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Wednesday, October 08, 2008

How Can I Be Unconstitutional in Daily Life?

MillerliteonconstitutionHave you ever done anything illegal? It’s not difficult. There are about a million laws you can break. You could throw a snowball at your friend in Topeka, Kansas. Even if it’s on your own property, you could land upwards of five months in jail. See Code of the City of Topeka, Kan. §§ 1-7, 54-123.

But what if you wake up in the morning, and you want to do something unconstitutional? If you’re not the president, your opportunities are limited. Nonetheless, doing something unconstitutional is not out of the reach of the common citizen.

Take a six pack of beer out of your refrigerator in Manhattan, and then drive through the Lincoln Tunnel to New Jersey in order to give it to your underage cousin. That’s not only illegal, it’s actually unconstitutional.

The 21st Amendment, which repealed prohibition, provides: “The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

So there’s your con law fun fact of the day. (And it’s yet another reason to actually assign the Constitution as reading in your Constitutional Law class.)

Posted by Eric E. Johnson on October 8, 2008 at 07:31 AM in Constitutional thoughts, Odd World | Permalink


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Not to venture too far off-topic, but I have a question about the "in violation of the laws thereof" clause of the 21st amendment, if there's anyone here who can help me out.

If I remember, the holding of South Dakota v. Dole was that the federal government can set a national minimum drinking age indirectly even if it cannot do so directly. It did not reach the question as to whether Congress actually lacked the power to regulate the drinking age directly.

It does not seem to me that there is anything in the Constitution prohibiting Congress from creating a national drinking age. First, I have to believe that regulating the sale of alcohol easily falls within the commerce clause. Second, if the federal government were to enact a law saying that no person shall sell liquor to any person under 25, then I cannot see how such a law would cause anyone to "transport[] or import[]" booze into any state "in violation of the laws thereof."

(and finally, even if Congress does have this power, is the holding in Dole weakened by cases like Printz and New York?)

Posted by: NYU 2L | Oct 10, 2008 12:47:05 AM

I don't think Edward's 3A example works under Barron. The passive-voice amendments are impliedly limited to the feds. Otherwise the 2A ("the right of the people to keep and bear Arms, shall not be infringed"), 4A ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated") and others could be violated by private action too. If, per Barron, (pre-14A) state home invasions & gun confiscations aren't (federally) unconstitutional, then private home invasions & gun confiscations aren't either.

Posted by: Chris | Oct 9, 2008 11:10:15 AM

Hmmm -- not my area, I admit, but I challenge. At most, you are violating the Constitution only to the extent that you're violating state law, so it's a weak and contingent instance. Moreover, I think this understanding may be defensible at first blush, but isn't how the provision actually operates. I thought Section 2 was understood as non-self-executing: that is, it wasn't to establish a federal offense, but rather to permit states to do that which otherwise might be regarded as beyond their authority by virtue of the Commerce Clause.

My rival candidate: the Third Amendment, which provides that "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." This looks, at first blush, like something that can be violated by any soldier directing the quartering, and that includes members of the National Guard.

Posted by: Edward Swaine | Oct 8, 2008 5:58:12 PM

What about the right to interstate travel? See United States v. Guest, 383 U.S. 745, 759 (1966)("[T]he constitutional right of interstate travel is a right secured against interference from any source whatever, whether governmental or private.").

Posted by: Chris Lund | Oct 8, 2008 5:31:59 PM

Re: "That's a great graphic." Well, it would be better if you did some free advertising for a worthy brewery, say, this one: http://www.mendobrew.com/home.html or this one: http://www.anchorbrewing.com/ Alas, I can no longer drink the stuff....

Posted by: Patrick S. O'Donnell | Oct 8, 2008 3:58:43 PM

I believe Prof. Kerr is correct. I read "in violation of the laws thereof" as modifying the entire part of the sentence that precedes it, thus suggesting that the "transportation or importation" must be illegal. I think this interpretation is supported by the word "thereof," which references back to "State, Territory, or Possession of the United States." Those words are placed before "for delivery or use therein of intoxicating liquors"; if the "in violation of" clause modified only "for delivery or use," it would be odd to use thereof to reference back to an earlier part of the sentence not referenced.

Posted by: D | Oct 8, 2008 12:04:27 PM

The answer to Suzanna's question, in my opinion, is holding someone as a slave or in involuntary servitude, which violates, on its own terms, the 13th Amendment.

I did not discuss slavery and involuntary servitude in my post because I thought it might bring down the decidedly lite nature of the piece. I mean, look at that graphic. That's a great graphic. You can't use that graphic and then talk about involuntary servitude.

With regard to Orin's question, as I read the 21st Amendment, New Jersey need only have a law prohibiting underage possession. Transporting the liquor with a purpose that would violate that underage possession statute would then violate the 21st Amendment.

Posted by: Eric E. Johnson | Oct 8, 2008 11:35:30 AM

I don't think the treason clause counts. It defines treason, sets an evidentiary standard, and gives Congress the power to define the punishment. That doesn't seem self-executing--you still need Congress to act, yes?

Congress is given the power to "define and punish" piracies and felonies on the high seas and offenses against the law of nations. It seems to me the treaty clause is saying, here is the "define," and Congress still gets to "punish." Could Congress decide not to?

Posted by: Jennifer Hendricks | Oct 8, 2008 11:16:17 AM

Does there need to be a NJ law on entering the state or transporting alchohol in the state with intent to provide a minor with alcohol?

Also, I should add that under some versions of the Fourth Amendment's agency test, it should be possible for a private person to become a Fourth Amendment state actor and violate some Fourth Amendment rights. I mean, if you want to.

Posted by: Orin Kerr | Oct 8, 2008 10:18:52 AM

Hold someone as a slave or in involuntary servitude.

Posted by: Howard Wasserman | Oct 8, 2008 10:14:47 AM

The other would likely be to commit treason, right? It's the only crime mentioned in the Constitution itself, I believe. And anyone could go hang out in Norfolk and count ships leaving, transmitting them to some enemy or other--I think this happened during WWII.

Posted by: Vanceone | Oct 8, 2008 10:06:57 AM

There are only two ways that the average individual citizen (who is not a government employee) can violate the federal Constitution. You've identified one of them. What is the other?

Posted by: Suzanna Sherry | Oct 8, 2008 10:03:08 AM

Fun fact indeed. Although I would say that those of us who work in/for public universities have the ability to do lots of unconstitutional things.

Posted by: Joseph Slater | Oct 8, 2008 9:50:41 AM

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