2.13 Class Notes PDF

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Leiderman Con Law I Notes...

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2.13 Class Notes 1. Dredd Scott (continued from last class) a. The court could have (and indeed, almost did!) coalesced behind Justice Nelson’s opinion. Yes, there’s jurisdiction. Yes, Scott is a citizen of Missouri and he can sue. We are going to assume he had his right to freedom, but he didn’t assert his right then, and when he came back to Missouri, the international rule is that when you are “free” in one jux, you are forever free, but it is within Missouri’s rights to change this as a matter of state law, which they did! A MUCH more narrow holding than how Scott actually turned out. Taney wanted a grand holding, and decides that two major questions in particular he’s going to resolve against Scott. i. For purposes of the Fed Constitution, it’s unthinkable that the Framers would have considered even free blacks as “citizens” for purposes of the U.S. Constitution. 1. Originalist argument that it would have been unthinkable at the framing. a. As support for his argument, Taney emphasizes that even free blacks descended from slaves, and were considered a “subordinate” and “inferior” class of beings, and that even in the states that gave them some rights, they weren’t treated as equal as whites, so it can’t be the case that free blacks were to be entitled to equal understandings of citizenship. ii. Taney concedes that the Court doesn’t have jurisdiction because Scott isn’t a “citizen,” but nevertheless, continues on to the merits of the case. He states that the power to make rules for the territories is implied from Article 4, §3, Clause 1. Once he decides that Congress can generally make rules, he holds that it is NOT within Congress’s power to make a rule that there shall be no slavery in the territories. His justification is the due process clause of the 14th Amendment. It would violate the due process clause to strip the slave-owner of his property merely because he entered this territory (because the due process clause applies to “life, liberty, and property” and slaves were treated a property). 1. Wasn’t there due process of law here? This was a federal statute enacted in the traditional manner, and slave-owners were on notice of what could happen if their “property” was taken in to the territory. Who in their right mind would think this is a violation of due process?! But this is what Taney says here. a. Taney takes this argument one step further. That even if the slave-owner became a permanent resident of the territory (not merely stripping him of his property rights because he happened to cross over) then this still constitutes a violation of the due process clause. 744. b. Speaks to the idea of substantive due process. Some rules violate due process not because of procedural issues, but because they are substantively problematic. Due process applies not only the “process” itself, but to substantive issues.

2. Taney is implying that the Constitution, read fairly, should preserve the rights of slave-holders. a. Taney, like Marshall, is very aggressively reading the Constitution, but for evil ends. i. He thought he was trying to be faithful to the deal that was cut at the time of the Constitution’s framing. Thought he was paying fidelity to the Constitution. ii. He thought that by the SC reaching out to decide these issues, he was preserving the nation. He wanted to prevent conflict between the states. But Dred Scott became a flashpoint that only exacerbated the tensions of the 1850’s and lead to succession. 2. Frederick Douglas Essay (p. 1255) a. Garrison- Constitution as an “agreement with hell”. Abolitionist view that we need a new Constitution because it had, in effect, preserved the slave trade. This was the prominent view- the Constitution is part of the problem. b. Douglas- in a certain sense if responding to Taney. He in particular wants to disabuse his audience of the idea that Taney has injected that slavery in general and the noncitizenship of those descended from the slaves was inherent in the Constitution. Douglas wants to re-claim the Constitution as the answer. That the Const. empowers the Congress to eliminate slavery! That slavery is not protected by the Constitution, and that the document contains within its four corners the power to eliminate this great evil from society. Views the Constitution as our saving document, not as our downfall. Douglas is expressly and proudly textualist (“all men are created equal”.); so what if the Framers supported slavery, that’s not what they wrote! The Framers declined to use or mention the word slave or slavery in the Constitution, so let’s focus on the actual words that were written in this deliberate document that was the result of careful deliberation and compromise. And what about all of these clauses that seem to recognize slavery? Douglas goes through them one by one. i. 3/5 rule: the South is being penalized for enslaving these persons, because the South is being penalized when they would have more of a voice otherwise! So it’s almost ANTI-slavery! ii. Slave trade cannot be prohibited until 1808: This suggests that after 1808, Congress can prohibit the very lifeblood of slavery in the U.S. iii. Fugitive slave clause (Article 4, §2, Clause 3- if a slave escapes to a free state, the state has to return it to the owner): Douglas says this applies only to indentured servants, not to slaves! (another textual argument, not really a faithful reading of what everyone read the Fugitive Slave Clause to be. His point is that if you read it literally, the Clause doesn’t have to be understood that way. He wants to highlight the point that the Constitution can be used, without revision, to cut AGAINST slavery.) c. Douglas comes up with his own canon. IF the text does not absolutely compel an interpretation pro-slavery, why should we read it as such? He’s saying that if the

language forces you to do something evil, so be it, but if there is ambiguity, you should construe it AGAINST wickedness and IN FAVOR OF justice and liberty. 1255. i. What do we think about this? Do we think of the Constitution that deserves very little respect because it was a “covenant in death/agreement in hell”? Or do we think that we should maintain it and co-opt it for a more just purpose? 1. Douglas’s idea is less radical. By maintaining a familiar doc, but interpreting it in new ways, it feels less “scary” “new” or “revolutionary.” Because with Garrison’s theory, what is the alternative? We’d have to make a new Constitution! Entirely radical notion. Douglas plays it safe, wrapping himself in the Constitution, so that his ideas are more familiar and more palatable. It’s a preferable theory to Garrison’s because there’s some semblance of familiarity or tradition. Maintaining the Constitution, but re-framing the interpretation. Douglas’s is piggybacking of the perceived legitimacy of and favor towards the Constitution, while at the same time co-opting it for his own ends. 2. Perhaps it’s an anti-war statement. He’s trying to set the stage for a more peaceful resolution that Garrison’s radical approach would entail. He’s appealing to this idea of peace and preservation just as Taney was. 3. Additional notes/questions: a. What does it mean to be an Originalist? i. Fidelity to the origins, to the idea of the true meaning/intent/expectations has always been thought, rightly or wrongly, in trying to persuade people regarding what the Constitution is, what the nation is. 1. We see two very different ways to approach this here (Taney and Douglas). Taney tries to put himself in the shoes of the Framers, while Douglas lends credence to the words of the Framers. Douglas thinks the text ought to be the touchstone. They have vastly differing idea of fidelity to origins. a. Why should we care what the Framers cared about? Why should Originalism govern the issues were having in 2018? b. What is the proper role of the court? i. This reflects Marshall in Marbury and McCulloch, and Taney in Dred Scott. Both take the excuse of a case before them and use it to try to resolve grand questions. The court is seeing itself as (1) a body that simply adjudicates immediate cases and controversies (Marshall’s false modesty in Marbury), and (2) an important body for resolving deep Constitutional debates over time. c. In many cases, judges are thinking about the future and how their role is going to play out in society. In some cases the rules are wonderful (Marshall’s rule in Marbury) and in some they are horrid (Taney in Dred Scott). What should this uncertainty regarding the outcome/ramifications about your decision push you to do? 4. The Correspondence of the Justices a. U.S. has to figure out how to treat England and France (who are at war with each other) without getting in to a war themselves. They are trying to figure out the right answer, and so they write to the Supreme Court so that they know how to act lawfully in this

very delicate situation. Court writes back and says it’s not their job. It’s their job to decide cases. They don’t issue legal rulings without a case or controversy, per Article 3. Also, we’re a court. Our decisions are instantiated in judgements. You, Pres, are asking us for an advisory opinion, and this is not within the power of the judiciary. In fact, the Constitution explicitly provides that you should get advisory opinions from the heads of the departments. 5. The Political Question Doctrine and Article 3 Standing a. Differences between the two theories: i. The idea of a political question is that a substantive question of Constitutional law cannot be resolved by the courts. It has to be resolved by others. ii. In contrast, if a P in a case has no standing, that doesn’t mean that the Court can’t answer the question. You just have to get a plaintiff before the court can hear the case. The court CAN opine on the question, just not with the current party. With political question doc, court can’t hear the question at all. b. Luther v. Borden i. Revolution in RI to decide who would be the sole government faction, the charter gov or the new gov. Case comes before the S.Ct. They say “we can’t decide.” Its’s not for us to decide the legitimate government, it’s for the Congress to decide. But by not deciding, they were maintaining the status quo and implicitly ruling for the party that had dominated. ii. Guarantee Clause- U.S. supposed to guarantee a “republican form of government.” S.Ct. holds that because Pres/Congress has the power to guarantee a republican form of government, it is within their power to decide what the legitimate shape of this government is. They think the term “republican” is too broad for them to decide what it is. It’s not a judicially manageable standard. The Supreme Court has never recognized a claim under the republican form of government clause. c. Nixon v. U.S. i. What counts as a “trial” after a house impeachment is a political question that the Court cannot adjudicate. 1. Senate has the “sole” power to try impeachments. a. But concurrence says this is a different question than who gets to decide what counts as a trial. The Senate can try an impeachment, but maybe the Judiciary can decide what a “trial” is. Just because a branch has a power doesn’t mean they get to decide if they are exercising that power properly. b. What Rehnquist is really doing is saying it’s a decision on the merits. The word “try” is so broad that the Framers must have wanted the Senate to have the power to decide what that means for themselves. i. But Justices White and Suter call bs. What is the Senate used a coin-flip to decide impeachments? Would we really say that is a trial?

c. Rehnquist says it would be unseemly for the Court to get involved. This is a judge we’re talking about! WE will be biased if we make this decision! This looks bad for us. Also, it would destroy the idea of separation of powers. The Senate is supposed to have this one “check” on the judiciary. d. And it would drag everything out too long if this issue has to go through the S.Ct. too after being decided by the Senate....