Constitutional Law I August 29, 2006 Jon M. Van Dyke Wm. S. Richardson School of Law University of H

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Constitutional Law IAugust 29, 2006Jon M. Van
DykeWm. S. Richardson School of LawUniversity
of Hawaii at Manoa
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• U.S. Army Museum of Hawai'i --Martial Law in
  Hawaii (1941-44)
• On December 7, 1941, at the urging of the
  Army's commander, Lieutenant General Short, and
  with the concurrence of the President of the
  United States, Hawai'i's Territorial Governor
  Poindexter proclaimed martial law. Military
  officers moved into Iolani Palace and assumed all
  legislative, executive, and judicial powers.
• Martial law suspended constitutional rights,
  turned the civilian courts over to the military,
  imposed blackout and curfew, rationing of food
  and gasoline, censorship of mail and news media,
  temporary prohibition, realigned business hours,
  froze wages and regulated currency.
• All civilians over 6 years of age were required
  to be fingerprinted.  Except for taxes, General
  Orders, issued by the Military governor,
  regulated every facet of civilian life, from
  traffic control to garbage collection. 
• Violations were punished summarily by provost
  courts or military tribunals there was no right
  of appeal. Martial law remained in effect for
  nearly three years, long after the immediate
  danger had passed.

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• Duncan v. Kahanamoku, 327 U.S. 304 (1946)
• Lloyd C. Duncan, a civilian shipfitter working
  at the Navy Yard, was accused of assaulting two
  Marine sentries at the Yard and was sentenced to
  six months in prison.
• Harry E. White, a
• stockbroker, was accused
• of embezzling stock
• belonging to another civilian.
• Both were prosecuted in
• military courts.

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• Duncan v. Kahanamoku, 327 U.S. 304 (1946)
• Martial law had been imposed throughout the
  Territory of Hawaii on December 7, 1941,
  pursuant to Section 67 of the 1900 Organic Act,
  and President Roosevelt approved of this action
  on December 9, 1941. Although gradually relaxed,
  parts of the martial law regime remained in
  effect in 1944.
• Section 67 authorizes the
• imposition of martial law in case
• of rebellion or invasion, or imminent
• danger thereof, when the public
• safety requires it.

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• Duncan v. Kahanamoku, 327 U.S. 304 (1946)
• Organic Act, Section 67 ... the governor ...
  may, in case of rebellion or invasion, or
  imminent danger thereof, when the public safety
  requires it, suspend the privilege of the writ of
  habeas corpus, or place the Territory, or any
  part thereof under martial law until
  communication can be had with the President and
  his decision thereon made known.
• Governor declared martial law on December 7,
  1941 President approved on December 9, 1941. As
  the years went on, civilian courts were used for
  some crimes, but as late as 1944, military courts
  were used for violations of military orders.

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• Duncan v. Kanamoku (1946)
• Martial law had been imposed upon Hawaii from
  1941 to 1944. Battle of Midway in 1942 had
  effectively ended threat of invasion of Hawaii.
• Martial law was maintained to keep wages low
  and allow the (primarily Caucasian) business
  interests to maintain their control of the
  (primarily Asian) labor force.
• Did the Constitution apply
• to the Territory of Hawaii?
• Under what circumstances,
• and by whom, can martial law be
• imposed in the United States?
  Beretania St.

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• Duncan v. Kahanamoku (1946)
• What is the holding of this decision?
• Is the decision
• based on the
• Constitution, or is
• it only a statutory
• interpretation?

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• Duncan v. Kahanamoku (1946)
• Justice Hugo Black Focuses on the language of
  Section 67 of the Organic Act.
• Language does not give a clear answer
• Legislative history Section 5 of the
  Organic Act said that the Constitution applied in
  Hawaii
• Procedural safeguards are indispensable to
  our system of government 122R
• We have always been especially
• concerned about the potential evils of
• summary criminal trials. 122R

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• Duncan v. Kahanamoku (1946)
• Justice Frank Murphy
• Focused on the anti-Japanese perspective
  referring to the governments reference to so
  many inhabitants of doubtful loyalty. 125L
• Racism has no place
• whatever in our civilization.
• 125R

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• Duncan v. Kahanamoku (1946)
• Chief Justice Harlan Fiske Stone
• The exercise of power may not extend beyond
  what is required by the exigency which calls it
  forth. 126L
• But executive action is not proof of its own
  necessity, and the militarys
• judgment here is not conclusive
• that every action taken pursuant
• to the declaration of martial law
• was justified by the exigency.
• 126L

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• Chief
• Justice
• John
• Marshall
• (1801-36)

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Marbury v. Madison (1803) 86

• William Marbury was appointed
• by President John Adams to be a
• Justice of the Peace in the District of
• Columbia, but never received his formal
• commission announcing the appointment.
• He brings a mandamus (we command) action
  against the new Secretary of State, James
  Madison, seeking his appointment certificate.
• He filed his case as an original action in the
  Supreme Court, not in some lower court.
• Is he entitled to his commission?
• Is this procedure the appropriate one to pursue?

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William Marbury v. James Madison
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• President President
• John Adams Thomas Jefferson
• (1797-1801) (1801-09)

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• U.S. Constitution -- Article III
• Section 1. The judicial Power of the United
  States, shall be vested in one supreme Court, and
  in such inferior Courts as the Congress may from
  time to time ordain and establish.  
• Section 2. . In all Cases affecting
  Ambassadors, other public Ministers and Consuls,
  and those in which a State shall be Party, the
  supreme Court shall have original Jurisdiction.
  In all the other Cases before mentioned, the
  supreme Court shall have appellate Jurisdiction,
  both as to Law and Fact, with such Exceptions,
  and under such Regulations as the Congress shall
  make.

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• Judiciary Act of 1789, Section 13 86
• ...The Supreme Court shall also have appellate
  jurisdiction from the circuit courts and courts
  of the several states, in cases herein after
  specially provided for and shall have power to
  issue writs of prohibition to the district courts
  when proceeding as courts in admiralty and
  maritime jurisdiction, and writs of mandamus, in
  cases warranted by the principles and usages of
  law, to any court appointed, or persons holding
  office, under the authority of the United States.

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• Marbury v. Madison (1803) 86
• The Three Questions
• A. Has Congress (in Section 13 of the 1789
  Judiciary Act) vested the Supreme Court with
  original (as opposed to appellate) jurisdiction
  in cases seeking writs of mandamus?
• B. If so, is that grant of jurisdiction
  inconsistent with Article III of the
  Constitution?
• C. If so, what should the Court do?

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• Should Courts Presume that Statutes Are
  Constitutional?
• Should there be special deference to the
  decisions of the First Congress?
• James Madison Speaking to the First Congress
  1789

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• Marbury v. Madison (1803) 86
• What sources does
• Chief Justice Marshall rely
• upon?
• Does he cite any cases?
• Does he refer to The Federalist Papers?
• The text itself ?
• The structure of the government created by the
  text?

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The Federalist Papers

• What are they?
• Are they reliable as
• a source of
• constitutional
• understanding and
• interpretation?
• Or, were they advocacy
• pieces?

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• Judicial Review
• Is it a good thing? Why?
• Nature of a constitution
• A written constitution Does judicial
• review inevitably follow from the existence of a
  written constitution?
• Judges must decide cases, and take an oath of
  office to uphold the Constitution
• Judges are able to give a sober second
  thought to statutes.
• Judges are better able to protect minority
  interests, because they are insulated from
  temporary political winds.

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• Judicial Review
• Is it a good thing? Why?
• Could we have a system whereby the federal
  courts
• review the
• constitutionality of
• state statutes, but not
• of federal statutes?

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Marbury v. Madison (1803) 86

• Should John Marshall have sat as a justice on
  this case, in light of his personal involvement
  in the facts that led up to the controversy?
• Or in light of his obvious
• political perspective on the
• issues presented?
• When should judges
• recuse themselves from cases?

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Central High School, Little Rock, Arkansas,
September 1957
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• Hazel Bryant yelling at Elizabeth Eckford during
  the 1957 desegregation crisis at Central High
  School, Little Rock, Arkansas
• Elizabeth Eckford, center, removes a
  veil from a statue of herself in Little
  Rock, Arkansas, Aug. 31, 2005

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The Little Rock Nine, 1957
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Arkansas Governor Orval Faubus
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• Cooper v. Aaron (1958) 96
• Is the Supreme Court the ultimate interpreter
  of the U.S. Constitution?
• Must its rulings always be followed by the
  President?
• Was it appropriate for
• President Lincoln to reject
• the Dred Scott opinion?
• What if the Court has said that a statute is
  unconstitutional, but the President thinks it is
  constitutional?

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• U.S. Constitution Article VI, Para. 2
• This Constitution, and the Laws of the United
  States which shall be made in Pursuance thereof
  and all Treaties made, or which shall be made,
  under the Authority of the United States, shall
  be the supreme Law of the Land and the Judges in
  every State shall be bound thereby, any Thing in
• the Constitution or Laws of any
• state to the Contrary
• notwithstanding.

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Edwin Meese III

• Edwin
• Meese
• III

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Alabama (Former) Chief Justice Roy Moore
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• Why Should the Constitution Control Us Today?
• None of us ever agreed to it.
• The framers of the Constitution lived in a
  world totally different from ours.
• The framers were white male property-holders,
  and, had we been alive, most of us would have
  been excluded from their deliberations, and from
  the right to vote on ratification.

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Theories of Constitutional Interpretation

• Textualism the text alone? dictionary
  definitions?
• Originalism the original understanding words
  used debates at the Convention and during state
  ratifications public discussion newspaper
  articles
• Purposivism
• The grand vision of the framers of the
  Constitution? Did they have a coherent vision?
• Or our vision today? A vision of individual
  dignity? (Justice Brennan)
• Were the framers delegating decisions to future
  generations?

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• Were vague words (equal protection) chosen
  purposefully to give future generations to
  interpret them according to their own values?
• Can a modern court interpret a constitutional
  text in a manner that is clearly different from
  the way its drafters would have interpreted the
  text?

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• Did the Framers Choose Purposefully Vague
  Language for Some Constitutional Provisions?
• The Two-Clause Theory
• Due Process of Law
• Unreasonable Searches
• and Seizures
• Impartial Jury
• Equal Protection of the Laws
• Privileges and Immunities
• Cruel and Unusual Punishment

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• Should We Try to Interpret the Constitution as
  the Framers Would Have Interpreted It?
• What if the question involves something they
  knew nothing about?
• Wiretapping?
• Regulating television?
• Mandatory public schools?

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• Should We Try to Interpret the Constitution as
  the Framers Would Have Interpreted It?
• Is it possible to determine their original
  intent?
• What sources should we look to?
• Madison's notes on the Constitutional
• Convention?
• The ratification debates in the states?
• The Federalist Papers?
• For the Fourteenth Amendment?
• Debates on the 1866 and 1875 Civil Rights
  Acts?
• Actual practices at the time?
• Segregation in the Senate galleries?
• Segregation in D.C. schools?

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• McCulloch v. Maryland (1819) 123
• Was Congress authorized under Article I,
  Section 8 to create national bank?
• Specific powers exist to
• lay and collect taxes, borrow
• money, and make laws
• necessary and proper to
• carry out these tasks.
• Is a bank necessary
• for these tasks?
• Chief Justice John Marshall

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Textualism

• Do words change meaning?
• Should we search for dictionaries as of 1787 to
  determine the meaning of words, and must we stick
  with those meanings?
• If juries were historically
• always bodies of 12
• requiring unanimous
• verdicts, can the
• Constitution be interpreted
• to allow for nonunanimous
• juries or juries of six?

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Article II, Section 1, Para. 4

• No Person except a natural born Citizen, or a
  Citizen of the United States, at the time of the
  Adoption of this Constitution, shall be eligible
  to the Office of President neither shall any
  person be eligible to that Office who shall not
  have attained to the Age of thirty five Years,
  and been fourteen Years a Resident within the
  United States.

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• What Is a Natural Born Citizen?
• Can a person who was born through a Caesarian
  section become the President?
• What about a person born outside the country
  of U.S. parents?

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Kathy Hoshijo

• Kathy
• Hoshijo

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• Hawaii Constitution
• Article V, Section 1 .... No person shall be
  eligible for the office of governor unless the
  person shall be a qualified voter, have attained
  the age of thirty years and have been a resident
  of this State for five years immediately
  preceding the persons election. ....
• Article V, Section 2 There shall be a
  lieutenant governor who shall have the same
  qualifications as the governor.

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RepresentativeTulsi Gabbard Tamayo
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• Hawaii Constitution
• Article III, Section 13. A majority of the
  number of members to which each house is entitled
  shall constitute a quorum of such house for the
  conduct of ordinary business, of which quorum a
  majority vote shall suffice but the final
  passage of a bill in each house shall require the
  vote of a majority of all the members to which
  such house is entitled, taken by eyes and noes
  and entered upon its journal.....
• Can votes be cast by email from Iraq?

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• U.S. Constitution
• Article I, Section 8, Clause 3
• The Congress shall have Power...
• To regulate Commerce with foreign Nations and
  among the several States, and with the Indian
  Tribes....

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Commerce

• Should we define this word as it was defined in
  1787 trade or barter or can we define it
  include manufacturing
• and agricultural
• production?

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unreasonable search

• Does the Fourth Amendment prohibition on
  unreasonable searches prevent the
• government from
• wiretapping
• without a warrant?

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nor shall any State deprive any person of life,
liberty, or property, without due process of law

• Does this language in the Fourteenth Amendment
  mean that states can deprive persons of life with
  due process, and thus it is inappropriate to
• interpret the prohibition
• on cruel and unusual
• punishment in the Eighth
• Amendment as prohibiting
• capital punishment? 124

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• Martin
• Luther
• King, Jr.,
• August
• 28, 1963,
• Washington
• D.C.

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• Brown v. Bd of Education (1954)78
• Were the facilities in the Topeka, Kansas
  schools equal?
• If so, could these separate-but-equal schools
  still violate the Equal Protection Clause?
• Does the text of the Fourteenth Amendment
  provide the answer?
• Does the history
• of the Fourteenth
• Amendment help?

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• Fourteenth Amendment Section. 1. All persons
  born or naturalized in the United States and
  subject to the jurisdiction thereof, are citizens
  of the United States and of the State wherein
  they reside. 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 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.

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• What Is the Holding of Brown v. Board of
  Education (1954) 78? Are separate but equal
  governmental programs always unconstitutional?
  Or are they particularly unconstitutional in
  the
• context of public education? What standard
  must the
• government meet if it wants
• to categorize people by race?

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• Brown v. Bd of Education (1954) 78
• Do separate-but-equal schools instill a
  feeling of inferiority?
• How would one establish this proposition?
• Were the doll tests of Kenneth and Mamie
• Clark persuasive?
• Suppose, after Brown, a local school board
  wanted to present evidence to a federal district
  judge that school segregation did not instill a
  feeling of inferiority among the African-
  American children in its area.
• Should the judge hold an evidentiary
• hearing to receive this evidence? Is there a
  more persuasive opinion that
• could be written to support the Brown result?

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• Are We Certain that Race-Segregated Schools
  Promote a Stigma of Inferiority?
• What if the members of a disadvantaged race
  prefer a school limited to members of their own
  race?
• Do sex-segregated schools promote a stigma of
  inferiority?
• Is the answer the same
• for an all-female school as
• it would be for an all-male
• school?

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Brown v. Bd. of Education (1954) 78

• What was the original understanding of the
  framers of the Fourteenth Amendment about whether
  equal protection prohibited segregated schools?
• Drafting history
• debates
• Subsequent practice
• What if they did not think
• or or discuss this issue?
• Because education did not
• play the same role then as it plays now?

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• What Does Equality Mean?
• If you can take a ride on the train and get to
  your destination, have you been treated equally?
• Or does equal treatment require that you be
• entitled to
• ride in the
• same train
• car with
• everyone
• else?

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• What Is Equality? Is it sufficient for the
  law to be color blind? Formal equality
• Or must the law ensure that people actually
  wind up with an equal status? Functional
  equality

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• Should Statutes and Governmental Programs that
  Categorize People on the Basis of Their Race Be
  Viewed Suspiciously by the Courts? Why? In What
  Ways Is a Racial Category Different from Other
  Categories?

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• Racial Discrimination If the government
  utilizes race as a category, then courts imposes
  the strict scrutiny test, and requires the
  government to demonstrate a compelling interest,
  and that it has used the least drastic
  alternative to achieve its goal.

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• Strict Scrutiny Judicial Review
• The government has the burden of establishing
  that it has a compelling interest, and that it
  has chosen the least drastic alternative to
  accomplish its goal.
• The means chosen must therefore be necessary to
  accomplish the goal.
• And the government must be consistent in its
  actions.
• Cannot put Japanese-Americans in camps and
  leave German-Americans at large.
• Cannot prohibit blacks and whites from
  marrying while allowing blacks and Orientals to
  marry.

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• Liberty
• Physical liberty - freedom from bodily
  constraints (imprisonment)
• Civil and political liberty - freedom to
  participate in political decisionmaking (vote,
  run for office, speak freely, associate) have
  access to governmental services without
  discrimination (file lawsuits, use judicial
  procedures, enforce contracts)
• Personal-autonomy liberty - freedom of
  religion, right to privacy, right to personal
• autonomy
• Economic liberty - freedom to engage in
  entrepreneurial activities, freedom to enter into
  contracts with others, etc.

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Robert H. Bork

• Robert
• H.
• Bork

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Robert H. Bork

• Professor at Yale Law School, 1962-81, Antitrust
  Law
• Solicitor General under Presidents Nixon Ford,
  1972-77
• Fired Special Prosecutor Archibald Cox
• Served on U.S. Court of Appeals for the District
  of Columbia, 1982-88
• Nominated to the Supreme Court by
• President Reagan, 1987
• Senate refused to confirm the nomination

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Should Judges Be Neutral When Interpreting the
Constitution?

• Is it inevitable that judges will make policy
  when deciding cases?

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• To What Extent Should Judicial Decisions Be
  Determined By Concepts of Morality?
• Was Brown v. Board of Education ultimately
  based on the Courts view of what was the morally
  correct outcome?
• Our Casebook Editors say p.39 that Brown
  embodies the virtues Chief Justice Warren wanted
  judicial review to foster equality of
  opportunity as the goal, fairness as the
  guidepost, and
• public morality as the basis for evaluation.
• But they also ask In a representative
  democracy, what gives the unelected Court the
  authority to overturn popular desires? How is
  Brown any more legitimate than Dred Scott? Or
  Lochner?

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• Stare Decisis
• Should courts follow earlier precedents?
• Sometimes?
• Always?
• Statutory interpretations?
• Constitutional interpretations?
• Why?
• Was it appropriate to overrule Plessy v.
  Ferguson (1896) 63?

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Compensation for Descendants of Slaves?

• A Class of persons descended from slaves have
  filed a civil action against about 20 companies
  and banks that profited from slavery for unjust
  enrichment.
• Should their claim prevail?
• Even though slavery was legal at the time?

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Compensation for Victims of Jim Crow Laws?

• Should the descendants of slaves be able to
  collect for the discrimination they suffered
  during the 100 years of Jim Crow laws?
• Inability to obtain financing, mortgages,
  housing in good neighborhoods, business loans,
  etc.
• Banks did not lend money to black-owned
  businesses, and white-owned businesses hired
  blacks for predominantly menial jobs. 59

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