COMPARATIVE CONSTITUTIONAL LAW

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COMPARATIVE CONSTITUTIONAL LAW

• CLASS 3
• AUGUST 28 2006

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CONSTITUTIONAL INTERPRETATION TOPICS

• Importance of interpretation
• Challenge of how to interpret the Constitution
• Interpreting the text
• Going beyond the text (Part I today)

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INTERPRETATION IMPORTANCE

• Tushnet
• only method practically available in US
  constitutional law to deal with change and its
  consequences for the constitutional code.

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AS ERA SHOWS, VERY DIFFICULT TO AMEND
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The XXVII Amendment (1992) Individuals Can Make
a Difference!
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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.

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VAGUE TERMS Commerce

• COMMERCE CLAUSE ART. I 8, cl. 3 Congress has
  the power "to regulate Commerce with foreign
  Nations, and among the several States. . . .

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CASE LAW

• Has it clarified how the vague term commerce
  should be interpreted?

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GIBBONS v. OGDEN (1824)
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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

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1895-1936

• Interpretation of commerce power broad or
  narrow?

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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

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United States v. E.C. Knight (1895)

• Enclave theory (agriculture, mining, production
  were exclusive state enclave)
• Restrictive view of commerce power

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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),

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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

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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)

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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)

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CLOSER JUDICIAL SCRUTINY1990s-?

• United States v. Lopez, 514 U.S. 549 (1995) (5-4)
• United States v. Morrison, 529 U.S. 598 (2000)
  (5-4)

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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

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UNITED STATES V. MORRISON
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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

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MOST RECENT SUPREME COURT

• Gonzalez v. Raich, 545 U.S. 1 (2005) (5-4)

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ANOTHER EXAMPLE OF VAGUE TERMINOLOGY

• Privileges and immunities clause
• Privileges or immunities clause

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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

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CHANGE IN MEANING

• Corfield v. Coryell, 6 Fed Cas. 546 (1823)
• The Slaughterhouse Cases 83 US 36 (1873)

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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

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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

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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?

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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

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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.

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Dissent of Justice Thomas in Saenz
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INTERPRETING THE CONSTITUTION

• What did the first generation of interpreters
  think about constitutional interpretation?

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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

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COMMON SENSE APPROACH

• Francis Lieber, Legal and Political Hermeneutics
  (1837)

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COMMON SENSE APPROACH

• Francis Lieber, Legal and Political Hermeneutics
  (1837)

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CONSTITUTIONAL INTERPRETATION

• McCulloch v. Maryland (1819)

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CONSTITUTIONAL INTERPRETATION

• McCulloch v. Maryland (1819)
• In considering this question, then, we must never
  forget that it is a constitution we are expounding

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INTERPRETATION

• Text (ordinary meaning, technical meaning,
  textual structure, holistic interpretation (?),
  text and practice)
• Constitutional Structure
• Representation Reinforcing Review

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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

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REPRESENTATION-REINFORCING REVIEW

• John Hart Ely

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JUSTICE BREYER

• Active Liberty

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