Posts categorized as "The Constitution"

Federalism video updated



I updated my YouTube video on federalism a bit.  That video (and others) had some technical issues especially with sound and I hope this version is more pleasant to watch.



What do courts mean by ripeness and mootness?

When courts talk about ripeness and mootness they are referring to whether it is too early (the case is not yet ripe) or too late (the case is moot) for courts to decide the case.  If a case is ripe the court is saying it is the right time to decide the case.  If you look at the U.S. Constitution you will see that federal courts can only decide actual "cases and controversies" - - when a case is ripe and we have the right parties then the case is an actual case or controversy.  The basic principle is that courts should issue decisions that will affect the parties.  

Courts should not issue hypothetical decisions as to what should happen if certain events were to occur in the future or hypothetical decisions as to what should have happened in the past.

Here is an example of where a case is not yet ripe.  Let's say a plaintiff wants to build a store on a certain piece of property.  But the city in which the plaintiff wants to build the store must first decide whether to allow the plaintiff to build the store or not.  In October the plaintiff learns that the city will probably reject his application.  The city will issue its final decision in November.  Can the plaintiff sue the city in October?  Probably not.  The case is not ripe because the city has not issued its final decision.  The plaintiff did not suffer any harm yet and is only predicting that he will suffer some harm in the future.

Mootness is where the court is not in a position to provide any relief - - it's too late.  This can happen if a law changes or if there is a change in the parties' status.  A famous example of a case that the Supreme Court declared moot was where a plaintiff sued after he was denied admission to a law school.  Later he was admitted to the law school.  When the case came to the Supreme Court the plaintiff was already finishing his final year of law school.  The Supreme Court said it could not decide the case because the case was moot.  The plaintiff would never apply to the law school again -  - the plaintiff no longer had a personal interest in the outcome of the case.

If you are trying to decide whether a case is moot or not, ask yourself, "Is the plaintiff still injured?  Is it possible that the plaintiff could be harmed by the defendant in the same way again?"  If the answer to both questions is "No" then the case is probably moot.  



What is exclusive federal subject matter jurisdiction?

When we say subject matter jurisdiction we mean the power of a court to decide a certain type of case.  Federal courts in the United States have the power to decide some types of cases but they do not have subject matter jurisdiction over every type of case in the United States.

U.S. federal courts' subject matter jurisdiction comes from the Constitution and the Congress of the United States.  If you look at Article III of the U.S. Constitution you will see a list of cases in which the federal courts have subject matter jurisdiction.  These cases include, among other things, admiralty cases, patent cases, and cases between two different states (e.g., New York sues New Jersey).  

Some cases can be heard in both state and federal courts.  We can say that the federal and state courts have concurrent jurisdiction over those types of cases.

For some types of cases federal courts have exclusive federal subject matter jurisdiction - - only federal courts can decide these types of cases.  In other words, the cases cannot be heard in state court.   Some examples where federal courts have exclusive subject matter jurisdiction include the types of cases I listed above as well as bankruptcy cases and federal antitrust cases.

 When passing a law, sometimes Congress will specify that federal courts have exclusive subject matter jurisdiction.   For example, if you look at 18 USC 2338 and subsequent sections you will see that Congress established certain laws addressing terrorism and that these cases can only be heard in federal courts.



What is the Compact Clause?

The Compact Clause is one of the clauses in the United States Constitution.  According to the Compact Clause no state can enter into “any Agreement or Compact with another State, or with a foreign Power” without approval from Congress.

Courts and the US government do not treat the Compact Clause literally.  States can enter into agreements with each other without Congress's approval, provided the agreement does not interfere with the federal government's ability to perform its job.  For example, let's say State A and State B decide to work together to fight fires that can threaten both states.  Congress does not have to approve the agreement.  Even agreements with other countries often do not get attention from the federal government unless they interfere with the US government's ability to conduct foreign policy.  

On a side note the Compact Clause, as I recall, tends to get little attention in law school and on bar exams.  If anyone has a different experience, let me know.

Riley v. California: Why the police need a warrant to search the cellular phone of a person under arrest

Last month, in Riley v. California, the Supreme Court decided that the police, absent exceptional circumstances, cannot constitutionally search an arrested person's cellular phone.  If you are studying US law this is a very useful decision to see how courts split on tricky issues.   The case is also helpful to understanding how courts apply precedent and create new precedent.  

The background to the case is that the police are generally allowed to conduct a warrantless search of a person who is arrested.  This is often called a "search incident to an arrest."  That is, the police can search the arrested person's pockets, things the arrested person is carrying, and immediate surroundings.  Courts agree that the police need to conduct these types of  searches to ensure their safety (an arrested person might have a concealed weapon) and to keep arrested persons from destroying evidence.  For example, in one important case, a police search of an arrested person's cigarette pack was held constitutional.

The Supreme Court explained that a warrantless search of a cellular phone is different.  First, cellular phones usually are not dangerous (unless perhaps the arrested person used the phone to contact accomplices who might want to attack the police). Second, although data on a cellular phone can be remotely destroyed, the Supreme Court believed that measures could be taken to secure the data without searching the phone.  Finally, the Supreme Court explained that cellular phones often contain large amounts of personal data, some of it dating years back.  Searching a cellular phones pictures, emails, etc. is too far reaching.  

 Below is a short video discussing the case:


What does it mean if a plaintiff has "standing" or "lacks standing" to challenge a law's Constitutionality?

Standing means that a person has a legal capacity to sue.  

Before a person can sue to challenge a law as unconstitutional that person must meet certain requirements.  He must have suffered an injury, or be in danger of suffering an injury as a result of the law.  Also, the Court must be able to provide some sort of remedy or help for the plaintiff if the Court finds in favor of the plaintiff.

As a practical matter this generally means that a person cannot claim that a law is unconstitutional on behalf of another person.  Only a person who has actually been injured as a result of the allegedly unconstitutional law or government action has the right to sue.  There are some exceptions to this rule which I'll discuss in a future post.  If you take a US bar examination you might find that at least one of the questions on Constitutional law will focus on standing.  

For now, here is a short video:  





What is double jeopardy?

Double jeopardy is the principle that a defendant should not be tried twice for the same crime once he is either acquitted or convicted (or pleads guilty).  

The principle applies slightly differently in the United States because of the principle of dual sovereignty.  Each state and the federal  government is a separate sovereign, therefore, it does not violate double jeopardy for different states  to try someone twice for the same underlying crime.   Similarly, a state and the federal government may put someone on trial for the same crime.  But the same state cannot try a person twice for the same crime and the federal government cannot try someone twice for the same crime after a conviction or acquittal.  

Below is a short video on how double jeopardy applies in the United States.




What types of laws can Congress pass? What are the limits to Congress's power to pass laws?

A few students asked some creative questions about Congress's power to pass laws.  The short answer is that the Constitution grants Congress the power to pass certain types of laws.  If the Constitution does not grant Congress the power to pass a law, then Congress can't pass it.  The federal courts - - and ultimately the Supreme Court - -determines whether the Constitution grants Congress the power.

Students quickly understand that Congress cannot pass a law that violates a Constitutional right.  For example, Congress cannot pass a law demanding that people accept a religious belief because the First Amendment prohibits Congress from making any law regarding the establishment of a religion.

But obviously Congress has broad powers to enact laws given the number of federal laws that exist today.  Since the Great Depression, the Supreme Court has held that most laws passed by Congress were Constitutional under the Commerce Clause.

 To understand Congress's power to pass laws you should start with the Commerce Clause of the Constitution which empowers Congress to pass laws regulating commerce with "foreign nations" and "among the several States."  Over time, the Supreme Court has interpreted the Commerce Clause to enable Congress to pass a wide range of laws.  

Here is a general guide to Congress's power pursuant to the Commerce Clause (let's not worry too much about foreign commerce for now):

1. Congress can pass laws that concern the "instruments" and "channels" of interstate commerce and people that travel from one state to another state. For example, think about the mail, telephone, and highways. All of these can be used to conduct interstate activity.  

A person who uses a phone or the mail to commit a crime may be subject to federal law.  

Congress can pass laws regarding highway safety.  A person who travels across state lines and commits a crime may be subject to federal law.

Congress can even pass laws that may affect whether people will choose to travel from one state to another.  In one important case the Supreme Court held that anti-discrimination laws were Constitutional as applied to a private restaurant because the restaurant generated substantial business from out-of-state customers.

2. Activity within a state that may substantially affect interstate commerce can be subject to federal laws.  For example, even if a business conducts activity entirely within a state or a person conducts illegal activity entirely within a state, but Congress concludes that this conduct can substantially affect interstate commerce, then Congress can regulate the activity. 

 Below is a short video introducing the Commerce Clause.  


Wolf v. Walker: Due Process, Equal Protection, and Federalism

A month or so ago someone asked me about gay marriage and the US Constitution.  Following up on this issue, I suggest reading a recent case, Wolf v. Walker  in which a Wisconsin federal court held that a ban on same-sex marriage was unconstitutional.  Below is a video I have on YouTube discussing some issues in the case.

If you are studying US law you will find the case interesting for a number of reasons.  First, the court decided to apply the intermediate scrutiny test to the Wisconsin law and state constitutional amendment which forbade marriage between anyone other than a man and a woman.  The Court scrutinized the ban under both the Due Process and the Equal Protection Clauses.  

The bulk of the court's analysis was as to whether banning same-sex marriage was so necessary to achieving an important government purpose that a person's fundamental right to marriage should be denied.  The Court held that defendants failed to meet their burden.

For non-US students I think you may find interesting the Court's rejection of Wisconsin's arguments based on federalism and democracy. Among other things, defendants argued that if the people of Wisconsin supported a ban on gay marriage then a court should not interfere.  The Court explained that principles of democracy or federalism do not trump the United States Constitution.  Just as the people of a state may not constitutionally ban interracial marriage, banning same-sex marriage violates the US Constitution.  

This was a district court decision and any appeal will go to the Seventh Circuit Court of Appeals.



The Right to an Attorney in Civil Cases

Thanks to J for asking, "What if a defendant in a civil case cannot afford a lawyer?"  In most cases, the answer is he will not have an attorney unless he can find a volunteer attorney willing to assist him.

This is an important question in the United States.  You might hear the issue referred to as "Civil Gideon".  The United States Supreme Court in Gideon v. Wainwright, 372 US 355 (1963) held that poor defendants in criminal cases who face the possibility of prison have a right to counsel.  But there is no constitutional right to counsel in a civil case.

Most states (maybe all?  I'm not sure) provide a right to counsel at least in some types of civil cases, such as child custody cases, where elderly persons face eviction, but the types of cases vary from state to state.  

If the state will not appoint an attorney, a defendant will have to look for a charitable organization or an attorney willing to volunteer.

Plaintiffs in a civil case who cannot afford an attorney might be able to find an attorney willing to work on a contingency fee.  See below or here for a short video on contingency fees.