The Hohfeldian Approach to Constitutional Cases

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals August 2015 The Hohfeldian Approach to Constitutional Cases H. Newcomb Morse Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Constitutional Law Commons Recommended Citation Morse, H. Newcomb (1976) "The Hohfeldian Approach to Constitutional Cases," Akron Law Review: Vol. 9 : Iss. 1 , Article 1. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol9/iss1/1 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Morse: Hohfeldian Approach to Constitutional Cases THE HOHFELDIAN APPROACH TO CONSTITUTIONAL CASES H. NEWCOMB MORSE* NFERRED, OR AT THE MOST rebuttably presumed, is a slight acquaintanceship on the part of the reader with the work on jural opposites and jural correlatives by Professor W. Newcomb Hohfeld. 1 The Founding Fathers, as though anticipating the coming of the Messianic logician, used all of the four Hohfeldian gravamen terms-rights, privileges, powers and immunities-in the Constitution of the United States,' and for this reason the author perceives a nexus between Hohfeldian logic and constitutional construction. The appropriate initial touchstone for contemporary use of this theory could appear to be the 1968 case of Flast v. Cohen,3 considering Mr. Justice Harlan's allusions to Hohfeld in his dissenting opinion." * Professor of Law, Memphis State University; J.D., Tulane University; LL.M., University of Wisconsin; Fellow, American Academy of Forensic Sciences. IHohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913) [hereinafter cited as Hohfeld]. The philosophical concept of jural opposites and correlatives which has gathered dust for approximately 50 years has recently enjoyed a rebirth, and still offers a viable method of constitutional analysis. A summary treatment of the Hohfeldian system would leave one with the four keystone concepts of rights, privileges, powers and immunities as well as an awareness of the critical legal interrelations between those four signal words. The classification developed by Hohfeld groups the four signal words as follows: Jural Opposites Jural rights no rights right privilege duty privilege power disability power immunity liability immunity disability liability no right Correlatives duty be ascertained cannot meaning legal appropriate that an The theory further asserts without reference to its partner, either opposite or correlative and the relationships embodied therein. I The word "right" appears in the Constitution in the first, second, fourth, sixth, seventh, twelfth, fourteenth, fifteenth, nineteenth, twentieth, and twenty-fourth amendments. The word in its plural form is contained in the ninth amendment. The word "privilege" is found in Art. I, § 9, cl. 6. The word in its plural form is included in Art. IV, § 2, cl. 2 and in the fourteenth amendment. The word in its derivative form as "privileged" is incorporated in Art. I, § 6, cl. 4. The word "power" appears in Art. 1, § 2, cl. 5; Art. I, § 3, cl. 6; Art. 1, § 8, cl. 1; Art. I, § 10, cl. 3; Art. II, § 1, cl. 1; Art. II, §2, cl. 1; Art. II, § 2, cl. 2; Art. H, § 2, cl. 3; Art. III, § 1, cl. 1; Art. III, § 2, cl. 1; Art. III, § 3, cl. 2; Art. IV, § 3, cl. 2, and in the eleventh, thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twenty-third, and twenty-fourth amendments. The word in its plural form is contained in Art. I, § 1, cl. 1; Art. I, § 8, cl. 18; Art. II, § 1, cl. 6, and in the tenth and twenty-fifth amendments. The word in its derivative form as "empower" is found in the seventeenth amendment. The word "immunity" is not included in the Constitution. However, the word in its plural form is incorporated in Art. IV, § 2, cl. 1 and in the fourteenth amendment. s392 U.S. 83 (1968). Id. at 119, 120, 121, 124, 125, 131, 132 (Harlan, J., dissenting). Published by IdeaExchange@UAkron, 1976 1 Akron Law Review, Vol. 9 [1976], Iss. 1, Art. 1 AKRON LAW REVIEW [Vol. 9:1 In Flast a taxpayer successfully attacked a federal statute,5 adopted by the Congress in pursuance of its power under article I, section 8, clause 1 of the Constitution to spend for the general welfare, on the ground that it breached, ilter alia, the establishment clause of the first amendment.' Mr. Chief Justice Warren, as the author of the opinion of the Court, held that the establishment clause operates as a specific constitutional limitation upon the exercise by the Congress of the spending power conferred by article I, section 8, clause 1. However, no Hohfeldian gravamen word is contained in the establishment clause to counter the term "power" found in article I, section 8, clause 1. Forty-five years prior to Flast, in Frothingham v. Mellon,' with Mr. Justice Sutherland as the organ of the Court, a taxpayer unsuccessfully challenged a federal statute,9 enacted by the Congress pursuant to its power under article I, section 8, clause 1 to spend for the general welfare, on the ground that it infracted the tenth amendment and the due process clause of the fifth amendment.1" The fifth amendment includes no Hohfeldian gravamen word to check the term "power" contained in article I, section 8, clause 1. But the word "powers," found in the tenth amendment cancels, and not merely counters, the exercise of "power" under the general welfare clause, unless it relates directly to one or more instances of specific congressional authorization enumerated in article I, section 8. As the same Mr. Justice Sutherland admonished in Carter v. Carter Coal Company, 11 13 years after Frothingham: "It [the Framers' Convention] made no grant of authority to Congress to legislate substantively for the general welfare ...and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted." 1 Thus, based upon Hohfeldian precision-thinking, a legally incorrect result ensued in both Frothingham and Flast. Mr. Justice Harlan's plaint, in his dissenting opinion in Flast, that he found no basis for distinction among the establishment clause, the tenth amendment, and the due process clause of the fifth amendment as specific limitations upon the Congress' spending power" would seem to dispel the inference of even a slight acquaintanceship on his part with the "Hohfeld system." 5Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 241 et seq., 821 et seq. (Supp. II, 1964). 6 392 U.S. at 85. 7 Id. at 104. 8262 U.S. at 447 (1923). 9Act (...truncated)