added to the Constitution to address many of the anti-federalists’
concerns that any national government would soon become too powerful.
Madison’s proposal was to guarantee certain rights of the people right in the
Constitution. However, the federalists, including Alexander Hamilton, argued
strongly against this. They believed in the British system of common law which
did not define or quantify natural rights, but instead asked courts to decide
individual cases and allow legal principles to build up out of those actual cases.
The Framers of the Constitution couldn’t agree whether such a bill of rights should
be INCLUDED or EXCLUDED so they TABLED the issue, promising to bring
it up again when the first Congress convened.
The contents of the Bill of Rights was heavily influenced by at least four
documents: George Mason's 1776 Virginia Declaration of Rights, the 1689
English Bill of Rights, works by English philosopher John Locke during the
Age of Enlightenment pertaining to natural rights theory; and, to a lesser extent,
the much earlier English Magna Carta of 1215.
5
We will learn a bit more about amendments 1, 5 and 14 here in chapter 5. We will take a
closer look at amendments 4 and 6, and some additional aspects of amendment 5, in
chapter 7. But before we can turn our attention to Amendments 1, 5, and 14, we need to
look at a provision of the constitution itself: The Commerce Clause.
5
Go straight to this:
The Commerce Clause consists of just 16 words in Article I, section 8 of the
Constitution – the Article in which the powers of Congress are enumerated.
Your chapter doesn’t include the last 5 words but you can see them in Appendix
A at the back of the book, where you have the whole constitution.
(Read the words.)
The interpretation of these 16 words by the federal court system has changed a lot
since the Constitution was written. Much of the federal government’s current
authority to regulate business in various ways is based on the court’s
interpretation of the Commerce Clause over the years. The modern
interpretation of the Commerce Clause dates to about 1937. So for the first 150
years of our nation’s history, the federal government was a lot weaker and more
limited than it is today. There was a big step-up in the powers of the federal
government during the Great Depression. We’ll get to that in a minute.
6
Go straight to this:
1. The negative or dormant aspect of the Commerce Clause is the implication that
if the states mess with interstate commerce, they will get in trouble. This is not
stated in the commerce clause, but it is implied. That’s why it’s called the
“dormant” aspect of the Commerce Clause. It’s called the “negative” aspect
because it tells the states something they CAN’T do. The Negative or Dormant
Aspect of the commerce clause was the threat that any state law that
discriminated against interstate commerce would be struck down as in violation
of the U.S. constitution. In the hierarchy of law, the U.S. constitution wins. So
if you pass a state law that violates the U.S. constitution, it will be struck down
and nullified by the courts.
2. The positive aspect of the Commerce Clause is that it explicitly gives the U.S.
Congress the right to regulate INTERSTATE and INTERNATIONAL
commerce. It’s called the positive aspect because it tells the U.S. Congress
something they CAN do. Interestingly, the Congress didn’t actually PASS any
such laws until about 1870! That’s about eighty years after they were GIVEN
this power! So for the first 80 years of U.S. history, the entire effect of the
commerce clause was from its negative or dormant aspect!
7
Go straight to this:
The 1942 Supreme Court case of Wickard versus Filburn either originated the
Substantial Effect Rule, or reinforced that rule, depending who you ask.
Scholars disagree on which one it did. At the very least, it strongly reinforced
the rule. In this case, the U.S. Supreme Court upheld Congress’s right to place
national production limits on wheat, and to allocate those quotas to individual
states and farms.
8
Go straight to this:
In ruling AGAINST Mr. Filburn, the U.S. Supreme Court said that “Congress may
regulate any activity that has a substantial economic effect on interstate
commerce,” even if the activity itself occurs entirely within state boundaries,
and even if the products of that activity never actually enter the stream of
interstate commerce.
Now, you may be wondering how 23 acres of wheat could have a “substantial
effect” on interstate commerce. Here’s how the Supreme Court got around that
problem.
9
Go straight to this:
It’s called the “aggregation argument.” It goes like this: the fact that Mr. Filburn
only reduced his demand for wheat by 239 bushels, which is what you can grow
on 23 acres in one season, will not enable him to escape federal regulation.
Because if we let Mr. Filburn get away with that, then thousands and thousands
of other farmers are going to make the same argument, and then the demand for
wheat will be SUBSTANTIALLY reduced by these thousands and thousands of
farmers together. So if Mr. Filburn violates a federal law, and if the collective
effect of thousands of people like Mr. Filburn violating that same law in that
same way would have a substantial effect on interstate commerce – for example,
would materially effect the equilibrium market price of wheat – then Mr.
Filburn is busted. That’s not how THEY said it. This is how THEY said it: The
fact that (Mr. Filburn’s) contribution to the demand for wheat may be trivial by
itself is not enough to remove him from the scope of federal regulation where,
as here, his contribution, taken together with that of many others similarly
situated, is far from trivial. But it means the same thing as what I said.
These new rules - the substantial effect rule together with the aggregation argument,
were staggering in their effect on the ability of the federal government to
regulate business activities that occur entirely within an individual state’s
borders.
10
The Civil Rights Act of 1964 – the federal statute we learned about in chapter 4 – is
an example of the federal government telling businesses what they can and can’t
do – business regulation. Title 2 of the 1964 Civil Rights Act says that persons
may not be denied access to “public accommodations” on the basis of their race,
color, sex, religion, or national origin. In 1969, the owners of a summer resort
in Arkansas filed a lawsuit claiming that this law was a violation of their
constitutional rights under Article I, section 8 of the constitution: the
enumerated powers clause. They argued that their business was conducted
entirely within the boundaries of a single state: Arkansas. Since no interstate
commerce was involved, they said, Congress has no right to regulate how they
operate their business. Only the Arkansas state legislature and state
administrative agencies can regulate our business, they said. And prior to 1937,
the Supreme Court would have agreed with them.
This case went all the way to the U.S. Supreme Court in 1969. The court ruled that
the federal government could tell this Arkansas recreational facility it had to
allow blacks to use its facilities because three of the four items sold at its
snack bar were probably purchased from outside the state. Also, its
paddleboats were leased from a business in Oklahoma, it owned a jukebox that
was manufactured out of state, and the records in the jukebox were
manufactured out of state. Advocates for states’ rights – the sort of modern day
anti-federalists – were shocked that the U.S. Supreme Court would use such a
flimsy trickle of goods crossing state lines in support of this business as an
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excuse to allow the federal government to tell this business what it could and could not do.
But the court applied the aggregation argument and the substantial effect rule, and
concluded that Congress could indeed tell them what they could and could not do, even
though none of their interactions with their own customers crossed state lines. The
Supreme Court’s adoption of the aggregation argument and the substantial effect rule
expanded Congress’s reach to virtually all businesses and business activities, including
many that had previously been considered beyond the reach of the federal government
because they were purely intrastate businesses. This is still the law today. Almost any
business and its activities can now be regulated by the federal government, and this can
be traced directly to the Supreme Court’s adoption of the aggregation argument and the
substantial effect rule in the 1940s. In short, the power of the federal government to
regulate business activities was greatly expanded by the Supreme Court’s new
interpretation of the commerce clause, wherein they applied the substantial effect rule and
the aggregation argument to their analysis. It would be fair to say that most of the federal
government’s authority to regulate business in America today is derived from the
Supreme Court’s interpretation of the Commerce Clause.
Similar cases were brought against hotels and motels in the Deep South who did not want to
allow blacks to stay in their establishments. They said “we have few if any customers
from outside the state, therefore we are not significantly involved in interstate commerce,
therefore we should not have to comply with Title 2 of the 1964 Civil Rights Act.” But
they lost, based on reasoning very similar to that used by the court in Daniel v. Paul. And
Congress’s right to regulate such businesses, in whatever ways Congress saw fit to do,
was firmly established.
11
p. 108
In every single Supreme Court case from 1937 to 1995 where the power of the U.S.
Congress to regulate an activity was challenged on constitutional grounds, the
Supreme court upheld the federal statute. The very first time the U.S. Congress
LOST was in the United States versus Lopez case or 1995.
In United States v. Lopez (1995), the Court struck down the “Gun-Free School
Zones Act,” a federal statute.
The Government argued that possession of a firearm in a school zone MIGHT result
in more violent crime. An increase in violent crime, they said, will cause
insurance rates to go up. If the school is right near a state border, the insurance
rates paid by citizens of the neighboring state could easily go up. That’s an
effect on interstate commerce. Secondly, the government argued that violent
crime reduces the willingness of people to TRAVEL to areas within the country
that are perceived to be unsafe. Many of those travelers might have come from
out of state. That’s effect on interstate commerce number two. Third, the
Government argued that the presence of guns in schools distracts kids from their
education. That might cause their education to be less effective, and that will
effect the productivity of the economy. Some of these students might end up
becoming workers in other states. That’s effect on interstate commerce number
three. These are reasonable arguments. So why didn’t the U.S. Supreme Court
buy them?
12
The Supreme Court said that, from now on, if and only if a given activity CANNOT be
EFFECTIVELY REGULATED by the states AND affects interstate commerce will the
U.S. Congress be permitted to regulate that activity. None of the states by themselves can
effectively regulate the national production of wheat. Regulating – by which we mean
controlling – the national production of wheat is the only effective way to regulate the
PRICE of wheat on the open market. Therefore no one state can achieve this government
objective alone. Therefore the Supreme Court’s decision in Wickard versus Filburn was
correct. However, safety in and near schools can be very effectively regulated by state
regulations, they said. Congress’s assistance in regulating this activity is not needed,
therefore the U.S. Congress may not regulate this activity, EVEN THOUGH it has an
effect on interstate commerce.
12
The Federal Courts of the United States Have Two Key Powers: the power of
adjudication and power of judicial review.
The power of adjudication is the power to decide individual legal disputes,
meaning individual court cases. As we have seen, the FEDERAL courts hear a
variety of cases, but there are some cases that they are not permitted to hear.
These include criminal cases based on state law and civil cases based on state
law where both parties are citizens of the same state. If the federal courts DO
have jurisdiction, then the power of adjudication includes within it the power of
statutory interpretation, to the degree such interpretation is necessary to decide
that particular case.
The Power of Judicial Review is the power of the federal courts to declare a statute
or governmental action unconstitutional, and therefore void. This is one of the
most important powers of the federal government, yet it was not given to the
federal courts in the Constitution. Instead, this was a power that the U.S.
Supreme Court gave to ITSELF, and to the FEDERAL courts, in the 1803 case
of Marbury v. Madison. Subsequent court decisions have extended this power
to state courts, but in this course we will focus on judicial review decisions by
federal courts.
13
Courts’ exercise of the power of judicial review is often controversial
This is because it often protects the fundamental (constitutional) rights of minorities
while thwarting the will of the majority, and therefore feels undemocratic to
some people. Let me give you an example.
14
Judicial activism is A court’s willingness, or even eagerness, to use the power of
judicial review to shape the substantive law.
Judicial restraint is A court’s willingness to limit its role to enforcing the laws
passed by Congress or the state legislatures.
When courts practice judicial activism, they are usually protecting the rights of
some small group of persons against the will of the majority. When courts
practice judicial restraint, they are bowing to the will of the majority, generally
speaking.
Let’s do an example.
15
The case I want to look at to illustrate judicial activism and the power of judicial
review is Texas versus Johnson. You will find it in your textbook on page 114.
Outside the Republican National Convention in Dallas, Texas, Gregory Johnson
participated in a protest against the policies of the Reagan administration.
Participants gave speeches and handed out leaflets. Mr. Johnson burned an
American flag during the protest. He was arrested and convicted under a Texas
statute that prohibited “desecrating” the American flag, but the Texas Court of
Criminal Appeals reversed on the grounds that Mr. Johnson’s conviction
violated his First Amendment rights. This shows that STATE courts are now
ALSO permitted to perform judicial review; that is, to consider the
constitutionality of state laws and actions. The state of Texas APPEALED the
Texas Appeals Court’s decision to the U.S. Supreme Court.
16
The key legal issue before the Supreme court was: Is the desecration of an American
flag, by burning or otherwise, a form of speech that is protected under the First
Amendment? Their decision was: yes it is. It was a narrow decision though:
the vote was 5 Justices in favor of UPHOLDING the ruling of the Texas
Appeals Court, which ACQUITTED Mr. Johnson, and 4 Justices in favor of
OVERTURNING that ruling. The majority – that means the 5 Justices who
favored UPHOLDING the decision of the Texas Court of Appeals – pointed out
in their opinion that the only kind of speech that NEEDS to be protected from
abridgment is speech that is going to offend SOMEBODY. They felt that if you
allow the state of Texas, and in particular its legislature, to say that if a
particular kind of speech is offensive to a majority of Texas’s citizens, then we
should be allowed to make that kind of speech illegal, then you would step onto
a slippery slope, and before you know it, they’ll be banning BOOKS that are
offensive to a majority of Texas’s citizens and all kinds of things that the First
Amendment was specifically designed to PREVENT.
17
When this case went to trial, every single state had a statute making it illegal to burn
an American flag in public as an act of disrespect!
So this decision by the Supreme Court was very unpopular! Why should nine
Supreme Court Justices, who are not elected but appointed for life be able to
strike down 50 state laws with one decision? That’s what people who didn’t
like this decision said about it. The people of a state elect its legislators. If a
majority of the legislators of a state vote for a law, that usually means that a
majority of the PEOPLE in the state WANT that law. So when the Supreme
Court strikes down a state law as unconstitutional, a lot of people often
complain.
18
Another example of this is Brown v. Board of Education. In this decision, the
Supreme Court ruled that segregation of the state public schools was a denial of
“equal protection under the laws” under the Fourteenth Amendment.
Overturned the “separate but equal” doctrine of Plessy v. Ferguson (1896). This
was a very unpopular decision among the Southern states.
19
If a person accuses a U.S. Senator of being insane, and uses crude, violent language
to describe him, can that person be found guilty of a crime? Why or why not?
What would be an example of a statement involving a senator that would NOT
receive constitutional protection?
20
But even when speech is protected, government may still regulate the…
(read slide) of that speech.
21
(Buried in the text on page 115.) You have the right to an abortion, but you do not
have the right NOT to be shocked and confronted by others who have stronglyheld opinions about your choices.
22
23
(Miller v. California: 1973)
1. Prurient means “characterized by lust”
2. If and only if the trial court can answer all three questions in the affirmative, the
work may be judged obscene. For example, a U.S. District Court ruled that “As
Nasty as They Wanna Be” by 2 Live Crew was obscene, but the appeals court
reversed that decision, finding that the state had failed to prove requirement 3:
lack of serious artistic merit.
24
1. Show of hands
2. The decision, p. 59 IM
3. Discussion
4. Does this mean the Supreme Court says nude dancers must wear pasties and a gstring?
25
Choices: political speech, commercial speech, or all other.
What type of speech is:
1. I’m glad President Obama won instead of Mitt Romney. (Answer: Political)
2. Donald Trump is a liar and doesn’t care about ordinary people. (Answer:
Political)
3. Anybody who voted for Donald Trump is stupid. (Answer: Political)
4. Vote for me for President in the next election. (Answer: Political)
5. Chris Rock is offensive and a poor comic and I don’t like him. (Answer: All
other.)
6. Try new Dawn Complete dishwashing liquid for soft hands and strong greasecutting power. (Answer: Commercial)
7. The Kit Kat Club’s nude dancing, because the patrons paid to get in. (Answer:
All other, unless you’re saying the dancing is trying to entice me to spend more
money, for example on prostitution or private lap dancing, in which case it
would be commercial.)
8. Abortion is murder. (Answer: Political)
9. I agree with Donald Trump that we should build a wall between the United
States and Mexico. (Answer: Political)
26
27
28
Page 117
1. A violation of his First Amendment right to free speech. What kind of speech is
this? What test must a regulation of that speech meet?
29
Page 117
1. The Arizona Court of appeals applied a three part test to see if the rule was
reasonable and directed to a legitimate goal.
2. …in the behavior that is being regulated, or its effects. This means also that the
government’s interest is reasonable and appropriate, and it is a goal that would
be important to many reasonable persons in government.
3. …that is, it will clearly help the government achieve its objective.
4. …that is, it will have few if any undesirable side-effects – no more than is
necessary to achieve the goal.
The City of Mesa argued that its goal was to make its business district aesthetically
pleasing. It argued that the sign code did in fact make the city more attractive. It
also claimed that its 30% standard was no more than was necessary to achieve this
goal. The appeals court agreed. The sign code was ruled constitutional.
30
The first bullet is the due process clause and the second is the takings clause.
(Not in the chapter. Only in Appendix A.)
31
Pages 119, 122
32
Page 119
33
Page 119
34
35
Page 120
36
Federal, state, and local governments often require property for public use. They
may need the property for a highway, school, airport, bridge, or urban renewal
project. Government may take land for these purposes under the power of
condemnation, also known as the power of eminent domain. Although the
power of condemnation is practically unlimited, there are two restrictions on its
use. The first is that the condemnation must be for the public welfare. The
second is that the owner of the land must receive fair compensation for the
property taken.
After the government determines that a particular parcel of land is necessary for
public use, it will first offer to buy the property. If the owner refuses the offer,
the government brings a condemnation proceeding to obtain title to the land.
Then, in a separate proceeding, the court determines the fair value of the land,
which is usually approximately equal to its market value. When the government
takes land owned by a private party for public use, it is referred to as a taking.
State constitutions contain similar provisions.
37
38
p. 121
39
Page 116
•
So both the federal and state governments can set minimum wages below which
people cannot trade their labor time for, they can set rules about having to pay
time and a half for hours worked in excess of 40 hours per week, and so on.
•
Fundamental rights include the right to read pornography in the privacy of your
home, the right to engage in sodomy (Lawrence v. Texas, U.S. Supreme Court,
2003), the right to use contraception, and the right to have an abortion if you so
choose.
40
The equal protection clause of the 14th Amendment says “No state shall...deny to
any person within its jurisdiction the equal protection of the laws.” It means
that, generally speaking, governments must treat people equally. Unfair
classifications by government, accompanied by differential treatment of the
resulting groups – meaning differential rights and/or responsibilities among
those groups, will not be permitted. Yet clearly, governments do make
classifications and assign differential rights and responsibilities to the groups
created by those classifications, every day. States classify citizens based on age,
for purposes of drinking, obtaining a driver’s license, voting, attending school,
receiving health benefits, and many other purposes. Most such classifications
are legal. To know whether a classification is lawful, the first step is to specify
what is being regulated. That will determine the level of scrutiny a court will
apply to the regulation, which in turn will generally make the outcome of the
case predictable.
Courts have, over time, divided governmental classification schemes into three
different groups and developed a different rule or standard of fairness for
schemes that fall into each of these three groups.
The strictest fairness standard is applied to governmental classification schemes that
divide people according to their race. For example, we saw that, in Brown
versus Board of Education, the Supreme Court struck down a state policy of
“separate but equal” public schools, and said that the states of Kansas, South
Carolina, Virginia, and Delaware – and by implication all other states – can no
41
longer racially segregate their public schools. This is because PUBLIC schools are an
extension of GOVERNMENT. Note that the 14th Amendment would not prevent a
wholly PRIVATE school from excluding blacks. That is still the case today. The
Fourteenth Amendment says only that GOVERNMENT cannot discriminate among its
citizens without a compelling reason.
The second-strictest fairness test is applied to governmental classification schemes that divide
people according to their gender. When Shannon Faulkner filed a lawsuit demanding that
she be allowed to attend The Citadel, an all-male, state-funded military college, she
argued that the state of South Carolina had violated her 14th amendment rights. While her
case was pending, the Supreme Court heard a similar case between another woman and
the state of Virginia, and sided with the woman. The state of Virginia argued that it was
trying to protect women from having to assume combat roles in the military, and being
subject to the draft, because women are different from men and war would be harder on
them psychologically, and also that combat roles would expose them to possible rape by
the enemy upon capture, which would also put her male superior officers in an untenable
position, wherein they might expend a lot of lives to try to capture her back,
compromising our military effectiveness. But the U.S. Supreme court didn’t buy it, and
The Citadel saw the writing on the walls and changed their admissions policy to allow
women. If The Citadel was a 100% private educational institution, it would have been
exempt, but it wasn’t.
The easiest fairness test is applied to cases that involve neither classification by gender nor
classification by race. Legal scholars call this category “the regulation of economic and
social relations,” but this category can also usefully be thought of as the “all other”
category.
•
Can the state department of motor vehicles deny you a driver’s license if you are below a
minimum age of their choosing? Which of these three categories does that fall in?
•
Can they make you take your driving test more often if you are above a certain maximum
age? Which of these three categories does that fall in?
•
Can the state government require you to attend high school if you are below a certain
minimum age? Which of these three categories does that fall in?
•
Can they prohibit you from being present in a bar? In a casino? Which of these three
categories does that fall in?
•
Can the IRS make people with higher incomes pay a higher percentage of their income as
federal tax? Which of these three categories does that fall in?
•
Aren’t these all examples of the state government classifying people within the state and
discriminating against some based on those classifications? Then why are they
permitted?
•
Do Practice test problems 2, 7, and 8.
41