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II. Constitutional Doctrine as the Outcome of
Persuasive Lawyering
I didn’t come here to talk about commerce. I didn’t come here to argue the question of whether or not this Motel has an effect on commerce, certainly everything that happens in this country has an effect on commerce. But I did perceive, I hope, that in the writings of members of this Court there is still the great facet of personal liberty that this Court stands for. This Court under the Constitution is the last bulwark of personal liberty. Where else can a man go to defend personal liberty? So if you get to your questions that you asked, the answer is that commerce has got to stop somewhere with commerce, in the sense that a business function is commerce. And that the power of the Commerce Clause under the Constitution does not go to people. If you don’t accept that fundamental, I’m lost.10 Attorney Rolleston did lose. In fact, his declamation that people are not as protected as commerce also flowed directly into Justice Douglas’ concurrence, which reiterated that people discriminated against because of race should occupy “‘a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.’”11 Alternatively, consider our Constitution’s impeachment machinery. The Court’s landmark holding in Nixon v. United States12 announced that the method the Senate chooses to “try” impeachment cases lies in large part in its “sole” discretion, and thus may include delegation by the full Senate to a Senate committee.13 Not one casebook on constitutional law, however, refers to the following compressed exchange during oral argument on October 14, 1992, between Justice White and Solicitor General Kenneth Starr about syntactical emphasis, etymological pedigree, and the Court’s own practice of delegating authority to special masters: KENNETH STARR: I think the word “try” meant something different to the Framers. We’ve cited—
JUSTICE WHITE: Well, whatever it meant, they have to be able to—they have to fit it within the word “try.”
ANSWER: They have to fit it within the word “try.” Now, what did the Framers mean by try, and we have given to the Court the 1755 Samuel Johnson dictionary—to examine or to examine as a judge—and just as this Court examines as a judge in original cases by having a special master do, by the way, considerably more . . . .14 The Court’s unanimous decision issued on January 13, 1993, includes both the late Chief Justice Rehnquist’s holding citing to Samuel Johnson’s dictionary15 and Justice White’s concurrence noting the practice of courts to delegate to special masters.16 Relating to executive power, examine the final moments of argument framing the Court’s landmark decision in Youngstown Sheet & Tube Co. v. Sawyer.17 Amicus counsel Harold Heiss, representing the railroad labor unions, had this extra-legal retort to whether America’s hostilities in Korea warranted seizure of domestic steel production facilities: “Whatever there may be in Korea, I can say this: My boy is there and my boy told me that he is far more interested in the preservation of the fundamental freedom of this country than he is in anything in Korea.”18 9.379 U.S. 241 (1964). 10.Hear Recording of Oral Argument on Oct. 5, 1964, at clip 2, Heart of Atlanta Motel, 379 U.S. 241 (No. 2). This argument excerpt has intonations of bigotry, yet asserts, as its point of law, the states’ rights viewpoint that prevailed in United States v. Lopez, 514 U.S. 549, 567–68 (1995), and United States v. Morrison, 529 U.S. 598, 615–18 (2000), but failed in the bracketing cases of Wickard v. Filburn, 317 U.S. 111, 125–29 (1942), and Gonzales v. Raich, 545 U.S. 1, 17–18, 29 (2005). 11.Heart of Atlanta Motel, 379 U.S. at 279 (Douglas, J., concurring) (quoting Edwards v. California, 314 U.S. 160, 177 (1941)). 12.506 U.S. 224 (1993). 13.Id. at 226, 237–38 (interpreting U.S. Const. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments.”)). 15.Nixon, 506 U.S. at 229–30. 16.Id. at 250 (White, J., concurring). 17.343 U.S. 579 (1952). 18.Transcript of Oral Argument on May 13, 1952, Youngstown, 343 U.S. 579 (Nos. 744, 745), reprinted in 48 Landmark Briefs and Arguments, supra note 1, at 994. |
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reat and small cases that stand in decisional edifice—as well as
buttressed by scholarly scaffolding—are heard aloud and at inception by the
Court as controversies compressed in courtroom clashes over constitutional
syntax, origin and purpose. Consider the Commerce Clause. Although leading
casebooks contain excerpts from Heart of Atlanta Motel, Inc. v. United States,