Assignments for the week of January 12: Tuesday, January 13: Required: Please read the Course Policies before the first class. We discussed the material in Section I.A.1. Consider: The purpose of having you look at two other countries’ constitutions, along with that of the U.S., is to give you some sense of how constitutions can differ and how they can resemble each other. While many different examples could be used, Canada is interesting because it is a neighbor with a common law background but a different constitutional history. South Africa’s constitution is often cited as a model for modern constitution-drafting. You don’t need to read the entire U.S., Canadian and South African constitutions word for word, but you should spend some time skimming through each of them to get a good sense of them. You need to do more than just flip through the pages, but something less than a word-for-word read. There is no need to do any outside research on the constitutions. In fact you will be better off not doing that. The point of this look at the three constitutions is to start getting skilled at parsing texts and seeing what you can (and cannot) get from them. As you are looking through the texts, think about a few basic questions: Why have a constitution at all? Must it be in writing to function properly as a constitution? Are there any other characteristics something must have in order to be a “constitution”? What distinguishes a constitution from legislation? Are they two completely separately categories, or is it more the case that there is a spectrum with constitutions at one end and legislation at the other? Why should a constitution be binding on subsequent generations? Next think about the constitutions compare on the subjects they cover. First, get an overall sense of the provisions of the U.S. constitution. Skim each Article (I-VII) to see what general subject it covers, and look through the amendments to see how it’s been amended over time. What groupings of the amendments do you see? The Bill of Rights is one -- do you see others? Should it matter in interpreting an amendment whether you see it as part of a group of related amendments? Would you group any of the amendments with any parts of the original constitution? Once you’ve gotten a sense of the U.S. constitution in particular, you can begin to look more systematically through the Canadian & South African constitutions as well. For the Canadian (Supp. 3-37) and South African (Supp. 38-122) Constitutions, identify the major divisions of the constitution and what major subject matters they cover. Imagine that you were hired by a newly independent state as an expert in constitutional law, with the aim of providing advice in the drafting of a constitution. What subject areas do you think a constitution should cover? What things do you think do not belong in a constitution? If you were to suggest one of the three as a model, which would you point to? Does any one of the constitutional texts seem more to you like what a constitution should look like than the others? Why? For example, should constitutional language be broad and sweeping? Should there be tables or schedules in constitutions? Why or why not? For each constitution, identify at least one provision that is of a type that you think either clearly does not belong in a constitution, or at least arguably does not (and consider the reason(s) for your selections). In what respects, if any, does the text of the U.S. Constitution embody, reject, or not address the following values? Human dignity, the achievement of equality and the advancement of human rights and freedoms. Non-racism and non-sexism. Supremacy of the constitution and the rule of law. Universal adult suffrage, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Note: these values are taken from Section 1 of the South African Constitution, with some modifications. Is it desirable, in your view, to express basic values in a constitutional text? Are there other values you would include? Compare the provisions of each of the three constitutions relating to the following issues: The protection of rights U.S. Const., Art. I §§ 9, 10; Bill of Rights; Amendments I-X (what other amendments would you include in this category? South African Constitution, ch. 1 (§§ 1-6) & ch. 2 (§§ 7-39) Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms) Among other things, consider what types of rights each of the three protects. The suspension of rights in case of emergency (sometimes called a state of exception) U.S. Const. I § 9 cl. 2 South African Constitution, § 37, Supplement 46-47 Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms), § 33 (not quite a state of emergency provision but still providing for an “exception” to rights). How do they differ? Which approach do you think is better? Should the U.S. adopt a provision like § 37 of the South African Constitution, Supplement 46-47? The powers of the provinces/states vis-à-vis the federal/national government: U.S. Const. Art. I §§ 8 and 10; Article VI cl. 2; and the Tenth and Fourteenth Amendments; South African Const. chap. 6 (§§ 103-150), Supplement 64-75; see in particular §§ 146 & 148 (Supplement 74-75) and Schedule 4 (concurrent national/provincial powers) and Schedule 5 (exclusive provincial powers), Supplement 102-104. Notice that Chapter 6 also sets out the structure of provincial governments, with a procedure for each to adopt its own provincial constitution, subject to the approval of the Constitutional Court. Canadian Const. Act, 1867, Arts. 91-95, Supplement 14-17. Consider also Const. Act., 1982, § 52 Under each of the constitutions, looking solely at the text, would the federal government have the power to enact a law banning abortion? Protecting access to abortion? Would the state or local governments have that power? If the two conflicted, which would prevail? What are the eligibility provisions for being president of the U.S.? Of South Africa? This is an exercise in parsing constitutional texts, so focus only on what you can get from the texts. “What you can get from the texts” may be answers or it may be questions about questions and other sources you would have to look into to answer the question. See U.S. Const., Art. II § 1 cl. 5, and Amend. XXII; Art. I § 8 cl. 4; Fourteenth Amendment § 3). Const. of South Africa, Arts. 42(3), 46, 47, 49, 86, 87, and 88. If a majority of U.S. voters wanted to elect the following as president, would the U.S. Constitution permit it? If not, why should a majority of people be prevented from electing their preferred candidate? Rep. Ilhan Omar (D. Minn) or Elon Musk, both of whom are naturalized U.S. citizens born in Somalia and South Africa, respectively. Sen. and Secretary of State Marco Rubio (Florida), born in the U.S. to parents who at the time had Cuban citizenship. The late Sen. John McCain, born in 1936 to U.S. citizens on a U.S. military base in the Panama Canal Zone. The Panama Canal Zone was controlled by the U.S. from 1903 to 1999, after which it reverted by treaty to full Panamanian control. Sen. Ted Cruz (R. Tex), born in Canada to a Cuban citizen father and U.S. citizen mother, or Sen. Tammy Duckworth (D. Ill.), born in Thailand to a U.S. citizen father and Thai citizen mother. Thursday, January 15: We discussed the material in Section I.A.2 and began our discussion of the material in Section I.A.3. With respect to Section I.A.2 (Adoption of Constitutions): In the case of each of the three constitutions (U.S., Canada, South Africa), just based on the texts you have in the Casebook and the Supplement, when would you say the constitution was written? Another way to put it is, in what time did the framers of each live? What is your view of the South African Constitutional Court’s role in the drafting of the Constitution? See Supplement 123-126. One argument often used against invoking the provision in U.S. Const. Art. V for a constitutional convention is that a complete rewrite of the Constitution could put individual liberties at risk. If we were to draft a new national constitution, would it make sense to have the Supreme Court review it to make sure the new draft was at least as protective of rights as the current one? The framing and adoption of the U.S. Constitution: How did the structure of government under the Articles of Confederation differ from that under the Constitution -- in terms of separation of powers and of federalism? What flaws did Madison see in the Articles of Confederation? What problems did Madison see with: the status of the Articles of Confederation as a constitutional text? how states interacted with each other? the relationship between the states and the national government? how states handled issues within their own boundaries? the United States’ relations with other nations? Were the Articles of Confederation adopted by the people of the United States? By the states? Was the Constitution adopted by the people of the United States? By the people of each state? By the states? What difference does this make to constitutional interpretation? What difference does it make to constitutional interpretation that in practice “the people” was a subset of the population, excluding enslaved persons, Native Americans, women, and to a great extent those without property? Was the adoption of the U.S. Constitution an illegal act? Why or why not? Note that Madison’s memo says almost nothing about slavery (even though his memo includes a section on “Injustice of the laws of the states”). There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787. The debates over whether to ratify the Constitution: In reading Federalist Nos. 10 and 51, pay particular attention to what Madison regards as a “faction”; what are the major sources of faction; what problems he says they cause; and how he proposes to address those problems. In what way does the structure of the Constitution as adopted in 1787 reflect his concerns? What advantages would the federal government have over the state governments in the new structure, in Madison’s view? What disadvantages would it have compared to them? Which branch of the federal government did Madison believe would be the most powerful? Is that still true today, in your view? What difference does it make? Why was there no Bill of Rights in the original constitution? By way of making some of the arguments between the federalists and anti-federalists more contemporary and concrete, consider a hypothetical situation today in which a group of doctors seeks to establish an abortion clinic in a small town in Rhode Island, a state in which abortion is permitted: What would be anti-federalist arguments for employing a town meeting to decide this question? What concerns might you expect Madison to raise against the anti-federalist arguments that the best way to decide it would be through a town meeting? What governmental forms would, in Madison’s view, be best adapted to deciding the question? What advantages would a central government governed by representatives elected from relatively large districts have over a town meeting? Would it be consistent with a republican form of government to have a referendum on whether to amend the Florida state constitution to preclude local governments (such as cities and counties) from regulating guns? The Federal Reserve Board is in charge of monetary policy, meaning that it exercises a major influence over interest rates and, through them, the state of the national economy. Members are appointed to 14-year terms by the President with Senate confirmation. The Board has traditionally operated with a considerable degree of independence from the President. Would it be desirable, in your view, to have the Federal Reserve Board put directly under the control of the President (in the same way that, for example, member of the cabinet are)? Would it be consistent with a republican form of government as described by Madison to do so? Should the answer to this second question matter one way or the other to your views on the first? Why or why not? Note that Madison’s memo says almost nothing about slavery under the longest section on “Injustice of the laws of the states.” There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787. With respect to Section I.A.3 (Constitutional Revision): Compare the procedures for amending the constitutions: U.S. Const., Art. V Canadian Const. Act, 1982, Part V (§§ 38-49), Supplement 33-35 and § 52, Supplement 35. See also Const. Act, 1982, § 35.1, Supplement 32. South African Const., § 74, Supplement 56-57. How do the provisions differ in terms of: content drafting style Which of the three do you think is the best? Can all or parts of a Constitution be unamendable? Should that be possible? Is it desirable? In this connection, consider Art. V of the U.S. Constitution, and Section 74 of the South African Constitution. Consider the readings at Supp. 127-136. Would it be consistent with the U.S. Constitution to have a national referendum to adopt an amendment? Why or why not? Is the experience of other countries under their constitutions relevant, in your view? Why or why not? Do you think the U.S. constitution today is in need of major, systematic revision? Why or why not? In thinking about this question, consider anything you think is relevant, but at least consider: Are there provisions in the Canadian or South African constitutions that you would like to see incorporated into the U.S. constitution? Are there other amendments you would like to see made to the U.S. Constitution? Note that Article V provides that the legislatures of three-quarters of the States can call a Convention for Proposing Amendments. Would you support such a call? Why or why not?

Assignments for the week of January 19: Tuesday, January 20: We will first complete our discussion of the material in Sections I.A.3 of the Syllabus (questions here) as well as Sections I.A.4 and I.B. We will then move on to Section I.C.1. With respect to Section I.A.4 (Incorporating Constitutional Amendments): Notice how amendments to the U.S. Constitution are incorporated into the constitutional text: they are simply listed in order of adoption at the end of the 1787 text. There is no official version with the amendments incorporated directly into the original text and provisions that have been rendered inoperative deleted. (This led to some controversy in 2011; if you are interested, see NPR, House to read Constitution out loud again on Thursday, Jan. 5, 2017 (optional).) As the article by Hartnett shows (Supp. 137-154), the U.S. came close to adopting a very different approach to amending the Constitution at the time the Bill of Rights was adopted. Do you agree with Madison’s statement that “form is of some consequence” in this respect (Supp. 138)? Note that Madison’s approach -- to interweave amendments into the main text -- was deemed “absurd” by Roger Sherman, whose approach was in turn “ridiculed” by John Vining. Is it irrelevant -- or revealing -- that Sherman was an opponent of adopting a Bill of Rights? What advantage is there to the non-interweaven approach the U.S. ultimately adopted? What difference would the interweaven approach have made to the Thirteenth Amendment? Is it desirable or deplorable that “the scars of history [would be] less immediately visible” under Madison’s approach? Is the “clutter of enactment and repeal” (regarding Prohibition) a serious disadvantage to the U.S. approach? With respect to Section I.B (Why should democratic societies be constrained by a constitution): Consider these basic questions about any constitution: Why have a constitution at all? Why should people today, in a democratic society, be bound by choices made by citizens long ago? Must a constitution be in writing to function properly as a constitution? Are there any other characteristics something must have in order to be a “constitution”? What distinguishes a constitution from legislation? Are they two completely separate categories, or is it more the case that there is a spectrum with the constitution at one end and legislation at the other? With respect to Section I.C.1, consider: Under the Supreme Court Act, R.S.C., 1985, Supp. 165, did the Canadian Supreme Court have the discretion not to answer the question posed by the Governor in Council? What language in the Act governs this question? On what basis did the amicus argue that Section 53 of the Act was invalid under the Constitution? What is the relevance of § 101 of the Constitution (Supp. 156? How did the Court respond to that assertion? Note that the Court cited U.S. and other foreign law in reaching its conclusion. Why was that relevant? As you can see from the casebook, the U.S. Supreme Court decided early in its history (1793) that it had no power to render advisory opinions. What reasons did it give? Do you think the Court was correct? Should the U.S. Supreme Court consider foreign law in interpreting the U.S. constitution? If the U.S. Supreme Court were to reconsider its decision of 1793, would the Secession opinion’s discussion of whether the Canadian Supreme Court can render an advisory opinion be relevant to determining whether the U.S. Supreme Court has the authority to render advisory opinions? Why or why not? Do the texts enumerated in § 52 of the Constitution Act, 1982, exhaustively comprise “the Canadian Constitution,” according to the Court? (See para. 32, Supp. 156 of the opinion). Should the U.S. Supreme Court take a similar approach to interpreting the U.S. Constitution? What does Curtiss-Wright have to say about the powers of the federal government? Do they derive entirely from the Constitution? Does the President have powers that are not grounded in the Constitution? Make sure you unerstand where, according to the U.S. Supreme Court, the President got the power to prohibit arns sales to the Chaco region in South America; the Court did not ground that power in the 1934 Joint Resolution (i.e., statute) of Congress, or in any provision of the Constitution. Does the reasoning in Curtiss-Wright imply agreement with the assertion in Reference re Secession of Quebec that the text of a constitution may not exhaustively define its content, and may include principles (and powers?) not included within the text? Why or why not? What values does federalism serve, according to the Court? In what way are they similar to or different from the values that federalism serves in the U.S.? The Court identifies “democracy” as a second principle. What does the Court say about the non-inclusion of any reference to “democracy” in the Constitution Act, 1867? Is the principle of democracy sufficiently specific to give guidance in interpreting the text of the constitution? How does it relate to federalism, according to the Court? Does it include a right to change the form of government? Was democracy the animating principle underlying the adoption of the U.S. constitution? The Court identifies “constitutionalism and the rule of law” as the third principle. What does this mean, concretely, according to the Court? What is the relationship between democracy and the rule of law? What is the relationship between “majority rule” and democracy? Are they the same, both being limited by the rule of law? Does the rule of law define what a majority is? What does the Court say to the charge that the rule of law or constitutionalism is incompatible with democracy? The Court identifies “protection of minorities” as the third principle. Much of Canada’s constitutional history relates to the presence of a large Francophone minority within Canada (but majority within Quebec), so the principle is in that particular sense specific to Canada. Would you identify a similar basic principle in the U.S. Constitution? As of 1787? As of 1865-1870 (when the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted)? According to the Court, what, legally, would a provincial secession be? What significance does the Court attach to the fact that provincial secession is not mentioned in the Constitution? If a referendum were held in Quebec and a majority voted to secede, it would have a legal effect under the Constitution, according to the Court. What would that effect be? Would it depend on how close the vote was or on how the referendum were worded? Suppose there were such a referendum in Quebec, and after a majority vote to secede, negotiations on secession. Then the Quebec government asserted that in the negotiations the federal government and other provinces were not negotiating in good faith. Would the Court be available to determine whether that assertion were true (and give relief if it were)? Or would it be a “political question”? Are there any circumstances under which a U.S. state could, consistent with the Constitution, secede from the U.S.? Thursday, January 22: We discusssed the material in Sections I.C.2.a and I.C.2.b.i. With respect to Section I.C.2.a, consider: What accounts do Finkelman (Supp. 167-168) and Wilentz (Supp. 169-170) give of the absence of the word “slavery” from the Constitution? How do they differ? Consider the following possible views of the Constitution (among many possibilities): The Constitution was a pro-slavery document; it “provided enormous protections” (Supp. 168) for the institution of slavery with little or no political compromises by the southern states. The Constitution was not only a pro-slavery document, “an agreement with Hell”: It made political activity by abolitionists under then-existing governmental mechanisms futile. See Supp. 170. The text of the Constitution itself, while hardly antislavery, provided “powerful antislavery potential,” (Supp. 169), though Northern indifference to, tolerance of, or benefits from the institution of slavery over many years left that potential unrealized. The Civil War and Reconstruction marked a fundamental rupture in the Constitution. We have had two Constitutions since 1787. Justice Thurgood Marshall: “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago. ... While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.” From a speech in 1987, at an event marking the Bicentennial of the Constitution. In responding to the position of Garrison and other abolitionists, Douglass sets out two questions: “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country?” See Supp. 172 (issue covered at Supp. 172, col. 2 to Supp. 176, col. 2) “Is the dissolution of the union between the slave and free States required by fidelity to the slaves, or by the just demands of conscience?” See Supp. 172 (issue covered at Supp. 176, col. 2 (beginning with “My argument against the dissolution of the Union ...”) to Supp. 177) We will focus mainly on the first question, but will consider also how the second issue might influence one’s position on the first. With respect to the first question, pay close attention to his approach to constitutional interpretation, in several regards: The role of what he calls a “plain and common-sense reading of the Constitution” (Supp. 176, col. 1) What are the specific textual arguments he makes about the following? How does he deal with the absence of the words “slave” or “slavery”? Is his interpretation of them entirely textual or does he rely on additional modes of constitutional interpretation as well: Art. I § 2 cl. 3 (the three-fifths clause) Art. I § 9 cl. 1 (precluding abolition of the transatlantic slave trade before 1808) Art. I § 8 cl. 15 (power to suppress insurrections and repel invasions) Art. IV § 2 cl. 3 (Fugitive Slave Clause) The Preamble to the Constitution It will also be helpful to read Oakes’ analysis of Douglass’s arguments on these points. (Supp. 193, right hand column to Supp. 178-185) The role of the intent of the Framers What does Douglass mean by “intent”? What if any role should intent play in interpreting the Constitution, according to Douglass? What role did the text alone play, according to Douglass? Consider Oakes’ account of the difference in approach to interpretation between mainstream antislavery advocates and Douglass (Supp. 179, right hand column to Supp. 180) Was Douglass entirely consistent in his approach to the proper method of interpreting the constitution? What does Oakes’ have to say on this point? See Supp. 179 (col. 2) to Supp. 181 The role of canons of construction in constitutional interpretation (or “the most beneficent rules of legal interpretation,” (Supp. 176) To which particular canon does he appeal? What makes it relevant to constitutional interpretation? Are canons of construction part of the Constitution? External to it? In his view, are canons of construction consistently deployed by the abolitionists? Consider his criticisms at Supp. 173, col. 2 (last para.) to 176, col. 1 (second para.). The relevance of widespread social, political, and governmental practice in interpreting the Constitution. Note his consistent distinction between “the chart” and “the course of the vessel,” Supp. 172; see also Supp. 173, col. 1 (America’s “laws are one thing, her practice is another thing”). In interpreting the Constitution, how does Douglass deal with the existence of the institution of slavery in the U.S.? With regard to the second question: What response does Douglass have to the position of abolitionists such as Garrison that any participation in electoral politics or government under the Constitution represented an unacceptable accommodation to a Constitution irredeemably corrupted by the institution of slavery? Douglass sets out the first and second questions and addresses them in separate parts of his speech, but clearly regards them as interrelated. In what ways do the moral and political questions of how to counter the institution of slavery potentially bear on constitutional interpretation? Consider again Justice Thurgood Marshall’s view that “[w]hile the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.” Is his understanding consistent with Douglass’s? Different from it? In what ways? With respect to Section I.C.2.b.i (Heller), consider: Whom (and in what context) does the Second Amendment protect? What is Justice Scalia’s argument that the phrase “the right of the people” refers to an individual right? What is Justice Stevens’s reply? They both refer to other parts of the constitution where that phrase (or the phrase, “the people”) is used. What are those provisions? In deciding whether it refers to an individual right, is the placement of the Second Amendment in the Bill of Rights relevant? What is the meaning of “keep and bear arms”? Is it limited to a military context or does it include hunting and personal self-defense? Here, too, consider Justice Stevens’s and Justice Scalia’s differing approaches. What is a “militia”? What is the meaning of “well regulated Militia”? Do we need a “militia” today in this constitutional sense? Suppose we don’t. Is it ever acceptable to treat a part of a constitution as having fallen into desuetude? Of what practical significance is the Third Amendment today? The majority distinguishes between a “prefatory clause” and an “operative clause.” Does something “operative” intrinsically sound more weighty than something ”prefatory”? Is this distinction a constitutional one or purely grammatical? Is there any evidence that the Framers intended the two phrases to be given different weight? Is “A well-regulated Militia, being necessary to the security of a free State” one clause or two? What does the majority say? On what basis? What significance, if any, should be attached to the fact that the Second Amendment is the only amendment in the Bill of Rights with a prefatory clause? What is the relationship between “a prefatory clause” and an “operative clause,” according to the Court? If A says to B, “since you need to check your e-mail, you may use my computer,” does that give B the right to use A’s computer to buy something on Amazon or check the browsing history? Is this hypothetical a fair comparison to the relationship as set out by the Court? Suppose the Second Amendment read in its entirety as follows: ”The right of the people to keep and bear Arms shall not be infringed.“ Would that require any change to the majority’s ruling on the meaning of the Second Amendment? To the dissent’s? The excerpts in the casebook do not make this entirely clear, but the predominant understanding of the Second Amendment throughout the Twentieth Century was that it did not protect individual rights, just the possession of firearms in connection with a militia. (In 1991, former Chief Justice Warren Burger called the view that it did protect individual rights a “fraud.” It’s optional, but if you want a fuller account of his views, you might be interested in a Parade Magazine article he wrote in 1990.) Should the Twentieth Century interpretation matter to how you interpret the Second Amendement today? Why or why not? What kinds of “arms” are protected under Heller? Handguns of the sort that were banned in D.C. did not exist in 1791. Yet the majority asserts that their possession is protected by the Second Amendment. What kind of approach to constitutional interpretation does this imply? In light of Heller, may a state ban the possession of handguns in schools and college campuses except by police officers? In light of Heller, which if any of the following weapons would you expect the courts to find to be protected by the Second Amendment? Whatever your answer is as of today, are there societal circumstances that might cause it to change in the future? Silencers. Note: A number of proposed bills would make it easier to purchase a silencer; some would preempt state laws regulating or banning silencers. See, e.g., H.R. 3228 (introduced 05/07/2025) (“Constitutional Hearing Protection Act”); David Kopel, The Hearing Protection Act and ‘Silencers’, Washington Post, 6/19/17. Bullet-proof vests. Binary Triggers: A binary trigger is a modification that allows a weapon to fire one round when the trigger is pulled and another when it is released - in essence doubling the firing capacity, firearms experts and weapons manufacturers say. The modifications are relatively inexpensive, running a few hundred dollars depending on the model. They are also a relatively new technology, first released in 2015 partly in response to federal regulators seeking to expand the scope of banning modifications that create automatic weapons. What regulations exist on binary triggers? They are legal in most states and at the federal level. Federal regulations don’t yet cover the sale of binary trigger modifications, said Robert Spitzer, a professor at the College of William & Mary Law School whose research focuses on gun policy and politics. “It’s a matter of technology outrunning regulation, which is not a new thing,” Spitzer said. The Miami Herald, The Fargo shooter used a binary trigger. Here’s what to know about the device that’s worrying police, Miami Herald, July 22, 2023. Semi-automatic weapons, which do not require reloading for each shot, but do require squeezing the trigger for each shot Automatic weapons such as machine guns, which fire continuously so long as the trigger is held down. Optional Note: The National Firearms Act of 1934 banned machine guns. In 2017, a mass shooter in Las Vegas killed 58 people and wounded more than 500. He used semi-automatic weapons equipped with “bump stocks.” A bump stock is a device added to a semi-automatic weapon to allow it to fire continuously without repeatedly pulling the trigger. In 2018, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) classified semi-automatic weapons outfitted with a bump stock as machine guns. In Garland v. Cargill, 602 U.S. 406 (2024), the Supreme Court struck down the regulation. The ruling was not based on the Second Amendment. Instead, after a detailed review of the operation of machine guns, semi-automatic weapons, and bump stocks, the majority concluded that the text of the National Firearms Act of 1934 did not authorize the regulation. Rocket-propelled grenade launchers. Flamethowers What uses or forms of possession are not protected, according to the Heller majority? Suppose, for example, you collect antique guns. They are in working order, but you have no plans ever to use them for self-defense or hunting. Would a law banning the possession of antique guns (out of concern, for example, that might endanger children living in the house where they are stored, or might be stolen and misued) violate the Second Amendment? What uses or forms of possession are not protected, according to the Heller majority? Is Heller right in assuming that someone who commits wire fraud (a felony) can be denied an individual constitutional right to keep and bear arms? Does this mean that other rights in the Bill of Rights (e.g., to be free from unreasonable search and seizure) may be similarly denied to felons? Does Heller set out a standard of review applicable to challenges to particular firearms regulations? What did the respondent (Heller) argue for? What did the majority hold? What did Justice Breyer argue for? Which approach do you think the Court should adopt? How persuasive do you find the case for his approach to the level of scrutiny? How persuasive do you find Justice Breyer’s argument that the framers would not have anticipated the problem of modern urban-crime related dangers (CB 53)? How does this question relate to the level of scrutiny applied?

Assignments for the week of January 26: Tuesday, January 27: We completed our discussion of the material in Section I.C.2.b.i of the Syllabus (questions here) and then discussed the material in Sections I.C.2.b.ii (Blaisdell) and I.C.2.b.iiiCFPB v. CFSAA). With respect to Section I.C.2.b.ii (Home Building & Loan Ass’n v. Blaisdell), consider: Note that the statute at issue in Blaisdell was a state statute. States have what is typically called “police power”: a broad power to enact statutes for the general health, welfare, safety, and morals of the population. It is this power to which Chief Justice Hughes makes reference at CB 826 (bottom), where he refers to the legislature acting to postpone foreclosures because having numerous foreclosures would be “hostile to public morals, or public health, safety or welfare.” This police power was, however, subject to limits imposed by the Contracts Clause; the federal constitution is the “supreme Law of the Land” under Article VI (CB xliii). As you can see, the Court found that the state statute did not conflict with the Contracts Clause. The framers’ intent: What was the purpose of the Contracts Clause, as contemplated by the framers? Is the holding in Blaisdell consistent with the reasons the framers included the Contracts Clause? What economic conditions did they confront as they drafted the Constitution? Did the framers have an intent as to whether “original intent” should play a decisive role in interpreting the Constitution? Does the language of the Constitution -- for example, of the Contracts Clause itself -- provide any guidance on this question? Note that Chief Justice Hughes, writing for the majority, takes it as obvious that the framers’ intent is not an adequate guide to interpretation; writing in dissent, Justice Sutherland takes it as obvious that the framers’ intent is decisive. What does it say about constitutional interpretation that members of the Court could regard such opposed positions as obvious? What role, according to the Court, does the fact of a grave emergency like the Depression play in constitutional interpretation? What reasons does it give for its view? Was the presence of emergency conditions relevant in any way to the Court’s holding? If Chief Justice Hughes’ approach to constitutional interpretation is correct, how much difference is there between an unwritten constitution and one embodied in a text? Was Blaisdell correctly decided, in your view? Consider the federal moratorium on certain tenant evictions that was included in section 4024 of the CARES Act of 2020 -- a federal statute. The federal government does not have the broad police power that states have. In theory, at least, the federal government has only those powers that are set out in the Constitution. Look through the text of the Constitution and try to answer this question: What provision(s) of the Constitution would empower the federal government to put a moratorium on evictions? And what basis or bases in the Constitution might a landlord have for challenging the constitutionality of section 4024? Note that it could not be the Contracts Clause, because that section applies to states, not the federal government (see Art. I § 10 cl. 1 (“No State shall ... pass any ... Law impairing the Obligations of Contracts”)). If confronted with these questions, should a court take into account that the country was experiencing a pandemic? Why or why not? With respect to Section I.C.2.b.iii (CFPB v. CFSAA), consider: Why did Congress create the Consumer Protection Financial Bureau (CFPB)? What regulatory powers did it give the CFPB? In what ways did Congress attempt to shield the CFPB from influence by the President and Congress? What were its reasons for doing so? In particular, make sure you understand how the CFPB was funded (set out at Supp. 186). Consider also the current role of Elon Musk, who has been developing a new consumer-oriented payment system (X Money), in the attempted shutdown of the CFPB, and the desire for banking industry executives to reduce federal regulation (Supp. 213-215). The regulation at issue concerned payday lenders (what the Court refers to as “high interest lenders”). Payday loans typically pre-authorize the lender to debit the borrower’s bank account as loan repayments come due. The regulation limited this payment mechanism, providing that the lender could not obtain loan repayments through pre-authorized debiting after two unsuccessful attempts. The CFPB found that successive withdrawal attempts were “abusive because they take advantage of consumers’ lack of understanding of the risk that a lender would attempt to charge the consumer’s account again and again if withdrawal attempts failed” (for the obvious reason that the borrower lacked sufficient funds in his or her account), resulting in huge bank charges to the borrower. The Community Financial Services Ass’n of America (CFSAA) (a trade association of payday lenders) challenged the regulation, asserting that the CFPB’s funding mechanism violates the Appropriations Clause (Art. I § 9 cl. 7) (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”). In your view, did the CFSAA have standing to assert this claim? What conclusions does the majority draw from the following: Its textual analysis (Part II.A.1) Supp. 187-188 Its analysis of pre-founding history (Part II.A.2) Supp. 188-189 Its analysis of early post-ratification practice (Part II.A.3) Supp. 189-190 What, according to the majority, are the two minimum requirements for a law to satisfy the Appropriations Clause? Consider the Court’s response to the CFSA’s arguments in Section III: The CFPB, not Congress, decides its annual funding. There is no annual vote in Congress on the CFPB’s funding. The CFPB’s funding mechanism, if extended to every agency, would Justice Alito’s dissent accuses the majority of making a fundamental mistake in consulting dictionaries from the Framers’ era, saying that “Appropriations” was a term of art with a specialized meaning. Justice Thomas, writing for the majority, accuses the dissent of failing to connect its recounting of history, and failing to offer a different understanding from the majority’s of the term “appropriation.” Who has the better account of history? By what criteria would you make that call? The majority takes the practice of funding customs collectors through import duties they collected, and the post office through user fees, as supporting its conclusion (Supp. 190, 193). The dissent argues that the majority has misconstrued the significance of these practices. (Supp. 207-209). Compare the dissent’s argument about late-Eighteenth Century Massachussets laws (Supp. 201 n.1) with the majority’s response (Supp. 193 (left-hand colum, first full ¶). What approach does Justice Kagan take to history in her concurrence? How might you relate it to Justice Frankfurter’s concurrence in Youngstown (CB 334-335)? Suppose Congress had always provided annual appropriations of specific amounts for government agencies, and had not begun to engage in “sums not exceeding” or non-time-limited approaches until around the time of the Civil War, and then had fairly consistently made use of those practices. How would the Court rule under the majority’s approach? Under Justice Kagan’s approach (joined by Justices Sotomayor, Kavanaugh, and Barrett)? Note that Justice Jackson did not join in Justice Kagan’s concurrence. Is her a textualist approach? How deferential to the judgments of the political branches on how to structure spending is her approach compared to (a) the majority and the dissent’s, and (b) Justice Kagan’s? What is your take on originalism as a methodology to guide interpretation of the constitution? Is it a methodology that works best for the constitution as a whole? Certain parts of it? Why or why not? Are the demands it makes on judges in terms of historical research within the realm of their expertise? The dissent repeatedly characterizes the CFPB’s funding scheme as “novel,” (Supp. 196), “unprecedented,” (Supp. 203, 204), and “with no analog in history” (Supp. 203), It asserts that “nothing like the CFPB’s funding scheme has previously been seen” (Supp. 197), and says that “no other agency -- older or new -- has enjoyed so many layers of insulation from accountability” (Supp. 202). Assume for the sake of argument that these characterizations are correct. What does that mean for the constitutionality of the funding mechanism? The approach taken by Congress in funding the CFPB should be regarded with deep suspicion by the Court in determining whether it comports with the Constitution. The novelty of the funding arrangement, after more than two centuries of constitutional experience, most likely means it is unconstitutional; OR Novelty is a feature of governance; new problems call for new solutions, and unless there is a clear-cut conflict with the constitutional text, the Court should defer to Congress’s decision to act on Chief Justice’s Marshall admonition that the U.S. Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs” (McCulloch, CB 53). Thursday, January 29: We discussed the material in Sections I.C.2.c.1 and I.C.2.c.ii. With regard to Section I.C.2.c.i (McCulloch v. Maryland), consider: The power of the federal government to establish a national bank: If Article I § 8 had a clause stating, “The Congress shall have the power to create a national bank,” would that have settled the issue in McCulloch, in your view? Why or why not? If it would, how should we regard the absence of such a phrase? Of 100 countries surveyed in 2009, thirty-five had constitutional provisions relating to a central bank and sixty-five did not (though of those 65, 22 states were party to a treaty relating to the central bank). BIS, Issues in the Governance of Central Banks (May 2009), at 59. If there were a new constitutional convention in the U.S., would you support adding something like Sections 223-225 (Supp. 95 of the South African Constitition to the U.S. Constitution? They provide as follows: 223. The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament. Primary object 224. (1) The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic. (2) The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters. Powers and functions 225. The powers and functions of the South African Reserve Bank are those customarily exercised and performed by central banks, which powers and functions must be determined by an Act of Parliament and must be exercised or performed subject to the conditions prescribed in terms of that Act. Note that the goals of the U.S. Federal Reserve System are currently specified by a statute. See 12 U.S.C. § 225a (“promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates”). Could the South African Parliament, consistent with § 224(1), adopt legislation requiring the Reserve Bank to pursue those three goals with equal emphasis? The Supreme Court just heard arguments in Trump v. Cook over whether to stay a lower court’s ruling that President Trump exceeded his powers in attempting to fire Lisa Cook, a Federal Reserve Board member. In ultimately deciding the issues relating to his power to remove Fed members, should the Court take into account concerns about whether undercutting the Fed’s independence would harm the economy? Why or why not? Cf. Justice Barrett’s question about an amicus brief that argued that granting the stay “could trigger a recession.” Supreme Court appears likely to prevent Trump from firing Fed governor, Scotusblog, Jan. 21, 2026. Should it matter that when the U.S. Constitution was being drafted, there was some talk about putting in a provision for a national bank, but there was no real push for it by its supporters out of fear it might be rejected? What was the significance of this absence in Maryland’s view? How does Marshall’s famous phrase, “we must never forget, that it is a constitution we are expounding” (CB 51), tie in to his response? What account of the origin of the Constitution does Marshall give? Why does it matter to his reasoning? Was the Constitution adopted by: The people of the United States? The States? Does Marshall imply a power under Article I § 8 (CB xxxix) to create a national bank? Or does he uphold Congress’s action as a means to exercise other powers given in Article I § 8 (what powers are those)? What is the difference between these two approaches? In what specific ways would the powers he point to be aided by having a national bank? Is there a sense in which Marshall’s approach renders Art. I § 8 cl. 6 (CB xxxix) (Congressional power to punish counterfeiting the Securities and current Coin of the U.S.) superfluous? Keep in mind what Marshall says about the U.S. mail and federal power to prosecute those who interfere with it. Suppose Marshall’s interpretation does make Art. I § 8 cl. 6 superfluous. What is Marshall’s view on whether it is ever acceptable to adopt an approach to the constitution that renders a provision superfluous? Compare his remarks at CB 53 (second paragraph, beginning “So, with respect to the whole penal code ...”) and his remarks at CB 53-54 (last paragraph, beginning with “In ascertaining the sense ...”) about the phrase “necessary and proper.” Consider the standard of review Marshall sets out for judicial determination of whether Congress has acted within its Article I § 8 powers: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. (CB 54) Would you call this minimal (or rational basis) scrutiny? Strict scrutiny? Something else? Marshall cautions that Congress cannot constitutionally make pretextual use of its powers. CB 55 (first paragraph). How would the Court distinguish a pretext from a genuine exercise of power? What was Maryland’s argument about the word “necessary” in the “necessary and proper clause”? How did it fit in with its argument about the nature of the Union and the constitution? What textual arguments might be used to respond to Maryland’s argument? What does Marshall say about the word “absolutely”? Where does it appear? Where does it not appear? What does Marshall say about the word “expressly”? Where does it appear? Where does it not appear? Why does it matter for Marshall that the necessary and proper clause is in Art. I § 8, rather than in Art. I § 9? Marshall regards the “necessary and proper” clause as supporting his conclusions. But what does his remark about holding a lighted taper to the sun (CB 54) indicate about its importance to his ultimate conclusion about the validity of the creation of the national bank? How much does history count in the interpretation of the Constitution? Consider the history recounted in his opinion at CB 49-50 and in the “Background” note at CB 57-58. With regard to the meaning of the word “necessary,” is the European Court of Human Rights’s decision in Dudgeon v. United Kingdom (Supp. 200-202) inconsistent with the ruling on the meaning of that word in McCulloch? What violation of the European Convention on Human Rights was alleged in Dudgeon? Is the right that was alleged to have been violated absolute? If not, why didn’t the UK (Northern Ireland) law fall within an exception to the right? How much is the Court’s holding on Congress’ power to establish a national bank based on (a) the Framers’ original intent, (b) history and precedent, (c) the structure of the Constitution, or (d) the text of the Constitution (or some combination thereof)? The power of a state to tax the national bank (regarding the second portion of the McCulloch opinion, at CB 55-57) (we will not get to this portion until Thursday): Even if Congress has the power to establish a national bank, what in the constitution prohibits a state from taxing it? Is there any textual provision that disables the state from doing so? Is there anything, for example, in Art. I § 10 that would prohibit it? What about Art. VI cl. 2 (the supremacy clause) (CB xliii)? What is Marshall’s structural argument regarding Maryland’s attempt to tax the bank? Why apply the label “representation reinforcement” (CB 60) to it? Even if one accepts Marshall’s contention that the power is the power to destroy (see CB 55 -- the two paragraphs beginning with “This great principle ...” and “That the power of taxing ...”), does it follow that it is the Court’s job to preserve the Bank from destruction by Maryland? With respect to Section I.C.2.c.ii (Putting a Constitution into Practice): Would it have been better, in your view, to include a provision giving Congress the power to: legislate “in all cases to which states are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual Legislation” (from a plan drafted by James Madison and proposed by Edmund Randolph of Virginia)? ; or make laws for the Peace, Order, and good government of the United States, in relation to all matters not exclusively reserved for the states (a phrase similar to that in Section 91 of the Canadian Constitution (“It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”)? What role did the Necessary and Proper Clause play in early post-ratification debates about the meaning of the Constitution? How and why, for example, was it thought to be relevant to the question of whether the President could fire federal officials? What practical implications might there be to grounding the President’s power to remove on (a) implied executive powers under Article II, versus (b) the Necessary and Proper Clause in Article I? What, if anything, does the Lynch reading suggest about original intent as a guide to interpretation? Does the history of post-ratification debates, set out by Lynch, show that once they were in government, some of the framers were willing to ignore or distort the text in order to pursue goals they thought beneficial to the nation? Or that they respected the generality of the language in the Constitution, and took it to encompass the exercise of powers (such as the creation of a national bank) that were not contemplated by the framers as they drafted the constitution or the people as they ratified it? Are the approaches taken by President Washington, members of cabinet, and members of the first Congress relevant to constitutional interpretation under the majority’s approach in Heller and CFPB v. CFSAA? Does Lynch accurately characterize the role that the Necessary and Proper clause played in McCulloch?

Assignments for the week of February 2: Tuesday, February 3: We will first complete our discussion of the material in Sections (questions here) . We will then move on to Section II.A.1 (Marbury). Consider: What criticisms could you make of Justice Marshall’s reasoning on the following issues: Is Marbury entitled to his commission? If so, is he entitled to a remedy? If so, does the Judiciary Act § 13 (CB 25, note*) give the Supreme Court original jurisdiction to grant him the remedy? Make sure you understand exactly what specific language in the Judiciary Act gave the Supreme Court jurisdiction, according to Marbury. Section 13 provided: And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. What criticisms could you make of the Court’s reasoning on the following issues: If the Judiciary Act § 13 (CB 25, note*) gives the Supreme Court original jurisdiction to grant Marbury the remedy he seeks, is the grant of jurisdiction by the statute consistent with the Constitution (Art. III)? Was Madison a “public Minister” under Art. III § 2 cl. 2? (“In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the upreme Court shall have original Jurisdiction.”)? Who is encompassed by that phrase? Note that the phrase “other public Ministers and Consuls” also appears in Art. II § 2 cl. 2 (power of the president to appoint “Ambassadors, other public Ministers and Consuls”), and in Art. II § 3 (Power of president to “receive Ambassadors and other public Ministers”). Does it usage in these two parts of Art. II tell us anything about its meaning in Art. III? Why would the framers have given the Supreme Court original jurisdiction in cases affecting ambassadors, other public ministers, and consuls? If the term “public ministers” does not include U.S. cabinet officials, is Section 13 of the Judiciary Act consistent with Article III? Consider how the following hypotheticals would come out under § 13 of the Judiciary Act (CB 25, note*) An individual sues a foreign ambassador to the U.S. Where must the suit be brought? The foreign ambassador wishes to sue someone. What are his options? Ames v. Kansas, 111 U.S. 449, 464-65 (1884), upheld the constitutionality the options granted in the Section 13. Illinois v. Milwaukee, 406 U.S. 91 (1972), which is cited in CB 29-30, note 2.b, reaffirmed Ames. Are the results you reach under § 13 consistent with Article III of the Constitution? Note: The following table may be helpful in thinking through the different possible meanings of Art. III, § 2 cl. 2:   Supreme Court’s Original Jurisdiction Is Concurrent Supreme Court’s Original Jurisdiction Is Not Concurrent Listing of jurisdiction in Art. III, § 2 cl. 2 is exhaustive Marbury + Ames Marbury + opposite of Ames Listing of jurisdiction in Art. III, § 2 cl. 2 is nonexhaustive Opposite of Marbury + Ames Opposite of Marbury + opposite of Ames If Section 13 of the Judiciary Act is not consistent with Article III, what should the Supreme Court do? Is there anything in the text of the constitution that: expressly provides for judicial review? does not expressly provide for judicial review, but clearly assumes its existence? How much if at all should the following factors count in determining whether the Court has the power of judicial review: The fact that the constitution is written The fundamental nature of a constitution in a legal order The intent of the framers How well a constitution would function as a constitution without judicial review. Marshall states in passing that the question of what the Court should do in the face of a statute it believes is beyond Congress’s power to enact is important but relatively easy to answer (“a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.”) (CB 26, last full paragraph). Do you agree that it is fairly straightforward? Compare how judicial review of federal legislation is handled in the South African Constitution. How does judicial review in South African courts other than the Constitutional Court (the highest court with respect to constitutional matters) work? See § 172 (Supp. 80). How is this different from the U.S. model? Would you favor the addition to the U.S. Constitution of a route to rulings on the consitututionality of federal legislation prior to full enactment as found in §§ 167 (Supp. 79), 79 (Supp. 60), 80 (Supp. 60), and 84(2)(c) (Supp. 61)? Thursday, February 5: We completed the material in Section II.A.1 (Marbury) and then discussed the material in Sections II.A.2 (Martin v. Hunter’s Lessee) and II.B (Judicial Exclusivity in Constitutional Interpretation). With respect to Section II.A.2 (Martin v. Hunter’s Lessee): What is the statutory basis for the Supreme Court’s jurisdiction in Martin v. Hunter’s Lessee? Make sure you can point to specific language in § 25 of the Judiciary Act. Note: Learning to read statutes is important. You will do the most to improve your skills if you first parse the statute on your own -- which you will find at Supp. 224 -- before you look at the color-coded version at Supp. 225. Suppose the case had gone in Martin’s favor. Would the Supreme Court have had jurisdiction under § 25 (Supp. 228) to hear an appeal by Hunter? What is the argument that § 25 (Supp. 224) violates the Constitution by providing for Supreme Court review of decisions by a state’s highest court where the state courts have adjudicated an issue that falls within the federal judicial power (Art III §2 cl. 1)? What arguments does the Court marshal to refute those arguments? Focus on these issues in particular: The Supremacy Clause (in Art. VI): to what extent does it support the power of Supreme Court to review the final judgments of state supreme courts? The Judicial Power of the United States (Art. III § 2 cl. 1): consider that under Hunter’s argument (supporting the Virginia supreme court’s position), if matters within the federal judicial power were presented and resolved in state courts, and if there were no possibility of Supreme Court review of those holdings, those matters would never be presented in federal court. Would that be consistent with Art. III §. 2 cl. 1? Uniformity: should it matter that if the Supreme Court had no power to review state supreme court judgments, there might be different interpretations of the U.S. Constitution in different states? State sovereignty: Why does Justice Story observe that the Constitution is “crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives”? What examples does he give? With respect to Section II.B (Judicial Exclusivity in Constitutional Interpretation), consider: Is it wrong for the President or a governor to disagree with a Supreme Court decision? Do other branches of the federal government, or the states, have the power to make their own determinations of what is constitutional? Consider these examples: Cooper v. Aaron (1958) (CB 40) Rep. Nancy Pelosi spoke against proposals to try to undo the Supreme Court’s decision in Kelo v. New London Connecticut (a takings clause decision [which we are not reading]): “Arguing that Congress has no business interfering with the ruling unless it wants to amend the Constitution, Mrs. Pelosi said: ‘This is almost as if God has spoken.’” Do you agree as to the finality of the Supreme Court’s rulings? President Jackson’s veto message (Supp. 226-227) Newt Gingrich’s 2012 Presidential primary campaign cited Jackson’s Veto Message with approval, see 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), p. 17, and concluded (p. 22): In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans.    For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority. Do you agree? Why or why not? Is his position distinguishable from Jackson’s? You can find the full position paper here (optional). With respect to Section II.C.1.a (Political Control/Criticisms, Amendments, Appointments, Impeachment), consider: In general, what tools do the political branches have to limit or push back against the Supreme Court’s power? How effective are they? What tools should be available to Congress? Would it be consistent with the role of the Court under the Constitution to expand the size of the Court, allowing a president to nominate more members? What about a bill decreasing the size of the Court, providing that as Justices retired or passed away, no seats would be filled until the Court reached a smaller size, in order to prevent a president from making appointments? Consider then-President Obama’s criticism of Citizens United (the campaign finance decision) in his 2010 State of the Union address -- attended by Chief Justice Roberts and some other members of the Court. See Supp. 228-232. Do you think his remarks were consistent with the proper role of the political branches vis-à-vis the Court? Was Justice Alito’s silently mouthed response? Why or why not, in your view? What about a president suggesting that a Justice should be impeached because of his or her vote and/or opinion in a controversial case? What is your view of the following proposals from Newt Gingrich’s 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), pp. 21-22: Impeachment Power. Judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the legitimate powers of the two other co-equal branches of the federal government can be subjected to impeachment.... An impeached judge who escapes conviction in the Senate due to its 2/3 voting requirement may nevertheless also face the possibility of his judgeship simply being abolished, ... which would require fewer votes in the Senate. ... Congress can [also] create specific statutory measures that govern the impeachment of federal judges. [Examples of impeachable offenses include] ... the issuing of unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature. [This] will send an unmistakable signal to all federal judges .... [Note Speaker Mike Johnson’s recent statement that “I’m for it” when asked about impeaching judges who have ruled against the Trump administration, saying that “some of these judges have gotten so far outside the bounds of where they’re supposed to operate [that] it would not be, in my view, a bad thing for Congress to lay down the law, so to speak, and ... make an example of some of the egregious abuses.” Supp. 233] Judicial Accountability Hearings. Congress can establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them to explain their constitutional reasoning in certain decision and to hear a proper Congressional Constitutional interpretation.... Spending Power. Congress has the power of the purse. It can reduce or eliminate funding of Courts to carry out specific decisions or a class of decisions. Executive and Legislative Branch Adoption of Originalism. Both the executive and legislative branches should be encouraged to adopt originalism as a mode of constitutional analysis when deciding on the constitutionality of executive and legislative branch actions as well as the constitutionality of legislation.... Ignoring a Judicial Decision. In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans.... Leonhardt remarks that “During periods of intense political debate in the U.S., the Supreme Court often becomes a target of harsh criticism.” Supp. 230. Is that worrying? A problem, but not major? A good feature of the system? What factors contribute to or detract from the legitimacy of the Court? Of Congress? Of the Presidency? What constitutes a crisis in the legitimacy of the Court? Is what makes the Court “legitimate” different from what makes (say) Congress “legitimate”? If there is a present or looming legitimacy crisis with respect to the Court, what is the best response? Are some responses themselves either illegitimate or ill-advised? How does the question of political control over the Supreme Court relate to this question about a legitimacy crisis? Is it appropriate under the Constitution, in your view, for members of the Court to engage in the kinds of activities described in the Zeitz article (See Supp. 234-237)? Why or why not? Does the long history of such activities have any bearing on your answer? What are the arguments for and against the following propositions: The 27th Amendment was adopted, but by a process that makes no sense as a way of adopting an amendment to any constitution. The 27th Amendment was not adopted; even if the process is one that could be valid, it is not a process that the U.S. Constitution permits. Whether or not the 27th Amendment is part of the Constitution, the matter it addresses is not the kind of matter that belongs in the Constitution, because (a) it is too specific and not sufficiently weighty, and/or (b) it is unnecessary, given what Art. I § 6 cl. 1 (first sentence) provides. What are the arguments for and against the following proposition: “The ERA has been adopted and is now part of the Constitution.” What are the arguments for and against the following propositions: Since there are more than 34 states with outstanding requests to call a constitutional convention, Congress has an obligation under Article V to call a constitutional convention. Under Article V, such a convention may propose amendments on any matters it deems appropriate.

Assignments for the week of February 9: Tuesday, February 10: We will discuss the material in Sections II.C.1.a (Political Control/Criticisms, Amendments, Appointments, Impeachment), Section II.C.1.b (Control of Jurisdiction), and II.C.2.a (Advisory Opinions). With respect to Section II.C.1.a (Political Control/Criticisms, Amendments, Appointments, Impeachment), consider: In general, what tools do the political branches have to limit or push back against the Supreme Court’s power? How effective are they? What tools should be available to Congress? Would it be consistent with the role of the Court under the Constitution to expand the size of the Court, allowing a president to nominate more members? What about a bill decreasing the size of the Court, providing that as Justices retired or passed away, no seats would be filled until the Court reached a smaller size, in order to prevent a president from making appointments? Consider then-President Obama’s criticism of Citizens United (the campaign finance decision) in his 2010 State of the Union address -- attended by Chief Justice Roberts and some other members of the Court. See Supp. 228-232. Do you think his remarks were consistent with the proper role of the political branches vis-à-vis the Court? Was Justice Alito’s silently mouthed response? Why or why not, in your view? What about a president suggesting that a Justice should be impeached because of his or her vote and/or opinion in a controversial case? What is your view of the following proposals from Newt Gingrich’s 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), pp. 21-22: Impeachment Power. Judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the legitimate powers of the two other co-equal branches of the federal government can be subjected to impeachment.... An impeached judge who escapes conviction in the Senate due to its 2/3 voting requirement may nevertheless also face the possibility of his judgeship simply being abolished, ... which would require fewer votes in the Senate. ... Congress can [also] create specific statutory measures that govern the impeachment of federal judges. [Examples of impeachable offenses include] ... the issuing of unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature. [This] will send an unmistakable signal to all federal judges .... [Note Speaker Mike Johnson’s recent statement that “I’m for it” when asked about impeaching judges who have ruled against the Trump administration, saying that “some of these judges have gotten so far outside the bounds of where they’re supposed to operate [that] it would not be, in my view, a bad thing for Congress to lay down the law, so to speak, and ... make an example of some of the egregious abuses.” Supp. 233] Judicial Accountability Hearings. Congress can establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them to explain their constitutional reasoning in certain decision and to hear a proper Congressional Constitutional interpretation.... Spending Power. Congress has the power of the purse. It can reduce or eliminate funding of Courts to carry out specific decisions or a class of decisions. Executive and Legislative Branch Adoption of Originalism. Both the executive and legislative branches should be encouraged to adopt originalism as a mode of constitutional analysis when deciding on the constitutionality of executive and legislative branch actions as well as the constitutionality of legislation.... Ignoring a Judicial Decision. In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans.... Leonhardt remarks that “During periods of intense political debate in the U.S., the Supreme Court often becomes a target of harsh criticism.” Supp. 230. Is that worrying? A problem, but not major? A good feature of the system? What factors contribute to or detract from the legitimacy of the Court? Of Congress? Of the Presidency? What constitutes a crisis in the legitimacy of the Court? Is what makes the Court “legitimate” different from what makes (say) Congress “legitimate”? If there is a present or looming legitimacy crisis with respect to the Court, what is the best response? Are some responses themselves either illegitimate or ill-advised? How does the question of political control over the Supreme Court relate to this question about a legitimacy crisis? Is it appropriate under the Constitution, in your view, for members of the Court to engage in the kinds of activities described in the Zeitz article (See Supp. 234-237)? Why or why not? Does the long history of such activities have any bearing on your answer? What are the arguments for and against the following propositions: The 27th Amendment was adopted, but by a process that makes no sense as a way of adopting an amendment to any constitution. The 27th Amendment was not adopted; even if the process is one that could be valid, it is not a process that the U.S. Constitution permits. Whether or not the 27th Amendment is part of the Constitution, the matter it addresses is not the kind of matter that belongs in the Constitution, because (a) it is too specific and not sufficiently weighty, and/or (b) it is unnecessary, given what Art. I § 6 cl. 1 (first sentence) provides. What are the arguments for and against the following proposition: “The ERA has been adopted and is now part of the Constitution.” What are the arguments for and against the following propositions: Since there are more than 34 states with outstanding requests to call a constitutional convention, Congress has an obligation under Article V to call a constitutional convention. Under Article V, such a convention may propose amendments on any matters it deems appropriate. With respect to Section II.C.1.b (Control of Jurisdiction), consider: How freely (or not) should Congress use its power to control the federal courts’ jurisdiction? To what ends? Would either of these bills be a constitutional exercise of Congress’s power under Article III? You may assume that the underlying substantive issues under the First Amendment’s religion clauses are substantial but not open and shut. In answering this question, consider the text of the Constitution; the framers’ intent; the function of judicial review; and the case law -- particularly, McCardle, Yerger, and Klein. Note: these are somewhat cryptic cases over which much ink has been spilled; you are not likely to have a definitive answer from them about the constitutionality of the statute, but you should understand what the arguments would be in light of them. The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. No court created by Act of Congress shall have any jurisdiction to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. Assume simply for the sake of argument that statutes a and b, considered separately, were constitutional. Would the following bill be a constitutional exercise of Congress’s power under Article III? No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any case arising out of any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to restrictions on group religious worship enacted in response to a pandemic. Consider this bill: § 1. Any state or local public school system receiving federal education funds shall require a daily moment of silence in classrooms, presided over by a minister, priest, rabbi, or imam. § 2. No federal court shall find, in the event of any challenge to this statute, that the moment of silence is in any way coercive or inhibiting of anyone’s freedom of religion, and the court shall dismiss for want of jurisdiction any case in which such a claim is asserted. Assume that Section 1 of the bill is incompatible with the First Amendment under Supreme Court caselaw on the Establishment Clause. Is Section 2 constitutional? Should the Supreme Court exercise great caution in the face of potential cutbacks to its jurisdiction? Consider H.R. 2028 (2004), which proposed a new statute, 28 U.S.C. § 1632, as follows: No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution, of the Pledge of Allegiance ... or its recitation. By way of background, the Pledge of Allegiance is as follows: I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. For a brief history of the Pledge, you might look at Bomboy, The History of Legal Challenges to the Pledge of Allegiance, National Constitution Center, June 14, 2023 (Optional). In 2003, a challenge to having students collectively recite the Pledge in public school classrooms (a common practice) was brought before the Supreme Court. It asserted that because of the phrase “under God,” the practice violated the First Amendment’s Establishment Clause (prohibiting states or the federal government from establishing a religion). While the case was pending before the Court, Congress approved a resolution that expressly reaffirmed the reference to God in the Pledge. The Supreme Court dismissed the appeal on the ground of lack of standing in 2004. Later that year, the House approved the above bill. The bill failed in the Senate. Does this sequence of events show the danger of Congress’s power to limit jurisdiction? Or does it show why that power is a useful corrective to the Court’s power? Note that Newt Gingrich proposed using Congress’s power to control federal courts’ jurisdiction over various issues, and would also add in the statute “that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal from office.” 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), pp. 20. With respect to Section II.C.2.a (Advisory Opinions), consider: What if anything in the U.S. Constitution forbids the U.S. Supreme Court from giving advisory opinions? In answering this question, people often refer to Article III (what provision?). Is that the provision to which the Justices pointed in their letter to President Washington (CB 77)? If you’re interested in seeing the letter that Thomas Jefferson wrote to the Court on behalf of President Washington, you can find it through the Library of Congress site. The Justices’ full response can be found here. These materials are entirely optional. Does the U.S. Constitution forbid state courts from giving advisory opinions? Why or why not? Is it consistent with the Constitution for the federal courts to grant declaratory judgments? What does the Fordham Law Review comment (Supp. 257) indicate about whether the ban on advisory opinions is necessarily a part of the Constitution? Thursday, February 12: We will discuss the material in Sections II.C.2.b.i (Allen v. Wright and related cases) and Sections II.C.2.b.ii.a (Lujan v. Defenders of Wildlife). With respect to Section II.C.2.b.i (Allen v. Wright and related cases), consider: How desirable is judicial self-restraint through standing doctrine? As to Allen v. Wright: What exactly is the claimed violation of the law: what is the IRS doing that the plaintiffs say is illegal? On what do they base the claim of illegality? Why weren’t the plaintiffs ultimately allowed to bring their action? Was it a determination that in fact the IRS was not violating the law? What is the personal injury the plaintiffs suffered by the plaintiffs as a result of the IRS’s alleged violation of the law? Is it that they can’t get into the government-subsidized racially discriminatory schools? Is it the stigmatizing injury caused by racial discrimination? Is it the harm to the task of desegregating the public schools? What was the problem with causation and redressability, according to the majority? Why do those problems lead it to conclude that Art. III standing is absent? If the link between the injury asserted and the responsibility of the IRS for the injury, and the link between the injury asserted and the prospect of relief that meainingfully addresses the injury, are both as weak as the majority concludes, why do you think plaintiffs brought the lawsuit? How might you characterize the injury differently from the way the majority characterizes it, so that the causation and redressability requirements would be satisfied? What does Justice Brennan’s dissent suggest? What are the policies or constitutional considerations the Court needs to take into account in deciding standing, according to the majority? What criticism of the majority’s approach does Justice Stevens make? Who has the better of the argument on this point, in your view? Is Department of Commerce v. New York consistent with Allen v. Wright? What kinds of injuries did the plaintiffs allege in FDA v. Alliance for Hippocratic Medicine? Consider what the Court ruled for each of the injuries alleged, and whether the problem was lack of injury, lack of causation, or lack of redressibility (or some combination of them): Injuries to individual plaintiffs Conscience injury Diverting resources and time to treat patients with mifepristone complications Injury to the medical association (Alliance) What is the Court’s response to the plaintiffs’ argument that if none of them have standing, there is no way for the validity of the FDA regulations to brought before a court for judicial determination? Is the Court’s response consistent with Marbury v. Madison, in your view? Why or why not? Note that the ruling in Alliance for Hippocratic Medicine was unanimous, and that Justice Kavanaugh’s opinion reads something like a primer on standing, treating its points as obvious. Yet the district court found standing and ordered mifeprestone off the market, and the Fifth Circuit affirmed the standing ruling (and partially affirmed the district court’s holding on the merits). How could this happen? Consider these two possible explanations for the divergence between the lower courts and the Supreme Court: The law of standing is too uncertain for lower courts to administer consistently. The law of standing is easily manipulated, so that a court that wants to decide an issue can do so. Are there other explanations you can think of? If you believe the first explanation is correct, does the opinion in Alliance adequately address the problem? With respect to Section II.C.2.b.ii.a (Lujan v. Defenders of Wildlife), consider: What was the alleged injury to the plaintiffs in Lujan? Did the Court accept that they were injured but find the nexus lacking, or did the Court think there was a problem with the injury component of standing? Suppose the government was planning to cut down a citrus tree in your yard because it had canker, an incurable disease that mars citrus fruit, and which is highly contagious to other citrus trees in the vicinity. Should you have standing to challenge that action? Should your neighbor? Suppose your neighbor thinks that your tree has canker and that it will spread to hers. The state decides not to cut down your tree. Should your neighbor have standing to challenge that decision? Suppose a small forest of endangered trees is going to be cut down in Sri Lanka under a program partially funded by the U.S. government. Should you have standing to challenge the decision to provide aid to that program? Should it matter if: You are a professional biologist who studies those trees? You are a cancer patient and those trees are an important source of an anti-cancer drug? You are concerned about the impact of diminishing ecosystem diversity on the global environment? There is a federal statute stating that everyone has the right to live in a world in which ecosystem diversity is preserved? Consider the following statements. Do you agree with any of these statements? Why or why not? Standing is a constitutional requirement. Accordingly, it is the job of the Court, not Congress, to determine what satisfies the standing requirement. Any other approach would make a mockery of Marbury v. Madison’s statement that “It is emphatically the province and duty of the judicial department to say what the law is.” Congress has the power, through legislation, to create new rights. Violation of those rights causes injury. Thus, while standing is a constitutional requirement, Congress has a critical role in recognizing or creating new kinds of injuries. The Court should respect that role by according deference to Congress’s recognition of a new kind of injury. Failure to do so would be a “bold and daring usurpation” (McCulloch) by the Court of Congress’s power. The requirement of standing should never operate to entirely preclude the Court from construing any part of the Constitution. A complete lack of the possibility of judicial construction of any given part of the Constitution renders that part a nullity as a practical matter. The framers couldn’t have intended Article III to have that effect. In Lujan, what was the holding of the Court on redressability? What was Justice Scalia’s opinion on the matter?

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