Essay Concerning US Constitutional Law

[Ian Plätschisch]

Whenever I write something scholarly, I try to remember to post it here. Here is my term paper for a class on Constitutional Law I took last fall.

Attachments:

Abuse of Judicial Review by the Supreme Co....docx (24.56 KB)

[Viteu Marcianüs]

So you would have us return to the Lochner era, when a State could not even pass a minimum wage for child labor (because that is what the those cases you cited stood for ending)? And this isn't appeal to emotion, the prior Court cases focuses primarily on the contract clause. The Court, circa 1938, shifted to focusing on the commerce clause. All of those cases have a constitutional basis.

[Viteu Marcianüs]

A better example of abusive judicial activism would be DC v Heller, where Scalia decided to, without any historical basis, to declare an entire clause of the second amendment prefatory... some 200+ years after it was adopted. 

[Ian Plätschisch]

Apr 25, 2018 4:44:08 GMT -6 Viteu Marcianüs said:

So you would have us return to the Lochner era, when a State could not even pass a minimum wage for child labor (because that is what the those cases you cited stood for ending)? And this isn't appeal to emotion, the prior Court cases focuses primarily on the contract clause. The Court, circa 1938, shifted to focusing on the commerce clause. All of those cases have a constitutional basis.

I'm afraid you must have misinterpreted my entire argument. I would not have us return to the Lochner Era; in fact, in the paper, I state my disagreement with almost every Lochner Era case that I bring up. It is interesting that you say I think the Court should strike down minimum wage laws for child laborers, given that I bring up Hammer v. Dagenhart for the purpose of refuting the majority decision.

The main point of the paper was to show that Lochner Era cases were ripe with abuse of judicial review. How you came to the exact opposite conclusion is beyond me.

[Viteu Marcianüs]

"In both this case and Lopez, the Supreme imposed its own judgment on Congress in a manner feared by the Framers.
Conclusion
Justices should not simply approve every act of Congress regardless of its content. The Supreme Court ruled correctly in Coyle v. Oklahoma, as Congress had clearly infringed upon the rightful power of a state under the guise of the Commerce Clause. However, out of all of the post-Marshall Court cases here mentioned, in only one did the Court make the correct decision by striking down a law. In all of the other cases, the Supreme Court overturned laws without unambiguous evidence they were unconstitutional; disregarding both the limits on the judiciary set by the Framers and the broad powers of Congress explained by Marshall. The Court must begin exercising judicial review much less frequently, and before a citizen supports a decision that overturns a law they dislike or opposes a decision that upholds a law they dislike, they should consider its implications with regard to founding philosophy and separation of powers."

While you are correct that you take issue with Lochner era cases, you also argue against using the commerce clause in other instances. Your analysis seemingly ignores preemption and the dormant commerce clause, and seeks to represent the founding fathers intent, absent such works as Federalist 78 and Federalisr 84. The founder who feared the Court was Jefferson, but Hamilton clearly supported the judiciary as understood and inherited from the English judiciary. I dont see how you can apply a quasi-originalist intent when the history of the judiciary demands a determination to the contrary. Rather, as explained in Fed 84, the fear was not abuse of the commerce clause, but that enumerating certain rights would bind the hands of the court to be the mechanism of redress when the State infringes on the rights of the people (much to the nonsense put forth by Gorsich). To put another way, you cant conclusively argue that judicial review was not contemplated by the drafters or that restricting states from enacting laws that impact interstate commerce in the aggregate, or acknowledging the breadth of the commerce clause that empowers Congress to act, is judicial overreach. Your analysis is, for the most part, jeffersonian and conclusory in that it doesn't actually consider how the founding fathers debated the role of the judiciary or how they understood its role at the time the were alive. The clear intent, with some objections (e.g. Jefferson) was for the Court to protect the law and interpret the Constitution. That necessarily includes ensuring that government actors play by the rules. Take issue with what you think is judicial impropriety, but dont try to make a false appeal to authority by selectively endorsing only a few founding fathers.

[Ian Plätschisch]

I appreciate and welcome your comments and criticisms, and I am happy to see that I managed to create a spark of activity in the otherwise dormant Royal Society.

That said, I cannot pretend to match your legal knowledge, given that you hold a JD and currently work at a law firm, and given that I am a college freshman who once took a one credit-hour seminar on Constitutional Law and is otherwise not intending to go to law school. Again, I am not saying that you are unfairly attacking me (I was the one who posted the paper and invited comment), but I hope you understand that I cannot respond to you in a satisfactory manner.

Finally, I promise that any omissions that may have resulted in misleading arguments or a false appeal to authority are not intentional, but rather the consequence of limited outside research (since the paper was simply for a freshman seminar), and due to the fact that I based my paper on the cases covered during the seminar.

[Viteu Marcianüs]

My tone was unintentionally harsh, please accept my apologies.

Further, my JD does not inherently make me right. Although I disagree with your analysis, my primary point of contention with anyone, regardless of position, is broad assertions as to drafters* intent. They were not some monolithic group and you can see how nasty they could get from their writings (see e.g. Jefferson's commentary on Marbury v Madison). Had you argued the Hamiltonian position, while I may fundamentally agree insofar as it related to judicial review, I would have asked you to reconcile a broad intent claim with Jefferson.

In context, your essay is fantastic when viewed as you framed it in your last post. I would encourage you to read the federalist and anti-federalist papers, and, if you're interested, a law review article I have (i can send it) that makes the originalist argument for substantive due process (which this discussion is touching upon). Also, check out the Opening Arguments podcast.

[Ian Plätschisch]

Reading back over the paper, I can now definitely see that I made a lot more sweeping statements about the views of the framers that I thought I did, and definitely more than I should have. I suppose the purpose of the first section of the paper was to lay out my own view of how the Judiciary should rule, and then back that up with writings from the framers who I agree with (or at least, those who I currently agree with given the level of research and thought I have put into my position. My positions concerning the judiciary tend to change frequently). I then apparently tricked myself into believing that the framers I picked to write about represented them all. I will be sure to keep this in mind the next time I write a legal analysis (which will probably be never, but thanks anyway).

I also was not trying to suggest you are automatically right because you went to law school. I was just saying it would be hard for me to have a real debate with you; for example, I cannot defend against your charge that my analysis neglects preemption and the dormant commerce clause, because I have only a limited understanding of the former and I have never heard of the latter.

Thank you for the recommendations. Unfortunately, my reading list is about two dozen books long, and I have trouble keeping up with the podcasts I already listen to. I will keep them in mind, though.

[Viteu Marcianüs]

I've been struggling to finish editing an article I wrote that talks a lot about judicial review before I submit it for publication (hence why I have these sources so fresh in my mind; dont ask me about sources from my first published article that had nothing to do with this). In any event, a reading of the federalist and anti-federalist papers is necessary to get an understanding of the issues the drafters considered. I read them initially in a political theory class I took in undergrad. I've reread them as needed. They are particularly helpful to reference when discussing the drafters intent. There is, I think, a strong argument that so-called contemporary federalist are closer to anti-federalist (compare Jefferson re: judicial review and the Bill of rights, with Hamilton feds. 78 & 84 as an argument for judicial review as a reason against the Bill of Rights). Like everything else, people often cherry pick, which is a reason (setting aside substance reasons) why I'm decidedly neither, preferring the pragmatic middle between the two camps. That said, for a succinct history that does argue a pragmatic viewpoint, check out Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 EMORY L. J. 585 (2009).

(Not to be patronizing but substantive due process is what stems from the "liberty" part of "life, liberty, or property.")