COMPARATIVE
CONSTITUTIONAL LAW
CLASS 3
AUGUST 28 2006
CONSTITUTIONAL
INTERPRETATION TOPICS
• Importance of interpretation
• Challenge of how to interpret the
Constitution
• Interpreting the text
• Going beyond the text (Part I today)
INTERPRETATION:
IMPORTANCE
• Tushnet:
• “only method practically available in
US constitutional law to deal with
change and its consequences for the
constitutional code.”
AS ERA SHOWS, VERY
DIFFICULT TO AMEND
The XXVII Amendment (1992):
Individuals Can Make a Difference!
XXVII Amendment
• No law, varying the compensation for
the services of the Senators and
Representatives, shall take effect, until
an election of Representatives shall
have intervened.
VAGUE TERMS: “Commerce”
• COMMERCE CLAUSE ART. I § 8, cl. 3:
Congress has the power "[t]o regulate
Commerce with foreign Nations, and
among the several States. . . .“
CASE LAW
• Has it clarified how the vague term
“commerce” should be interpreted?
GIBBONS v. OGDEN (1824)
SINCE GIBBONS
• Many cases before the Court have concerned
the scope of the commerce power
• Over time, the Congress has used its
commerce power to justify many pieces of
legislation that may seem only marginally
related to commerce.
• The Supreme Court of the United States has,
at various points in history, been more or
less sympathetic to the use of the Commerce
Clause to justify congressional legislation
1895-1936
• Interpretation of commerce
power – broad or narrow?
United States v. E.C. Knight
(1895)
• Could the Sherman
Antitrust Act suppress
a monopoly in the
manufacture of a good
(sugar) as well as its
distribution?
• Suit by US vs. 5 sugar
manufacturing
companies to prevent a
monopoly resulting
after a stock purchase
merger
United States v. E.C. Knight
(1895)
• Enclave theory
(agriculture, mining,
production were
exclusive state
enclave)
• Restrictive view of
commerce power
STREAM OF COMMERCE
• In some cases during this 1895-1936
period, the Court was willing to
interpret the Commerce Clause to
permit regulation of local activities, e.g.
Swift & Co. v. United States (1905)
(stream of commerce theory);
Shreveport Rate Cases (1914) (stream
of commerce theory),
SHIFT TO BROADER
INTERPRETATION: 1937-1990s
• Hammer v. Dagenhart
(1918) Federal Child
Labor Act – even
though regulation of
stream of commerce
(interstate transport)
• United States v. Darby
(1941) Fair Labor
Standards Act –
rejected direct/indirect
test in favor of
substantial effects test
COMMERCE POWER USED TO
PROHIBIT DISCRIMINATION
• Commerce power
used to prohibit
discrimination in
marketplace
• E.g. Heart of Atlanta
Motel, Inc. v. United
States, 379 U.S. 241
(1964) and
Katzenbach v.
McClung, 379 U.S.
294 (1964)
MODERN LAW: 3 THINGS CAN
BE REGULATED UNDER THE
COMMERCE POWER
• 1. Channels of interstate commerce (e.g.
roads, terms/conditions on which goods can
be sold interstate)
• 2. Instrumentalities of interstate commerce
(e.g airlines, railroads, trucking)
• 3. any economic activity that has a
substantial relationship with interstate
commerce or substantially affects interstate
commerce (read together with N & P clause)
CLOSER JUDICIAL SCRUTINY
1990s-?
• United States
v. Lopez, 514
U.S. 549
(1995) (5-4)
• United States
v. Morrison,
529 U.S. 598
(2000) (5-4)
CLOSER JUDICIAL SCRUTINY
• United States v. Lopez, 514 U.S. 549
(1995) – regulated activity of
possessing a gun in a school zone was
not an economic activity and did not
substantially affect interstate
commerce
UNITED STATES V. MORRISON
UNITED STATES V. MORRISON
• Civil rights part of VAWA not a valid
exercise of Congress’ commerce power
• Despite Congressional findings that
gender-based crimes affected interstate
commerce
MOST RECENT SUPREME
COURT
• Gonzalez v.
Raich, 545 U.S. 1
(2005) (5-4)
ANOTHER EXAMPLE OF VAGUE
TERMINOLOGY
• “Privileges and immunities clause”
• “Privileges or immunities clause”
ANOTHER EXAMPLE OF VAGUE
TERMINOLOGY
• “Privileges and immunities clause” Art. IV § 2
The Citizens of each States shall be entitled
to all Privileges and Immunities of Citizens in
the several States
• “Privileges or immunities clause” XIV
Amendment No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States
CHANGE IN MEANING
• Corfield v.
Coryell, 6 Fed
Cas. 546 (1823)
• The
Slaughterhouse
Cases 83 US 36
(1873)
EXAMPLES OF FUNDAMENTAL
RIGHTS IN Corfield
•
•
•
•
•
(1) right to pass through/travel in a state
(2) right to reside in a state
(3) right to do business ina state
(4) right to take, hold, dispose of property
(5) exemption from higher taxes than those paid
by other citizens of a state
• And later: right to enter a state to seek medical
services Doe v. Bolton (1973)
• NATURAL LAW VIEW
CUT BACK IN
SLAUGHTERHOUSE CASES
• Art IV § 2 does not give rights to
citizens against their own state – there
must be a discriminatory denial of
rights
• Rejected view that XIV Amendment
removed the discrimination
requirement from Article IV
XIV Amendment
• Only protects (absolutely) privileges
and immunities of national citizenship
• Art IV § 2 protects privileges and
immunities of state citizenship
• So what are the privileges or
immunities of national citizenship?
XIV Amendment
• Right to travel throughout the United States
• Right to protection of federal government
while abroad, or at sea
• Right to habeas corpus
• Right to petition the national government
• Right to the protection of national treaties
• Protected elsewhere, so P or I Clause as
construed in Slaughterhouse Cases has
been rarely used
Recent Case: Saentz v. Roe, 526
U.S. 489 (1999)
• Involved welfare provision that limit amount
of welfare a new arrival to the state of CA
could receive in the first 12 months of
residence to what they would have gotten in
prior state.
Dissent of Justice Thomas in
Saenz
INTERPRETING THE
CONSTITUTION
• What did the first generation of
interpreters think about constitutional
interpretation?
COMMON SENSE APPROACH
• James Madison
speech in the House
of Representatives
1791
• “Reviewing the
constitution with an
eye to these
positions, it was not
possible to discover in
it the power to
incorporate a Bank”
COMMON SENSE APPROACH
• Francis Lieber, Legal
and Political
Hermeneutics (1837)
COMMON SENSE APPROACH
• Francis Lieber, Legal
and Political
Hermeneutics (1837)
CONSTITUTIONAL
INTERPRETATION:
• McCulloch v.
Maryland (1819)
CONSTITUTIONAL
INTERPRETATION:
• McCulloch v.
Maryland (1819)
• In considering this
question, then, we
must never forget that
it is a constitution we
are expounding
INTERPRETATION
• Text (ordinary meaning, technical
meaning, textual structure, holistic
interpretation (?), text and practice)
• Constitutional Structure
• Representation Reinforcing Review
CONSTITUTIONAL STRUCTURE
• Anticommandeering cases (invoked
only twice) (federalism)
• State immunity from suit by state
citizens for violating substantive
obligations Congress has power to
impose on states (state sovereignty)
• Rights cases (govt power is limited)
• Such arguments tend to be
supplementary to other arguments
REPRESENTATIONREINFORCING REVIEW
• John Hart Ely
JUSTICE BREYER
•
Active Liberty