Why Johnny Can't Fight

Here is a hypo that involves a young man who has applied to Nebraska Military College ("NMC"), a state college that specializes in military training and limits admission to males only.

Suppose John Damon, a young man who has a particular interest in the type of curriculum offered at NMC, applies to the school but is denied admission. He wishes to sue the school and its admissions policy in federal court. He would like to bring two constitutional claims against the school:

(1) a claim that the school’s admissions policy violates the Due Process Clause of the 14th Amendment, because it’s emphasis on personal recommendations from alumni of NMC renders the admissions policy arbitrary and capricious and thus violates due process; and

(2) a claim under the Equal Protection Clause of the 14th Amendment challenging the constitutionality of the policy because it’s total exclusion of female applicants constitutes unlawful gender discrimination.

Assume that, on the merits, the first claim is weak and the second claim is strong. Does Johnny Damon have standing to assert these claims in federal court?

Article III's Constitutional Minimum for Standing

Standing requirements answer the question who may litigate a constitutional question--who is able to show a case or controversy under Article III. In other words, federal judicial review is limited to "deciding ordinary litigation between adverse parties." Casebook p. 63.

Federal courts do not have the power to decide issues, or questions of federal law, or to issue advisory opinions concerning federal law. Their jurisdiction is limited to actual cases or controversies. If there is no case or controversy, federal courts are without jurisdiction and will dismiss the case.

One commentator nicely summarizes the case or controversy requirement:

"In order to establish standing, a plaintiff must show three things:

* injury in fact
* causation; and,
* redressability.

With respect to each of these elements, the plaintiff bears the burden of pleading and proof. It is also important to note that where a plaintiff"s complaint seeks several different forms of relief, plaintiff must separately establish standing as to each of these claims. This may mean, for example, that while a plaintiff has suffered a sufficient past injury to give her standing on a claim for damages, any threatened future injury may be too speculative or remote to give plaintiff standing to seek prospective injunctive relief."

Justiciability

We are about to spend a few days exploring the concept of justiciability, i.e. a collection of doctrines that seek to determine the scope of the judicial power of the federal courts under the Constitution. "Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action." (Casebook p. 66).

We will be spending a lot of energy discussing various aspects of each of the boldfaced terms concerning justiciability.

Here is how Erwin Chemerinsky defines the concept of "justiciability:"

Perhaps the most important limit on the federal judicial power is imposed by a series of principles termed "justiciability" doctrines. The justiciability doctrines determine which matters federal courts can hear and decide and which must be dismissed. Specifically, justiciability included the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine.

Standing Hypo--Duncan vs Lincoln Police Department

 Let’s try to get a feel for standing.

Suppose I read in the newspaper that the Lincoln police department has an affirmative action plan which provides different passing scores on the sergeant’s exam for whites and blacks.  The passing score for whites is 70 and for blacks 65.  The purpose of the plan is to promote people from under-represented groups.  I sue the Lincoln police department claiming that this classification scheme violates the equal protection clause by discriminating on the basis of race.  What result?

    Why don’t I have standing?  Could I make any arguments that I should be allowed to litigate this case?

 

Now consider these facts from a recent case from the 11th Circuit:

A federal law prohibiting unfair and misleading debt collection practices provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

The case involved two men who had been delinquent on debt for many years. A debt collector sent letters to the men, seeking to collect on the debt, and the men sued by alleging that the letters were misleading. The only problem? The men were not actually misled. They had merely received the letters but were not otherwise harmed.

So, what do you think? Do the plaintiffs have standing or no? What are the arguments that they do? That they do not? 

Now consider what the court said (some language from news report of case):

Trichell v. Midland Credit (11^th Cir. 2020)

Judge Katsas, writing for a 2–1 panel of judges, looked to the history of Article III of the Constitution, which governs the judicial branch. Hearkening back to the words of James Madison in 1787, Judge Katsas explained the Founders’ conception of the judiciary’s limited power. And rather than a dispute in which a plaintiff was complaining of some actual harm, the plaintiffs in this case were unharmed individuals “tak[ing] offense that a private party has violated” federal law — “an injury that is . . . abstract as opposed to concrete,” in Judge Katsas’s words.

In the end, Judge Katsas determined that the plaintiffs did not have standing to bring the case in federal court, meaning that the Constitution does not authorize federal courts to hear such disputes:

 “The plaintiffs seek to recover for representations that they contend were misleading or unfair, but without proving even that they relied on the representations, much less that the reliance caused them any damages. By jettisoning the bedrock elements of reliance and damages, the plaintiffs assert claims with no relationship to harms traditionally remediable in American or English courts. This cuts against Article III standing, for the purpose of that doctrine is to confine courts to their ‘traditional role.’”

 The dissenting judge in the case argued that at least one of the plaintiffs had standing because he testified that although he was not actually misled into making a payment, the letter “enticed him to make a payment” due to its misleading statements. So he was enticed to rely, but did not actually rely.

Should that be enough?

Cases Or Controversies

Article III

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Slavery and the original (unamended) Constitution of 1787

 Paulsen rightly criticizes the original Constitution as a "pro-slavery" and "deeply flawed" constitution. (p. 73). It is difficult to disagree with that assessment. There is so much good written into that document, but it is certainly tainted by its "collusion" with slavery.

Paulsen recognizes that the Constitution contains "several compromises that affirmatively reached out to recognize, protect, and even promote the institution of slavery." (p. 740). 

If the Northern states had stood strong against these compromises with the Southern states, what would have happened at the Constitutional convention? Would we have achieved a United States of America under a Constitution that could be amended from time to time to form a more perfect union?

Consider Article VII of the Constitution:

Article VII

"The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same."

 What if the Southern states had refused to ratify the Constitution without the compromises Paulsen refers to? 

Notice that 9 out of 13 states were required to ratify the Constitution in order for the Constitution to take effect. Moreover, even if at least 9 states ratified the Constitution, it would only bind "the states so ratifying the same." So holdout states would not part of the "United States" nor bound by the Constitution.

What would have happened if we had ended up with the Northern United States and the Southern United States as two separate countries? I suppose someone could write a novel about this alternative universe, but it is difficult to speculate on how this would have impacted the history of the United States and of the World.

Are there any other Constitutional doctrines that involve a constitutional "collusion with evil?"  Which doctrines?

 

Assignments for Week Two (August 28-30)

 Monday August 28:

 Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strauss article (link); Sollum Article (link) I will ask many of you to share your views about the great debate and which approach to applying the constitution you prefer (and why you believe it is preferable). My views are shared on the video. I would like many of you to share.

Video: 

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

Tuesday August 29:

Slavery Under the Constitution of 1787: Paulsen Book chapter 4 (p. 73-89) 

Casebook p.51-62;

Video: 

https://unl.yuja.com/V/Video?v=6828021&node=29033421&a=99464595&autoplay=1

 

 Wednesday August 30:

Casebook p. 63-84; Discussion of 303 Creative v Elenis and Imminent Injury Analysis (blog post--no assignment in casebook)

Video: 

https://unl.yuja.com/V/Video?v=6827883&node=29033256&a=153865499&autoplay=1

Slavery and the "Masks of the Law"

 One of the great constitutional law scholars of the past fifty years, the late, great Judge John T. Noonan of the Ninth Circuit, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly.” He calls this process of dehumanization the “masks of the law.”

What Noonan meant by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way in his book entitled The Masks of the Law: “By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.” So, think about slavery in American legal history. Suppose the law wants to permit and even sanction slavery, as was the case in America before the Civil War. The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.” The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly.  

By the way, there is also a powerful example of slavery and the masks of the law in the recent Oscar-winning film, Twelve Years a Slave. It is the scene where the cruel slave-owner, Master Epps,  is brutally whipping Patsey, a female slave. He is literally tearing the flesh off her back with a bull whip for a minor act of disobedience. Solomon Northrup, a free man who was kidnapped and sold into slavery, denounces Epps for his inhumanity: “Thou Devil,” says Solomon. “Sooner or later, somewhere in the course of eternal justice, thou shalt answer for this sin!” Epps replies with a mask: “Sin? There is no sin. Man does how he pleases with his property."    

Are there other examples in history where the law refused to recognize the personhood and human dignity of a subcategory of human beings? Be very careful when analyzing laws that refuse to recognize the full humanity of any class of human beings, because persons classified as "nonpersons" are outside the protection of the law.