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.
•
•
•
•
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.