COMPARATIVE CONSTITUTIONAL LAW CLASS 3 AUGUST

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

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 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: s 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

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

REPRESENTATION- REINFORCING REVIEW John Hart Ely

JUSTICE BREYER Active Liberty