Why I Don't Post About Constitutional Law

I don't post much about Con. Law. When I have, it's been in the context of discussions in Criminal Law, Property, or Law and Philosophy. Yet Constitutional Law tends to be the most high-profile law out there. It's the only type of law most people cares about outside the low-level criminal law that you get from crime dramas and lawyer shows. What gives?

What gives is that Constitutional Law, as a subject, is divided into two big topic areas. The one everyone's familiar with, and cares about, is Personal Rights Constitutional Law. This is Free Speech, Free Religion, Due Process, Right to an Attorney, that sort of thing. The other half, which is the half we're deeply engrossed in now, is Federalism and Separation of Powers. This is constitutional law based on how the Constitution structures the government, which branches are allowed to do what, and what the Federal government can and can't do. At its best and most interesting, this is political science.

But 90% of Federalism and Separation of Powers law isn't at its best and most interesting, because it's all something of a sham. There used to be legitimate arguments that the Supreme Court arbitrated over what the proper relationship between the Federal Government and the States was. The Civil War changed that. Since then, the courts have steadily granted more and more powers to the Federal government, and Federalism is now, for the most part, a fig leaf.

A lot of these decisions come down to the following argument: "The Feds can't do Activity Y. But they can do entirely unrelated Activity X. So this law you just passed doing Y is unconstitutional, and very naughty of you. If, however, you wrote a new bill, that gave you the power to do Activity X and Activity Y, provided you explain somewhere in the bill why Activity Y in some vague, tangential way might help you to do Activity X, that would be 100% constitutional." This also leads to arguments that the Constitution prohibits the Federal Government from making some small imposition on state governments, but is okay with doing that same small imposition if it's one aspect of a huge imposition on state governments.

In short, the Supreme Court no longer cares at all about the substantive question of who has what powers. They have given the Federal Government unlimited powers, but require them to meet certain procedures (Dot the Is, cross the Ts, spin around three times and pat their head) in order to show proper respect to the Ghost of Federalism Past.

Further, all of these decisions contain enormous amounts of bloviation about what the Founding Fathers would have wanted. It's important to understand that Alexander Hamilton thought it vital that congress can only ban guns from school zones if the gun at some point travelled between states. This is, of course, nonsense, but that doesn't stop the Justices from fretting for five pages asking What Would James Madison Do, even though they eventually reach a result that is nothing like what he would do, and even though the context of our society and our government is so vastly different that it's impossible to tell what Hypothetical Twenty-First Century James Madison would think.

I was inspired to post this when, while reading Con. Law this morning, I found the platonic ideal summary of a Constitutional Law opinion, in a description of the case of Printz v. US (Deciding whether Congress could require state law enforcement officials to perform background checks on gun owners):

"Justice Souter's separate dissent focused on his interpretation of several passages in The Federalist Papers."

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This page contains a single entry by Zach published on February 7, 2006 12:01 PM.

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