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Constitutional Law

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Christopher Green

on 30 January 2015

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Transcript of Constitutional Law

Separation of Federal Power
Judicial Power
Executive Power
Marbury (1803)
Humphrey's Executor (1935)
Youngstown (1952)
Morrison (1988)
Nixon (1974)
Extent of I/8/3 & I/8/18 Power
McCulloch (1819)
Champion (1903) Shreveport Rates (1914)
Jones & Laughlin (1937)
Darby (1941)
Wickard (1942)
Raich (2005)
Extent of Governmental Power
Liberty of individual
Government power to make distinctions between individuals
Heller (2008)
McDonald (2010)
Lochner (1905)
Pierce (1925)
Skinner (1942)
Griswold (1965)
Roe (1973)
Casey (1992)
Lawrence (2003)
Strauder (1880)
Brown (1954)
Loving (1967)
Bolling (1954)
Yick Wo (1886)
Croson (1989)
Gratz (2003)
Parents Involved (2007)
Extent of State Power
Federal Authority
Mississippi Authority
Congress Wins/
President Loses
President Wins/
Congress Loses
Myers (1926)
Chadha (1983)
Bowsher (1986)
Free Enterprise Fund (2010)
Congress Loses/
Judiciary Wins
President Loses/
Judiciary Wins
"The Government" as "indivisible" atom
Feds lose
Feds win
E.C. Knight (1895)
Hammer (1918)
Carter (1936)
Lopez (1995)
Morrison (2000) NFIB (2012) (I/8/3)
Extent of 13A/2, 14A/5, 15A/2 power
Feds lose
Feds win
Jones (1968)
Guest (1966)
Morgan (1966)
South Carolina (1966)
Civil Rights Cases (1883)
Boerne (1997)
Morrison (2000)
Shelby County (2013)
Rights claim loses
Rights claim wins
Barron (1833)
Slaughterhouse (1873)
Adamson (1947)
Nebbia (1934)
West Coast Hotel (1937)
Williamson (1955)
Cruzan (1990)
Glucksberg (1997)
Equality claim wins
Equality claim loses
Dred Scott (1857)
Plessy (1896)
Korematsu (1944)
Grutter (2003)
Washington (1976)
Railway Express (1949)
New York Transit (1979)
Michael M. (1981)
Feeney (1979)
Geduldig (1974)
Murgia (1976)
Virginia (1996)
Craig (1976)
Orr (1979)
Graham (1971)
Clark (1988)
Cleburne (1985)
Romer (1996)
Windsor (2013)
Twelve Issues in Constitutional Theory
Is it legitimate?
Will results be better?
Sufficiently determinate?
Sufficiently determinate?
Is it legitimate?
Will results be better?
Possible deference
Dead-hand objection to originalism: James Madison is not the boss of me!
Judicial tyranny charge:
John Roberts is not the boss of me!
What did James Madison know, anyway?
What does John Roberts know, anyway?
Is common-law constitutionalism just monkeys swinging from the constitutional chandeliers?
Does history really give us answers, or are originalists just making it up?
If current doctrine is originalist, common-law constitutionalism might be self-referentially incoherent
If Madison wasn't an originalist, originalism might be self-referentially incoherent
Two things you want to have in your toolkit as soon as possible
Turning arguments upside down:
"If you say A, then you've got to say B!"
Response: "Well, that might be, but my unwillingness to say B is stronger than my willingness to say A, so I'll use this as an argument for not-A!"
Standards ("Must sue within reasonable time," "No young people may drink") v. rules ("Must sue within 3 years," "No one under 21 may drink")
Rules are easy to apply, don't invite manipulation
Standards can, in theory, exactly match the purpose of the rule
If premise, then conclusion
Denial of conclusion
Denial of premise
If premise, then conclusion
Turning Marbury's oath argument upside-down
"If everyone who takes an oath has to have the power to interpret the Constitution independently, then the President, lower-level executive officials, and state officials have to have the power too!"
Response: "Well, that might be, but my unwillingness to think that states & low-level executive officials have interpretive autonomy is stronger than my willingness to think Marshall is right about the oath; I guess he's wrong about the oath after all!"
Oaths to support Constitution require interpretive independence
Calhoun was right, and subordinate executive officers can review constitutionality of presidential actions
Executive & state officials take oath too
Calhoun was wrong, and it would be crazy for subordinate executive officers to review constitutionality of presidential actions
Executive & state officials take oath too
Oaths to support Constitution are consistent, at least sometimes, with subordinate interpretive role
Roe, Bowers, Casey, Lawrence
Roe (1972)
Casey (1992)
Bowers (1986)
Lawrence (2003)
Casey reaffirms Roe, saying no doctrinal erosion since 1972
Casey implies that Bowers is perfectly consistent with Roe (and Casey itself)
Lawrence overrules Bowers, in part because of doctrinal erosion since 1986 in Casey
So, is there tension between Casey and Bowers or not? Casey says no, Lawrence says yes
Turning Dred Scott's separation-implies-inferiority argument upside-down
Taney: "If free blacks were considered citizens, they'd have to be treated as equals, and racial separation laws, like laws banning intermarriage, show that they're not, so they must not be citizens."
Response: "Well, you're right about the social meaning of separation, but the 14A makes blacks citizens, which implies that they must be treated as equals (supporting Bolling), and that they may not be subjected to separation-based stigma (supporting Brown and Loving)."
Founders had lots of racial separation laws, which imply inferiority of blacks
Free blacks must not be citizens of United States
Citizenship implies equal citizenship & ban on implications of inferiority
14A establishes black citizenship, and P/I or E/P guarantee equal citizenship
Citizenship implies equal citizenship & ban on implications of inferiority
Racial separation must be unconstitutional now
Possible deference
Current legal culture says they're taking same oath, following same Constitution as George Washington
Framers may have thought later legislatures would fill in the gaps (Gienapp interp. of removal debate)
Possible deference
Lots of talk about deference to legislatures in current judicial doctrine: only supposed to exercise in a clear case
Legislatures don't worry much about constitutional issues, and let courts deal with them
Full transcript