14 Ways to Interpret the Constitution

Well, it isn't exactly "50 Ways to Leave Your Lover," but this Huffington Post piece does give a nice concise explanation of the breadth of Constitutional interpretation.  In my Legal Environment class, I think it is important for students to understand that there is no one, single, right way to interpret the Constitution (despite the statements in the judicial election ad below).  However, I don't have a lot of class time to devote to the details.  It is always a question of how many layers of the onion should be peeled back to explore a legal principle in a survey law course. This article gives the opportunity to expose students to the concept - Constitutional interpretation is broad, complex, nuanced and uncertain - without overburdening them with details and without taking up other valuable class time.

"Commitment to properly interpreting the Constitution":

Crash Course: Judicial Review

Here is the latest feature in the PBS series on Government. These videos cover a lot of ground in a short clip.  Maybe too long to show in class, but not too long for an out-of-class assignment.

"Our Rights Come From God . . . As Determined by Law-Makers."

According to Senator Ted Cruz's message for Constitutions Day 2016, one of the two transformative premises set out by the US Constitution is that, "Our rights come from God."



I didn't recall that part of the Constitution, but Ted is a Harvard Law School grad, so I thought maybe I missed something.  So I googled up a transcript of the Constitution at the National Archives site. Then I executed "find" functions for "God," "Creator," and "supreme being." I didn't get any hits. I didn't think I would.

At least one authoritative legal scholar says that the determination of what rights God has given us is a decision that is made by people.  So if people are deciding what rights come from God, then don't our rights ultimately come from people?




And when some people say that their God-given rights to refrain from assisting in the marriage of two women allow them to ignore the God-given human dignity of the wedding couple to be free from unwarranted discrimination, won't people (judges) have to make a decision based on what makes for a civil and orderly society? These seem much more like earthly matters than heavenly ones.

This all seems a bit more complex and nuanced than simply stating that "our rights come from God."

Thought Provoking Law Quote: What is the Statutory Interpretation Process?

The quote below from respected legal commentators on procedure is somewhat disheartening to those who seek absolute predictability and objectivity in the legal system.  As we know, those qualities run only so deep.

“Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”

-          Professors Hart and Sacks writing in The Legal Process.

In the case below, the Rule of the Last Antecedent may resolve the dispute, "if the Supreme Court decides to apply it."  Or the court may apply the Series Qualifier Cannon, which requires exactly the opposite interpretation from the Rule of the Last Antecedent. Or perhaps after failing to find clarity in the plain meaning of the text, the legislative intent or the public policy, the Court will just say, "Oh, the hell with it!" and apply the Rule of Lenity.  Or, maybe they won't. 

What is the difference between a statue and a statute?

Judicial Selection by Election and the Rule of Law

A recent federal lawsuit challenges the Alabama electoral process for selection of state judges.  The allegation is that statewide judicial selection assures the failure of minority candidates for the bench. Think Progress reports:

The lawsuit notes that since 1994, every African American candidate that has run for any of the three top courts has lost to a white candidate. Only two black judges have ever been elected to the state Supreme Court, and zero have served on either the Court of Criminal Appeals or the Court of Civil Appeals in the entirety of the state’s history.

State Judicial elections were employed from the very founding of the nation as a way to ensure judicial accountability and counter elitism and political cronyism in judicial selection.  But judges are supposed to be accountable to the rule of law, not to popular sentiment. The string of videos of campaign ads below raise significant questions about judicial fidelity to the rule of law. They seem to use code phrases and images to portray a fidelity to political ideology or religious principles or popular "values."  Some promise "proper" interpretation of the Constitution - whatever that means.

What does it take to get elected to a judicial position?  Is the belief that judges adhere to a "rule of law" just a quaint relic of judicial philosophy?  Or is law inherently constituted of a judge's background, beliefs, upbringing, prejudices, "values," religion, education, political ideology and world view?  Do we know this, implicitly, and cling publicly to the "rule of law" to maintain legitimacy? What do we deduce from these ads?

"Proper" Constitutional Interpretation:

Judges and Faith and Values:


 Judges and Church Participation:






Judges and Life Experience:

History, Law and Originalism

It seems appropriate to follow up the day after the 150th anniversary of the end of the Civil War with a story about South Carolina.

History and the advancement of thought can be difficult concepts for the proponents of originalist interpretation of the Constitution.  Legal instructors have regularly shared with their students the fact that the same Congress who passed the 14th Amendment demanding "equal protection of the laws" also segregated the Washington DC schools on the basis of race.  These kinds of dichotomies in judicial interpretation and modern social thought are fascinating.  The blog post linked below does more than ample justice to its provocative title.  I would not attempt to summarize it or otherwise diminish its concise and powerful message on history, law and originalism.  I hope you enjoy:

South Carolina to SCOTUS: We Can Dsicriminate Against Women, So Why Not Gays?

Click here to read the South Carolina brief for yourself.

Click here to read a related post where Justice Scalia, orginalist-in-chief, confirms that the 14th Amendment should not prevent discrimination against women.

Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

Lopez:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas

4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

Raich:

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas

6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules? 

Law Must Have Legitimacy - or at Least the Appearance of it.

Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a  great degree on the law's legitimacy - or at least the belief that the law is legitimate.  That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law).  Last week, this blog featured a video from Judge Posner talking about judicial decision-making.  In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do.  So they dress the justifications for their decisions up in fancy constitutional theories.  Those "fancy theories" serve to legitimize the decision.  That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc.  Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.

Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.

Here is Justice Breyer talking about the importance of legitimacy:


Here is a clip from the movie "The Man of the Year."  The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy.  On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip.  If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice.  We wouldn't want any of that learning going on for free!)

Judicial Decisions Are Based on the Rule of Law. Right?

In the video below, Federal Appeals Court Judge Richard Posner talks about judicial decision-making. Students might be surprised to hear that judges often decide cases based on their feelings; political feelings, moral feelings or emotional feelings. A judge may be more inclined to decide a case based on the social outcomes of the decision rather than "fancy theories about the Constitution."

Is this the way our BLAW texts describe judicial decision-making?  If not, why not? This isn't really controversial thinking among those who study and write about the topic. Do we continuing to perpetuate myths about the law in order to preserve its legitimacy?

To be educated people, our students need to to be exposed to the nuance of judicial decision-making. The Legal Environment class that we teach them is likely the only law class that they will ever take. These issues must be raised.

"A Person's a Person . . ."

In the Dr. Seuss classic, Horton Hears a Who!, the philanthropic pachyderm proclaims that "A person's a person no matter how small." The Supreme Court version might read, "A person's a person even a corporate cabal."

To draw attention to the claimed absurdity of the notion of corporate "personhood," a Marin County California man has, for the last ten years, been driving in the "2 person carpool" lane with a stack of corporate documents in the passenger seat hoping to be ticketed for a violation. He recently got his wish and challenged the ticket in court on the "a person's a person..." theory. No, he was not successful in obtaining a court's finding in his favor.  But then, I think his real object was to get bloggers like me to write about his case and suggest that it would be an amusing yet thought provoking example to use in your law classes. So, here it is.

Jonathan Frieman, JD, corporate avenger:

Historical Interpretation of the 2d Amendment

The gun-control debate is likely to be in the forefront of the news for some time to come.  In the spirit of "seizing the teachable moment" students can be directed to engage in a number of intellectually challenging and educational debates or thoughtful reflection on the relationship between law and society (using law to address social problems, public policy decision-making and the rule of law); on the legislative process (effect of lobbying, public hearings and comment); and on constitutional interpretation (2d amendment).  I always thought it odd that Justice Scalia, long known as an originalist would deviate from the language of the amendment to consider the intent of the framers in the landmark decision of DC v. Heller.

From a 2008 interview with CBS's Leslie Stahl:

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

From DC v. Heller:

If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny.

- U.S. Supreme Court Justice Antonin Scalia in District of Columbia v. Heller (2008)

In class, I often juxtapose Justice Scalia's quote with that of "Founding Father" and Revolutionary, Samuel Adams:

"Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

It doesn't seem to me that Adams was terribly interested in protecting the right of citizens to rise up and bear arms against the Republic.  In fact, I had always thought that Shays's rebellion was one of the precipitating events for the calling of the Philadelphia Convention.  When former colonial army captain Daniel Shays led an armed rebellion against the Supreme Judicial Court of Massachusetts in 1786, the federal government was powerless to respond. This deficiency fueled the fires for reconsideration of the Articles of Confederation.

In early 1787 John Jay wrote that the rural disturbances and the inability of the central government to fund troops in response made "the inefficiency of the Federal government [become] more and more manifest."

So, far from the 2d Amendment protecting the possibility of a citizen's militia rising up against the government, I though the 2d Amendment was written to counter against the likelihood of a citizen's militia rising up against the government.

Shouldn't the interpretation of the 2d Amendment rest on actual historical evidence rather than on ideology? Students should take the opportunity to consider that gun control arguments from both the left and the right may be overlooking important historical evidence. Students should be made aware of the explanation of the 2d amendment as described in the blog post linked here. It is a position that I find surprisingly absent from the modern gun control debate, but which is an important part of the understanding of the meaning of law and constitutional interpretation.

The Nuance of Judicial Decision-Making

Below are two videos about Judicial Decision-Making. The first is from Supreme Court Associate Justice Samuel Alito's confirmation hearings. In it, he describes how justices are bound in their decision-making to follow the rule of law as expressed through precedent.  The second video features U. of Maryland Law Professor Sherrilyn Iffel explaining how diversity in a court's make-up is important to the decision-making process.

Students may wonder if the views expressed in these videos are inconsistent. If there is a "rule of law" and judges are bound to follow it, then why would diversity on a court make a difference? Of course, these videos are not inconsistent.  But it is this nuance of what a "rule of law" means and what goes into judicial decision-making that is often difficult to convey to undergraduate students.

One of the most rewarding aspect of teaching undergraduates is feeling a part of this process where students evolve out of their "civics class" type understandings of the legal system into educated adults with a more mature understanding of the relationships between law and society.

Half as Much: Musical Analogy of Interpreting a Statute

In prior posts (see list below) I have suggested the process of musical interpretation is an apt analogy for the process of legal interpretation.  A musical composition is created and contains principles of melody, rhythm, tempo, and lyrics.  These principles represent the law of the song much the way the words and intent expressed by a legislature are the law of the statute.  But if the legislature is the composer, it can never be the performer.  That role is left to the courts to interpret the law of the statute - much as musical performers interpret the law of the musical composition in their own performances.

Below are several interpretations of the song Half as Much. The song was written by Curley Williams in 1951 and became a huge hit for country star Hank Williams, Sr. in 1952.  That same year it was recorded by Rosemary Clooney with an entirely different interpretation that was a hit with an entirely different audience. When judges consider public policy effects of their interpretations, one could say they are interpreting the law to appeal to different audiences. The versions recorded by Ray Charles and Sharon Redd are more different still. In law, fidelity to precedent is desirable, but strict adherence in all circumstances is not. Roscoe Pound's famously stated principle that the law must be stable but must not stand still is achieved through the talented interpretations of judicial performers.

Other posts incorporating music analogies:  
Judicial Interpretation Illustrated, 
This Land is Your Land: Judicial Interpretation Illustrated #2,
My Favorite Things: Judicial Interpretation Illustrated #3, 
Statutory Interpretation Illustrated,
Over the Rainbow.

Understanding The Misunderstanding

The violence and rhetorical tumult in the Middle East following the posting on YouTube of the video entitled "The Innocence of Muslims" affords a number of teaching opportunities. One that comes quickly to mind is the lack of universality in law and in basic legal philosophy. Teaching rudimentary U.S. constitutional principles to undergraduate students reminds one that even intelligent college students may not easily attain a full grasp on the concepts of free speech.  However, even if just through popular culture and everyday exposure, students do seem to understand that American Free Speech concepts protect expression even when the expression is hurtful to others.  As long as the speech is not certain to incite imminent violence at the time and place where it is made, even disgusting and distasteful speech is protected. 

However, this is not a universal concept. NPR broadcast an interview with Harvard International Law professor Noah Feldman in which he explains that government officials and educated persons, even in countries that embrace Free Speech principles harbor the misconception that the US Government may censor harmful or hateful expression. As a result, when the US took no action to remove or censor the offending video, the implication was that the US government was complicit or in support of the views expressed therein. The audio report is available here and provides an excellent source for assignment or class discussion in a Legal Environment class.  Here are some selected quotes from Professor Feldman:

"I had conversations with highly educated Tunisians — people high in the government — who were genuinely astonished to discover that, under U.S. law, we couldn't ban speech like that precisely because any incitement that might occur is distant in time, distant in place and not at all certain to occur. ...

"And it's actually a problem when people elsewhere actually think, including reasonable people, that the United States government must be complicit in something like the anti-Muslim film because we haven't prohibited it."

"In the U.S., we value the liberty of the speaker much more highly than either the dignity of the person who feels insulted or the state's interest in trying to avoid violent protest. ...

Professor Feldman also notes that American legal communities have discussed, whether the technological advances that have made global reach of communication more easily attainable should affect the American concept of time, space and imminence for incitement purposes.

This interview is a worthwhile resource on a current and complex topic in the law.

Justice Breyer ponders whether the internet changes the size of the "crowded theatre":

"Judicial Activism:" Overreaching Courts or Protection Against Tyranny of the Majority?

The election season has the potential to provide a trove of video clips raising issues about the proper role of courts in America. In the clip below, Republican Presidential hopeful, Rick Santorum criticizes the US Supreme Court decision in Griswold v. Connecticut as inappropriate "judicial activism."  This clip can be a good discussion starter.

After students learn the case, what is their reaction? Is it, "Good grief, where does the Supreme Court get off creating a right of privacy!"  Or is it, "Thank goodness that the Supreme Court recognized that there is a right of privacy!" When the "people" of the great state of Connecticut (in the body of the elected representatives in the state legislature) vote to criminalize the use of contraception, is this an example of the "people" properly establishing the limits of acceptable conduct or is it the government overreaching into the very places where government should never venture? Should the Court have deferred to "the will of the people" of Connecticut or did it properly act to protect the people of Connecticut from the tyranny of its elected officials?

Does the Ninth Amendment's  reservation of rights to the people mean that only legislatures may determine the extent of those rights or is this the inherent function of the courts?

My Favorite Things: Judicial Interpretation Illustrated #3

In an enlightening essay, Professor Desmond Manderson suggests that the process of statutory interpretation by courts may be illustrated by considering the song My Favorite Things as composed by Rodgers and Hammerstein compared to the performance by John Coltrane. I have added some additional examples below.

See also earlier posts: Judicial Interpretation Illustrated, Judicial Interpretation Illustrated #2, and Statutory Interpretation

This land is Your Land: Judicial Interpretation Illustrated #2

In an earlier post, I advanced the position that the process and results of judicial interpretation can be illustrated by making analogy to the process of music interpretation. Popular music can be a particularly effective device to illustrate complex legal principles. Since students already know and understand popular music and how it works, making proper analogy between what is well understood and what needs to be learned promotes understanding.

Below are six videos of the song, This Land is Your Land, beginning with a version by author/composer/performer, Woody Guthrie. If Guthrie's version is "the law," then what happens when the law is interpreted by other judges.  The song maintains certain consistency of melody and lyrics, but problematic verses are removed and tempo, arrangement and overall effect vary significantly.

This progression of videos may also be used to illustrate, more specifically, the topic of statutory interpretation along the lines as described in this earlier post.
.






Click on the image below to view the energetic performance of the Fabulous Echoes:

Statutory Interpretation Illustrated

I frequently use music in class to illustrate a legal principle.  My theory is generally that students understand how music "works." Therefore, music can be used as a scaffold to assist understanding of more complex principles.

I assign the videos below, all of various versions of the song, The First Cut is the Deepest, to illustrate the concept of statutory interpretation. Start with the performance of the composer/lyricist, Cat Stevens (now Yusuf Islam).  He wrote "the law" as expressed in the melody, lyrics, tempo, arrangement and overall feeling of his performance. Next, PP Arnold interprets the law by adding an R&B tempo and arrangement. Linda Ronstadt’s version tracks close to Arnold’s precedent, but adds energy and richness. In the chorus of Ronstadt’s version, there is a slight but noticeable change in the lyrics of the chorus, transferring focus from the “other” in the story to the “self” and, thereby, altering the meaning. Rod Stewart’s performance slows the tempo, stylistically shifting the feel of the song to more of an acoustic rock ballad and makes two notable textual and substantive changes.  In the third line of the first verse Stewart changes the word “got” to “have.” The word change does not affect the meaning of the sentence and is arguably a grammatical improvement.  However, the change destroys the three-line rhyming scheme of the verse as composed and falls more clumsily on the ear of the audience.  Even more notably, Stewart truncates the chorus, bringing it to a close after only two lines of the original three-line rhyming scheme and abandoning the reiteration of the “first cut” reference.  Sheryl Crow’s popular version matches Stewart’s version, embracing and solidifying in audience memory both the clumsiness of the first verse and the truncated, unfinished sounding chorus over the composer’s own aesthetic.  Crow has confirmed in interviews that she did not return to the original text in arranging her version because she knew Stewart’s version as precedent and “heard” the song principally in that way. Ultimately, she recorded the song as it sounded right to her, regardless of the composer’s intent.  Finally, Papa Dee’s version bears the least resemblance to the Cat Steven’s original despite similarity in melody and lyrics.  Each interpretation of the original (the statute) results in different meaning while retaining some measure of fidelity to the original composition. 

A tip of the hat should go to Ken Schneyer from Johnson and Wales who has suggested that a better example may be found by using a song that was composed but never performed by the composer.  (More like a legislature which must leave "performance" of the staute to the courts.)  He has suggested using Over the Rainbow.  I think that is also an excellent example.

Judicial Interpretation Illustrated

I favor using popular music to illustrate legal principles.

Prof. David Skover of Seattle University Law School has been quoted as saying that "all law is interpretation."  I am in complete agreement.  The following exercise illustrates this principle.

Folk music is an apt analogy for Common Law principles. Consider the legal principle such as, "a person who is negligent is liable for the damages that proximately result." Like a folk song, this principle is well known and accepted, but its precise origin may not easily be determined. Also like a folk song, the principle has been repeated and passed down through the oral tradition. And, also like a folk song, each "performance" of the legal principle (judicial decision) is the result of the performer's own particular interpretation of the song. The ultimate performance of a folk song depends on a number of factors including the versions of the song with which the performer is familar, the performer's own talents and abilities, and the effect that the performer wishes to create for the audience.  I would argue that a judicial decision is like a folk song performance. It  is a product of, among other considerations, the judge's understanding of the legal principle, the judge's talents in seeing the implications of the ruling for society, the judge's ideology regarding the proper role of judges and the impact that the judge intends the ruling to have on society (the audience).

Consider the three following performances of the old Irish folksong, Whiskey in the Jar.  They all come from a common melody and common lyrics - constituting "the law" of the song, if you will. But the performances are significantly different in tone, feeling and impact on the audience. So it is also with the law.

When I use these videos in class, I play about a minute of each for comparison purposes.








This one is extra just for fun. Who can resist Ireland's self-professed #1 Elvis impersonator?