Barely Legally

Confessions of a Moot Court Bailiff

The Constitution

At my school, Constitutional Law is split into two three-credit classes. I’m taking the first one now, and the second one in the spring. I was terribly excited about the idea of getting to take Constitutional Law, because I’m kind of a big fan of the Constitution. I even read the Federalist Papers over my summer vacation in preparation for this class.

I mean, come on: it’s the United States Constitution! Forged in the blood of American patriots, tempered by a Civil War (sorry guys, but you started it), and majestically stuffed down the Soviets’ throats until they choked on it and stopped building nuclear missiles! This class is going to teach me how to recognize and fight (for the low low price of $300 per hour) oppression and disenfranchisement like Don Quixote, Esq., right?

Well, not yet.

As it turns out, in addition to the super romantic parts of the United States Constitution, there are some really really boring parts. For instance, you have to learn if Supreme Court even has the power to review the Constitutionality of laws. (Spoiler alert: yes, they do!)

Also on the syllabus are judicial concepts like standing (you can’t sue unless you’re the one who has been wronged), ripeness (you might be wronged, but there’s been no damage quite yet), mootness (you were wronged, but at this point, there’s nothing the Court can do to help), justiciability (something might need fixing, but a court is not the place to get it fixed), and so on and so forth.

Then we branched off into topics like the structure of the government: this whole state government / federal government dualism really never sunk in until this semester.

For instance, the federal government isn’t really all powerful. I had assumed that any time the federal government made a law, the State laws were overridden. Similarly, I thought that the federal government could pass any law it wanted to on any topic it wanted to, and it would automatically pre-empt all the laws of all the states.

(The folks who have taken Constitutional Law before are laughing about my fantasy version of America, where unicorns doubtlessly serve in the Senate, and pixies occupy key bureaucratic positions.)

Based on how we’ve read the Constitution over the last two hundred years, it isn’t so. You’ve got certain phrases buried in certain parts of the Constitution that have been interpreted to grant certain powers to the government. For instance, there’s the Commerce Clause, the Necessary and Proper Clause, the Taxing and Spending Clause, and a whole bunch of others.

So the interplay between the state laws and the federal laws is a lot more complicated than I ever knew. (Seriously, I don’t mind admitting my former ignorance, in part because I sincerely think it’s shared by most citizens.) When Congress wants to do something, it has to stem from one of those powers.

To take an example, the Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states.” So Congress can theoretically take any action it likes if it does it as an exercise of its power to regulate interstate commerce. For instance, the Violence Against Women Act made it a federal crime to assault a woman, and Congress had to justify why they would make a federal law regulating (read: punishing) assaults on women.

The reason Congress came up with (which did not convince the Supreme Court, who held a significant part of the law unconstitutional) was that violence against women negatively impacts interstate commerce, because women who are the victims of violence are absent from work, and in a national economy, that means that interstate commerce will be affected.

In addition to the limits placed on federal power, there are grants of state power that actually preempt the federal government from regulating the states, even if the federal government has a good excuse.

Constitutional Law isn’t quite what I expected thus far. I had expected to learn a lot more about individual civil rights, but that’s kind of like saying that you expected to scramble the eggs before you cracked the shells.

It’s not as dramatic, but I have to say, it’s interesting to see how inordinately complicated the state/federal interaction is.