Constitutional Law is Most Exciting

Of all the courses you will study in law school, constitutional law will probably be the most exciting, since the Constitution is the ultimate law of the country. The way it is interpreted can mean the allowance or prohibition of any federal, state, or local governmental activity. Generally speaking, that's what the study of constitutional law is all about. Some governmental activity is challenged, and the Supreme Court tells us whether it is valid or not.

Things which have continued for years without change suddenly are altered because some lawyer seemingly has convinced the Court to accept a new theory or declare a new rule. Most of the time, however, research will show that the ideas behind it have been around for a long time, and attempts to put them across have been orchestrated before this and other courts for years.


So you will be aware of how the Supreme Court rulings get down to the lower courts, keep the following in mind:

There are fifty-one major legal jurisdictions in the United States: fifty states and the federal government. Each has its own set of laws and its own rules of procedure. All state and federal courts are bound by the federal Constitution and the decisions of the United States Supreme Court. State courts are bound by their state constitutions, and by the decisions of their highest state court. If a state wants to, it can give all persons within its borders greater protection than the federal Constitution requires. The federal district courts are bound by the rulings of the United States Circuit Court of Appeals for the circuit in which they are located. On a federal constitutional question, a federal district court can, in a proper case, overrule the highest court of a state.

Many people erroneously believe that the entire first ten amendments, constituting the Bill of Rights of the federal Constitution, are automatically applicable to the states. They are only applicable to the federal government, except for those specific words which have been made applicable to the states by Supreme Court decisions. There is, however, an ongoing legal controversy over whether or not a sentence in Section 1 of the Fourteenth Amendment can be used to make the entire Bill of Rights applicable to state activities:

No State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has never accepted this argument. While some of the justices have occasionally indicated a belief in that direction, collectively they have been extremely cautious in spreading the blanket, preferring to expand the constitutional protections on a case-by-case basis.

New Ideas

How do new ideas get generated in the first place? As an example, let us look at Article I, section 8, subdivision 1, of the Constitution:

The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States. . . .

The thinking lawyer will read this and perhaps observe that, while Congress is given the "power to lay and collect taxes, duties, imposts and excises" (four items), only "duties, imposts and excises [three items] shall be uniform throughout the United States." Could the exclusion from the uniformity clause possibly mean that the imposition and collection of federal taxes may be done on a non-uniform basis throughout the country? Does this give Congress the power to pass legislation taxing New Yorkers differently from Oregonians? Does such a theory conflict in any way with Article I, section 9, subdivision 4:

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

What about Article IV, section 2, subdivision 1?

The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Does the Sixteenth Amendment affect the validity of this theory?

The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

This discussion is an illustration of just one way that novel legal ideas may happen to be created. Normally, lawyers don't just sit around and say, "What can I come up with today that will make legal history?" Theories are developed in trying to work out possible solutions to actual problems.

When I successfully represented the State of California and argued Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655, 41 L.Ed. 2d 551 (1974) in the United States Supreme Court, I was advocating the validity of a California Constitution provision which denied the right to vote to any person who had been convicted of a felony. The State Supreme Court had several years previously ruled that this provision applied only to a felony which had some connection with the elective process, and left the determination of that question to each county clerk.

As a result of many different interpretations, persons who had completed their sentences were allowed to vote in one county but not in another. Thus, in Los Angeles County, a conviction of rape did not disenfranchise; but in the same county, statutory rape did, on the theory that seducing a minor involved some element of fraud or trickery which carried over to the possibility of corruption in the casting or counting of votes. The same county prohibited a check forger or embezzler from voting, but let a bank robber do so. In another county, there would be a different result, depending on the whim or bias of the county clerk as to the nature of the particular crime. There was an obvious denial of equal protection by the state to convicted felons who had finished their terms and desired to vote.

Privileges or Immunities

The appellant claimed that the California Constitution provision violated that part of Fourteenth Amendment, Section 1, which reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.

Research indicated that some old Supreme Court cases gave an inference that the Fourteenth Amendment, Section 2, might apply by analogy. Ostensibly, it dealt with the number of representatives a State would be given in Congress, based on the population, but reduced the count if certain persons were disenfranchised. It provides:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such Stale, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The Court accepted my argument that under this section, state denial of equal protection in voting was not prohibited, merely penalized, and not even that in the case of rebels or criminals: it took the Fifteenth Amendment to let blacks vote; the Nineteenth Amendment to let women vote; the Twenty-sixth Amendment to let minors vote; and it will take another amendment to let felons vote.

So you will have the whole story, after this case the California Constitution was amended to delete the prohibition against voting by felons.

As you go through your courses, you will realize that new concepts sometimes arise in areas which have for years been considered solid and unchangeable, because some lawyer interpreted the old language in a new way. But, as in this instance, there usually has been some prior discussion foreshadowing the change.

Generally, outside of some passing reference in your constitutional law course, there will be very little stress on the techniques used to interpret statutory language. One important thing to do is to get copies of each of the variations in a bill, from the time it was first introduced by a legislator, through all the amendments until final passage.

There are numerous rules of statutory interpretation, all laid out in the legal treatises and encyclopedias found in any good law library. They have been developed over the years by the courts and are often used to rationalize a desired position. Years ago, a learned judge wrote an article describing the process of judicial thinking in the development of new law. He concluded that the opinion writer first gets an unrealized subconscious bias which permeates his analysis and energizes his research in some particular direction; then he reaches his conclusion and goes looking for law to back up his position, creating new rules if necessary by stretching old ones almost beyond recognition, but always leaving them identifiable to satisfy compliance with the doctrine of stare decisis: to stand by decisions and not to disturb matters which have been settled.