Melissa Hailey 1

CONSTITUTIONAL LAW OUTLINE

Valauri

THE EVOLUTION OF CONSTITUTIONAL LAW

THE FOUNDING

- Background Assumptions of the Constitution

o Natural Rights
 inalienable rights one is born with
• Ex: life, liberty, pursuit of happiness
• Endowed with natural rights by God, not the government
o If your rights come from the government, the
government can take them away
o Under the Natural Rights theory, the government
cannot take them away
 Social Contract:
• Theory of natural rights also connected to the “social
contract”
o Before you enter into a society, person is in the
“natural state”
o When people enter into society, they give up some
rights as part of the social contract
o In the state of nature, your natural rights are
insecure
 You have a right, but the right can be
violated without remedy or protection
o Under social contract view, the primary purpose
of government is to protect your rights
o If government does not do this, people have a
right to abolish the government and get a new
form of government
 Equal Rights
• Everyone has the same rights and everyone is created equal
o Lincoln/Douglas debate argued what does “all
men are created equal” really mean
o Created equal in terms of the rights that we have
(life, liberty, pursuit of happiness)
o The Alleged Failure of the Articles of Confederation
 Established a “united states”
 Confederation: league of independent entities/states joined
together
 Problems of the Articles of Confederation:
• Federal Government lacked the power to tax
• States encroached on Federal Authority
o In terms of foreign affairs, the federal government
now has the power to engage in treaties/executive
agreements with other nations
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o Under the Articles of Confederation, the states were

entering into separate treaties with foreign nations
o Inefficient foreign trade
• Conference in Annapolis in 1785 to revise the Articles of
Confederation
o Drafting and Ratifying the Constitution
 1787 Constitutional Convention
• initially intended to revise the Articles of Confederation
• instead, created a new Constitution
• no longer a confederation
• Union/Federal system
o Differs from a confederation because it’s more
unitary
- The Orgins of the Bill of Rights
o Anti-federalist Complaints about the Lack of a Bill of Rights
 Anti-federalists: objected to the Constitution
• Number one objection: Bill of Rights not included
o Federalists Objections to a Bill of Rights
 Federalists: in favor of the Constitution
• Said you didn’t need the Bill of Rights because the federal
government has limited and enumerated powers and going
beyond the limited/enumerated powers is
unconstitutional, even though there is no express grant of
individual freedom
o The Anti-Federalist Reply
o James Madison Delivers on the Promise of a Bill of Rights
- The First Constitutional Controversies
o Bank of the US
 Washington has to make the decision
 In favor of the bank:
• Hamilton – Secretary of the treasury
 Opposing the Bank
• All from Virginia
o Tend to believe in the Doctrine of States Rights
 State sovereignty as apposed to the Federal
Governement
 The Constitution did not change the basic
relation between the federal government
and the United States
 Worried that the Federal Government was
going to encroach the power of the States
 Felt that the Constittuion should not be read
to give sweeping unlimited powers to the
Federal Government
 Does the Constitution give Congress the power to form a National
Bank?
• What’s the proper scope of federal power under the
Constitution
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 Madison:
• Speech lays out the position against the bank:
o Today, to set up a bank or corporations, must file
with the government (usually state) and pay a fee
o In the time of the bank debate, did not have the
state laws allowing for the formation of a
corporation
 Negative evidence from the Federal Convention that is one thing
that leads him to believe the power does not grant him power of
incorporation:
• Corporate charters did not get approved
• Relevant because it showed that the Constitution should
not be read to include that power as a matter of legislative
intent
• It’s not on the face of the document, so they have to look
for what the body adopted the writing to do, so the fact that
it was considered and rejected is relavent to show the
legislative intent
 “an interpretation that destroys the very characteristic of the
government cannot be just”
• including implied powers goes against the enumerated
limited powers
• Madison would say to adopt a broad reading of the powers
of the Federal Gov. would go against the theory behind the
document
 There is no specific provision of the Constitution that says
Congress has the power to incorporate a bank (or any corporation)
• If you want to look for provisions that give the power to
incorporate, what are you candidates?
o Necessary and Proper: use this provision to argue
that the incorporation is within Congress’ power
because it is necessary and proper
 Argument against the necessary and proper
interpretation: Federal Gov. has limited
and enumerated powers, so you can’t use
the necessary and proper clause standing
alone to give Congress power; if you allow
necessary and proper to do anything you
want, all limitations are irrelevant
 This does not mean that necessary and
proper is a nullity, but necessary and proper
 Necessary and proper is an auxillary
Constitutional provision
• Standing alone, its not enough, but it
may help expand or interpret
another clause
 Articles of Confederation, II: Each state
retains its sovereignty, freedom, and
independence and every power, jurisdiction
and right, which is not by this
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Confederation expressly delegated to the US

in Congress assembled
• Congress did not have a power to
grant a bank because it’s not
expressly granted
• Same provision does NOT exist in
the Constitution, but the closest to it
is the necessary an proper clause
• Madison would say that necessary
and proper clause means the same
thing as Article II in the Articles of
Confederation
 Hamilton view on necessary and proper
• Necessary means convenient or
useful
• the fact that there’s different
wording in Article II from the
Constitution means that they
changed the wording because they
changed the meaning, and that
necessary and proper is more
ambiguous and less limiting than the
Articles
 Proper
• Hamilton would argue that the term
proper expands or adds to the power
of the government and that proper is
just another word for usefulo
• Jefferson would argue that the term
“and” limits the power by stating
that the law must be both necessary
and proper
o Two separate tests:
 1. Is it absolutely
necessary?
 2. Is it proper in
some sense of the
characteristic of the
Constitution?
o Does it accord with the basic
principle of the constitution
o Even if it is absolutely
necessary, it still has to pass
the proper test
o Power to Lay and Collect taxes
 Madison does not deny that a National Bank
might be helpful or useful in collecting taxes
 Madison says that a National Bank is not
necessary in collecting taxes
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• Necessary is not a completely clear

and unambiguous term
• Madison interpreted it to mean
strictly necessary, and in that
interpretation, you could put the
money anywhere
• Under the strict interpretation, the
powers of the federal government
are very limited
o Power to borrow money on the credit of the US
 Goes back to the same argument as taxes,
having a bank is useful to borrow money,
but not necessary
o Power to Coin money
 Same argument with necessary and proper
o Power to regulate interstate commerce
 Express v. implicit
• Madison, Randolf and Jefferson say that the power has to
explicit
• Hamilton says that the power can be implied
• At this time in history, nobody took the middle ground
 Randolf’s view:
• His three arguments are increasingly specific ways of
making the same argument: it is implicit
(useful/helpful/convenient) way of exercising the power,
but when you’re on the Madison side, that isn’t the view
you’re going to take of necessary and proper or implicit
• “to be necessary is to b e incidental or, in other words, may
be denominated the natural means of executing a power.
The phrase and proper, if it has any meaning, does not
enlarge the powers of Congress, but rather restricts them”
 Jefferson’s view:
• The Constitution allows only the means which are
necessary and not those which are merely convenient or
effecting the numerated powers
 Hamilton’s view:
• Before he gets to the document, he tries to give some
support for his view from the inherent powers of any
government
o The whole general notion of a government is that
a gov. by implication is going to have the power to
use the necessary means to meet the ends that
have been prescribed to them, otherwise it’s
irrational
• Implied powers are included in the power of Congress
• Necessary means useful or condusive to something
• Page 58, paragraph 4 sums up Hamilton’s view
o Concept of “Sovereinty”
 Chisholm v. Georgia
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• Issue: whether the Constitution permitted states to be

sued by citizens of other states in Federal Courts
• Argument:
o In order to bring a cause of action against
someone, you have to have standing and
jurisdiction
o In this case, Article III of the Constitution says an
individual can sue a state in a Federal Court
o Georgia gave up part of its sovereignty when it
ratified the Constitution and joined the Union
• Article III, Section 2: The judicial power shall extend to all
cases, in law and equity, arising under this Constitution,
the law s of the US, and treatiwes 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 US chall 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 grats of different states, and between a state, or the
citizens thereof, and foreign states, citizens or subjects
• Holding:
o “the people of the United States" intended to bind
the states by the legislative, executive, and
judicial powers of the national government
o supreme or sovereign power was retained by
citizens themselves, not by the "artificial person"
of the State of Georgia.
o The Constitution made clear that controversies
between individual states and citizens of other
states were under the jurisdiction of federal
courts.
o State conduct was subject to judicial review.
• The Justices based their decision on fundamental
principles, and only secondarily on the test of the
COnstitution
 The Eleventh Amendment
• Amendment XI: The Judicial power of the US shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of
any Foreign State
• The 11th Amendment reversed the decision of Chisholm v.
Georgia and clarified that an individual cannot sue another
state
o Chisholm decision was February 18, 1793, and the
Eleventh Amendment was passed on February 7,
1795
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o proposed, adopted, and ratified so quickly

because
 The states didn’t want to pay debts
 The states didn’t want to be sued
o Fundemental Principles v. Expressed Constraints
 Calder v. Bull
• Issue: whether a State law barring appeals initiated 18
months after the ruling is an ex post facto law, prohibited
by the Constitution of the US, and whether any law of the
Federal government, or of any of the State governments,
contrary to the Constitution of the US, is void
• Holding: the statute was not an ex pos facto law
o Chase: legislature cannot do anything not stated
in the Constitution
o Iredell: legislatures had all powers not expressly
prohibited by the federal and State Constitutions
o The Alien and Sedition Acts of 1798
 1790s, undeclared war with France
 Alien Act said that foreigners could be deported if the President
wished
 Sedition Act
• Similar to the tort of libel
• Different from libel in that libel is writing something that it
false and malicious, sedition is libel of the
government/governmental officials
• Freedom of the press/speech/assembly was threatened by
the Sedition Act
o The government could use this act to silence all
their political critics
 No famous case about the Alien and Sedition Acts
• The Act was appealed in 1800 (two years later) and the
people convicted under the Act were pardoned
• There was no Supreme Court case saying these acts are
unconstitutional
• The thought ever since then was that the Alien and
Sedition Acts were unconstitutional
 Kentucky and Virginia passed resolutions in 1798
• Said that the states should have a say in this matter
o The states are the original ratifiers of the social
contract, so they should have say in interpreting
the meaning of the social contract
o Basic contract principle, when there’s an
ambiguity, go to the document first, then the
parties
o The states were ‘parties’ to the
‘contract’/Constitution
o Alternate theory is that the real parties to the
Constitution are “we the people”
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 If the states really were the parties that

created the Constitution, why does it start
out saying “we the people”
• Said that the Acts were unconstitutional
o Not the same thing as saying the states were
nullifying the Acts because the statutes were
fundamentally/inherently unconstitutional
 Nullify: renders it a nullity/nothing; takes it
away
 They don’t have to nullify it, because it
violates the underlying principle of the
Constitutional
 You don’t have to do anything to make the
Act unconstitutional because it was
unconstitutional when it was passed
 Difference between inherently
unconstitutional and nullified
• Inherently unconstitutional: it was
never constitutional at all, it never
was officially passed
• Nullification: it’s as if something
didn’t happen (but it really did
happen)
o For a statute/ordinance to become
Unconstitutional
 Usually the US Supreme Court holds it
unconstitutional
 Use this approach now because
• It’s more consistent
• Popular opinion can change over
time
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THE MARSHALL COURT

- The Judicial Power

o John Marshall, a Federalist, was Chief Justice of the US
o The institution of Judicial Review
 The practice wherein the Supreme Court reviews/interprets the
Constitutionality of the law
 This power is not explicitly given anywhere in the Constitution
itself
 This is/may be an implied power
o Marbury v. Madison
 Facts:
• Judiciary Act in 1801 (act of congress) said that the
President could create federal courts and appoint new
federal courts
• Federal Court created by the Constitution is the Supreme
Court, all others are an act of Congress pursuant to Article
III
• President Adams appointed several different judges,
including Marbury
• Marbury’s commission was not delivered
• Jefferson (new President) told Madison (new Secretary of
State) not to deliver the commission
• Marbury argued: Judiciary Act is invalid because it ???
 Issues/Holdings:
• Does the applicant have a right to the Commission?
o Yes, it was issued by the President, signed, and
sealed; Problem in the delivery does not make the
commission not effective
• Is a lawsuit the proper remedy?
o Yes
• MOST IMPORTANTLY: Is the Supreme Court the proper
place for Marbury to get the relief he requested?
o Yes;
o the Constitution was "the fundamental and
paramount law of the nation"
o "an act of the legislature repugnant to the
constitution is void."
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o In other words, when the Constitution--the

nation's highest law--conflicts with an act of the
legislature, that act is invalid.
o This case establishes the Supreme Court's power
of judicial review.
o Fletcher v. Peck
 For the first time, the US Supreme Court holds a State law
unconstitutional
 Facts:
• In 1795, the Georgia state legislature passed a land grant
awarding territory to four companies.
• The following year, however, the legislature voided the law
and declared all rights and claims under it to be invalid. In
1800, John Peck acquired land that was part of the original
legislative grant.
• He then sold the land to Robert Fletcher three years later,
claiming that past sales of the land had been legitimate.
• Fletcher argued that since the original sale of the land had
been declared invalid, Peck had no legal right to sell the
land and thus committed a breach of contract.
• land was sold to a bona fide purchaser for value
• the law made his purchase void
• purchaser claimed that the Act violated his property and
contract rights
 Issue: Whether the contract between Fletcher and Peck could be
invalidated by an act of the Georgia legislature
 Holding:
• since the estate had been legally "passed into the hands of a
purchaser for a valuable consideration," the Georgia
legislature could not take away the land or invalidate the
contract.
• Noting that the Constitution did not permit bills of
attainder or ex post facto laws, the Court held that laws
annulling contracts or grants made by previous legislative
acts were constitutionally impermissible.
 Reasoning:
• Constitutional Provisions:
o 5th Amendment
o 14th Amendment
o Article I: states can’t alter obligations under
contract
 2 types of contracts:
• contracts between 2 private parties
• contracts between a private party
and state
 this was the second type of contract
 the fact that one of the parties is a state
increases court’s scrutiny
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• the court was suspicious of a state’s

modification of its own contracts
• conflict of interest/self dealing
o no one should be a judge in
their own case
o in this case, the state was, in
effect, a judge of its own case
• the court leaned primarily on other factors rather than the
contextual interpretation of the Constitution
o underlying principles of fairness and fair dealing
 nobody should be a judge in their own case
 states should not have the power to modify
their own contracts
 states should not alter the vested rights of
individuals
o the court would have most likely come to the
same conclusion even w/o the Constitutional
contextual interpretation based on underlying
principles of fairness and justice
 most of the time there is not a real conflict
 to a significant extent, a lot of the provisions
are merely declaratory of principles that
already exist in the law
• the right/power/principle already
exists, and all the legal provision
does is declare/point at it as opposed
to the situation where the rule does
not exist before and only comes into
existence because the legislature
passed it (example speed limits)
 declare it because, like the argument of the
bill of rights, it doesn’t hurt to have the
declarations; reassures people who need to
see it on paper
o Martin v. Hunter’s Lessee
 Court holds that its judical power extends to appeals from the
judgment s of state courts
 Facts:
• land was taken from Martin and given to Hunter and
Hunter’s Lessee
• US Treaty with Britain at the end of the Revolutionary
War, and said that you can’t take away the loyalist property
without just compensation
• Treaty embodied a natural principle of justice: eminent
domain; right to property; if they take it, they have to
compensate you for it
• Even if the treaty did not exist, Martin would still have an
argument
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• State’s Argument: the Supreme Court did not have the

authority to overrule their case
 Issue: Whether the Supreme Court had authority to overrule the
State case
 Holding: Supreme Court said they can overrule the state case
• Supreme Court has appellate jurisdiction, and in the
appellate jurisdiction they have the right to review state
cases
 Article III of the Constitution seems to imply that the Supreme
Court has a mandatory power to hear appellate cases
• “no remedy, no right”
o if you have a right, it implies a remedy
o if the US Supreme Court has the right/power to
review the cases, then they have the right to issue
the remedies
 The Supreme Court has the right to review all federal
issues/questions
• One arising out of or involving the Constitution, Federal
Statutes, Treaties
• Federal Question Doctrine
• Have this power whether the states like it or not
- Necessary and Proper Clause
o McCullogh v. Maryland
 Facts:
• issue involving the National Bank
• incorporated in 1816 after the War of 1812
• heard in the Maryland State Courts
• McCulloch was the cashier at the US Bank Branch
in Baltimore
• Paper money, then, was printed by banks, not the
Federal Reserve (bank notes)
• Maryland statute said that the banks had to pay
the taxes by buying special paper from the states to
issue to bank notes
• The bank in McCulloch said they didn’t need that
paper and would use their own
• The bank violated the terms of the Maryland
Statute
• Bank argued that even though they violated the
statute, they didn’t have to pay the taxes because it
was unconstitutional because Congress did not
have authority to pass the law
o P’s argument: The constitution is the Supreme Law of the land
and imposing a tax on the Bank of the US was unconstitutional
because the states don’t have the power to burden the
operations of Constitutional Law
 Federal Consitution is only one of limited and
enumerated powers
 Not the supreme law of the land on everything
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 This does not fall within one of the express powers

 This is an implied power
• The phrase implied power does not appear within
the Constitution
 Necessary and Proper
• Marshall: Congress can choose the means to reach
the necessary end
o If the framers wanted it to be strictly
necessary, they would have stated that
• Madison: must be absolutely necessary
o Marshall fails to take into account that if
they wanted it to be construed loosely,
they could have also stated that
• Articles of Confederation
o Had a provision that said the Federal Gov.
was limited to their express powers
o The Country decided to go from the
Articles, with a strict limitation, to a
situation where there is a necessary and
proper clause
• Placement w/in the Constitution
o In Article I that deals with Congress, there
are 2 important sections
 Section 8 deals with the grants of
power to Congress
 Section 9 deals with the limitations to
the powers of congress
o Marshall argues that the fact that the
Necessary and Proper Clause is in section
8 which deals with the grants of power
means that the powers should be
construed liberally rather than limiting
• “Proper”
o used to limit the necessary?
o Used to expand the necessary?
o Marshall: the court will have the power to
strike down only if it’s improper
o “if Congress invokes one of the limited and
enumerated powers improperly, then the
Supreme Court ought to strike it down”
 implication means that in order for
there to be a necessary and proper
exercise of power, there has to be a
reasonable type of relationship
between the ends (explicitly given in
Article I, Section 8) and the means
(implicit)
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 Congress has the power to bring

about reasonable means to bring out
the means
 Marshall thinks necessary and proper
means suitable or reasonable or
appropriate
 Necessary and Proper means are
what a reasonable Congress would do
 decided by Marshall, great quotes:
• “The government of the Union, then (whatever
may be the influence of fact on the case) is
emphatically, and truly, a government of the
people. In form and in substance it emanates from
them. Its powers are granted by them, and are to
be exercised directly on them, and for their
benefit.”
• “The government is acknowledged by all to be one
of enumerated powers.”
• “The government of the US, though limited in its
powers, is supreme; and its laws, when made in
pursuance of the Constitution, form the supreme
law of the land, “anything in the Consitution or
laws of any state to the contrary notwithstanding”
• “It may with great reason be contended, theat a
government, entrusted with such ample powers,
on the due execution of which the happiness and
prosperity of the nation so viatally depends, must
also be entrusted with ample means for their
executeion. The power being given, it is the
ineterst of the nation to facilitate its execution”
• “The government which has a right to do an act,
and ahs imposed on it, the duty of performing hat
act, must, according to the dictates of reason, be
allowed to select the means”
• Necessary: “If reference be had to its use in the
common affairs of the world, or in approved
authors, we find that it frequently imports no
more that one thing is convenient, or useful, or
essential to another. To employ the means
necessary to an end, is generally understood as
employing any means calculated to produce the
end, and not as being confined to those single
means, without which the end would be entirely
unattainable.”
• “The sound construction of the constitution must
allow to the national legislature that discretion,
with respect to the means by which the powers it
confers are to be carried into execution, which will
enable that body to perfom the high duties
assigned to it, in the manner most beneficial to the
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people. Let the end be legitimate, let it be within

the scope of the Constitution, and all means which
are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the
letter and spirit of the Constituion, are
Constitutional.”
- The Commerce Clause
o Gibbons v. Ogden
 Facts:
• A New York state law gave two individuals the exclusive
right to operate steamboats on waters within state
jurisdiction.
• Laws like this one were duplicated elsewhere which led to
friction as some states would require foreign (out-of-state)
boats to pay substantial fees for navigation privileges.
• In this case a steamboat owner who did business between
New York and New Jersey challenged the monopoly that
New York had granted, which forced him to obtain a
special operating permit from the state to navigate on its
waters.
 Issue: Whether the State of NY had the authority to regulate
interstate commerce
 Holding: NY did not have the authority to regulate interstate
commerce, and their law was therefore unconstitutional
 Reason:
• New York's licensing requirement for out-of-state
operators was inconsistent with a congressional act
regulating the coasting trade.
• The New York law was invalid by virtue of the Supremacy
Clause.
• Chief Justice Marshall developed a clear definition of the
word commerce, which included navigation on interstate
waterways.
• He also gave meaning to the phrase "among the several
states" in the Commerce Clause.
• Marshall's was one of the earliest and most influential
opinions concerning this important clause.
• He concluded that regulation of navigation by steamboat
operators and others for purposes of conducting interstate
commerce was a power reserved to and exercised by the
Congress.
o Wilson v. Black Bird Creek Marsh Co.
 Facts:
• The state of Delaware authorized the Blackbird Creek
Marsh Company to construct a dam spanning the
Blackbird Creek.
• Willson, the licensed owner of a sailing vessel, was
travelling on the Creek and broke through the dam.
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• The Company successfully sued Willson for trespassing

and obtained a court order for Willson to pay damages.
• Willson then brought the case to the Supreme Court.
 Issue: Whether Delaware's authorization of the building of the
dam unconstitutionally infringed upon Congress's powers under
the Commerce Clause
 Holding:
• the Act's interference with the navigation of the Blackbird
Creek was "an affair between the government of Delaware
and its citizens," and was not in conflict with the
Commerce Clause.
• The Court found that Congress had taken no actions with
which the Delaware authorization could conflict:
• "We do not think that the Act. . .can. . .be considered as
repugnant to the power to regulate commerce in its
dormant state, or as being in conflict with any law passed
on the subject."
- The Bill of Rights
o Barron v. City of Baltimore
 Barron is to the Fourteenth Amendment what Chisholm was to
the Eleventh Amendment
 important to appreciate the need for and controversy surrounding
the incorporation doctrine
• Incorporation Doctrine: developed in the twentieth
century, by which selected portions of the Bill of Rights
were “incorporated” into the Fourteenth Amendment and
applied to the states
 Facts:
• John Barron was co-owner of a profitable wharf in the
harbor of Baltimore.
• As the city developed and expanded, large amounts of sand
accumulated in the harbor, depriving Barron of the deep
waters which had been the key to his successful business.
• He sued the city to recover a portion of his financial losses.
 Issue: Whether the Fifth Amendment denies the states as well as
the national government the right to take private property for
public use without justly compensating the property's owner.
 Holding: No, the Fifth Amendment does not apply to the States
• Marshall: the limitations on government articulated in the
Fifth Amendment were specifically intended to limit the
powers of the national government.
• Citing the intent of the framers and the development of the
Bill of Rights as an exclusive check on the government in
Washington D.C., Marshall argued that the Supreme Court
had no jurisdiction in this case since the Fifth Amendment
was not applicable to the states.
 Holding is inconsistent with Gibbons, why?
• Willson is a police power statute
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• Federal government does not have police power to regulate

health and safety
• Dam had a health and safety aspect because the “swamp”
decreased property value
o swamps associated with mosquitos/malaria and
was therefore a health risk
• because the state regulations in Gibbons and Willson were
different, the State had the right to control in Willson, but
not Gibbons

THE TANEY COURT

- The Commerce Clause and the Police Power of the States

o City of New York v. Miln
 Facts:
• A state law required all vessels docking in New York City to
provide a list of passengers and to post security against the
passengers from becoming public charges (attempting to
regulate the paupers/beggers/poor people).
• Miln, the master of a ship, refused to comply with the law.
• The city sought to collect a penalty for Miln's failure to file
the report.
 Issue: Whether the New York law violates the Commerce Clause
which vests all power over interstate and foreign commerce in
Congress
 Holding:
• The Court upheld the state law.
• The justices ducked the Commerce Clause issue and
invoked what was to become the state "police power" -- the
right of a sovereign to take all necessary steps to protect
the health, safety, and welfare of its citizens.
• According to Barbour, who wrote the majority opinion, a
state is as competent "to provide precautionary measures
against the moral pestilence of paupers, vagabonds, and
possible convicts, as it is to guard against the physical
pestilence, which may arise from unsound and infectious
articles imported."
 Melissa Hailey 18

 Police power v. Commerce Clause cases:

• look at the statute and how it operates
• if the purpose of the statute is economic reasons 
commerce clause
• if the purpose of the statute is the health and welfare of the
citizens  police power
o Cooley v. Board of Wardens
 Facts:
• Philadelphia statute required that ships coming to port
have a Philadelphia pilot or they had to pay an extra fee
• Cooley (Defendant) was not a Philadelphia pilot but
refused to pay the fee
• Cooley argued that the statute was unconstitutional
because it was in violation of the Commerce Clause
 Issue: Whether the statute violated the Commerce Clause
 Holding - Justice Curtis
• the pilotage law did not violate the Constitution.
• Congress had provided in 1789 that state pilotage laws
should govern.
• Navigation was commerce; and, piloting was navigation.
• Though the subject to be regulated was commerce, the
interesting twist here was whether the Commerce Power
was exclusive.
• Some subjects demand a single uniform rule for the whole
nation, while others, like pilotage, demand diverse local
rules to cope with varying local conditions.
• The power of Congress was therefore selectively exclusive.
- Slavery and the Constitution
o 1641: slavery was first recognized by statutes concerning fugitive slaves in
Massachusetts, then Connecticut (1650), then Virginia (1661)
o by 1804, Vermont, Pennsylvania, Massachusetts, hode Island,
Connecticut, NY, and NJ had emancipated all their slaves
o Fugitive Slave Clause & the Enforcement Power of Congress
 The original Constitution was a compromise
• Article IV allowed slavery protection to the Southern
States, “Fugitive Slave Law”
• Article IV, Section 2 of the Constitution:
o “No person held to service or labor in one state,
under the laws thereof, escaping into another
shall, in consequence of any law or regulation
therein, be discharged from such service or labor,
but shall be delivered up on claim of the party to
whom such service or labor may be due”
 Prigg v. Penssylvania
• Facts:
o Prig is a slave catcher who went into Pennsylvania
to capture Margaret
 Melissa Hailey 19

o Pennsylvania’s law said that if you are within the

borders of the state of Pennsylvania, you’re free
o Prigg kidnapped Margaret and her children from
Pennsylvania and returned them to their slave
owner, in violation of the Pennsylvania statute
o Prigg was convicted of kidnapping
o Prigg’s argument: there is a conflict between
Article IV of the Constitution and the state
statute, and the Constitution trumps due to the
Supremecy Clause
• Issue: Whether the state-enacted fugitive slave law was
unconstitutional
• Holding: the state-enacted fugitive slave law was
unconstitutional because federal law provided the
exclusive remedy for runaway slaves
o federal law trumps state law
o the clause reflects the compromise part of the
Constitution
o Justice Story: This clause is self-executing,
meaning no additional legislation is needed by
Congress. Thus, since clause is self-executing,
one can exercise self-help
o Citizenship and the Missouri Compromise
 Missouri Compromise of 1820: prohibited slavery for all new
states nort of the 36° 30’ line, or the border of the Arkansas
territory that lay north of the slave state of Missouri
• intended to assure that for every slave state, a free state
would be admitted into the Union – thereby preserving the
political equipoise in Congress
 Dred Scott v. Sanford
• Facts:
o P (Dred Scott) is slave sold to Sanford (D) by
Emerson.
o Emerson took P from Missouri (slave state) to
Illinois (free state) and to Louisiana Territory
(free), then back to Missouri (slave).
o P argues that he becomes a free citizen by way of
his travel through Illinois and also his time in a
free territory.
• Issues:
o what was the effect of brining a slave into a free
state
o the constitutionality of the Missouri Compromise
by which Congress claimed the power to decide
whether territories were “free soil” or slave
o whether Dred Scott had standing to bring suit in
federal court
• Holdings:
 Melissa Hailey 20

o bringing a slave into a free state did not make the

slave free
o the Missouri Compromise was unconstitutional
 Upper Louisiana is made free by the
Missouri Compromise, but that means if
you bring your slave into Upper Louisiana,
you’ll be deprived of your property.
 Therefore, the Missouri Compromise is
supposedly unconstitutional under the 5th
Amendment Due Process Law. “No person
shall be deprived of life liberty or property
without due process.”
o Dred Scott did not have standing to bring suit in
federal court because he was not a citizen
 Dred Scott was a slave
 Under Articles III and IV, argued Taney, no
one but a citizen of the United States could
be a citizen of a state, and that only
Congress could confer national citizenship.
 Taney reached the conclusion that no
person descended from an American slave
had ever been a citizen for Article III
purposes.
• Arguments in favor of the Dred Scott holdings:
o definition of what a citizen is
o kind of rights he has as as a slave (he is
considered property, and property has no rights)
o look at the intent of the Constitution (if the
framers of the Constitution wished to consider
slaves as citizens, they would have included that)
o not a question of clear right and wrong
• Arguments against the Dred Scott holdings:
o foundation of the Constitution rests on Natural
rights
o our whole government is based on fundamental
natural rights
o slavery is in deregation of the natural rights and
any provision of the Constitution involving
slavery should be narrowly construed
o the argument should be that unlesst ehre is an
explicit provision preventing the court from
ruling in Scott’s favor, he should win
o if something ought to be narrowly construed, then
the person arguing that side has the burden of
proof, and unless the slave owner can prove it
falls within the exception
o Scott wasn’t a fugitive slave, he was taken there,
so if the provision is narrowly construed, he
should be free
 Melissa Hailey 21

THE CIVIL WAR

- The Constitutionality of Secession

o Background:
 Lincoln was elected President w/o receiving a single electoral vote
from a Southern State
 Upon his election, but before he took office, seven states seceded
from the Union: South Carolina, Mississippi, Florida, Alabama,
Georgia, Louisianna, and Texas
 The southern states drew up their own Constitution for the
Confederacy and seized federal facilitites, except for Ft. Sumpter
and 3 other military bases
 Ft. Sumpter was attacked byt the Confederacy, and Lincoln
ordered the other slave states to organize militias against the
Confederacy
 In response, Virginia, North Carolina, Tennessee, and Arkansas
joined the Confederacy
 Jefferson Davis was inaugurated as President of the Confederacy
in February 1861, and gave reasons for the Constitutaionality of
Secession
o Davis was for sessession:
 Melissa Hailey 22

 government rests ont eh consent of the governed and the people

have a right to alter or abolish governments when they “become
destructivce of the ends for which they were established”
 “when in the judgment of the sovereign States composing this
Confederacy, the Union has been perverted from the purposes for
which it was ordained and ceased to answer the ends for which it
was established, a peaceful appeal to the ballot box declared that,
so far as they are concerned, the Government created by that
compact should cease to exist”
 secession is merely an assertion of an inalienable right
o Lincoln was against secession:
 the seperate states are not sovereign governments
 the States only have the amount of power reserved to them
 the States only exist as a part of the Union, and have legal status
only as part of the Union, and if they break form the Union, they
do so only against law and by revolution
 a power to destroy the government itself has never been known as
a governmental power
 “whatever concerns the whole, should be confided to the whole, to
the whole government”
 The States were purchased by the Union from foreign countries,
and therefore the States should not be able to secede without
refunding
• it’s not fair that the creditors go unpaid
• its not fair that the remaining loyal states be held liable for
the debts of the seceding States
 the People formed the Union, not the states “We the People”, not
the States
 “Such will be a great lesson of peace; teaching men that what they
cannot take by an election, neither can they take it by war –
teaching all, the folly of being the beginners of a war.”
- Presidential Power in Wartime
o Power to Suspend the Writ of Habeas Corpus
 Writ of Habeas Corpus: a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be
determined whether or not that person is imprisoned lawfully and
whether or not he should be released from custody.
 Article 1, Section 9, ¶ 2: The privileges of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it
• Article 1 concerns the powers of Congress
• Section 9 of Article 1 pertains to limits on Congress’ powers
• a dispute arose over the power of the President to suspend
the writ
 Lincoln suspended the writ of habeas Corpus along the “military
line” between Philadelphia and the District of Columbia and
clamped a military occupation down upon Maryland
 Taney said Lincoln did not have the power to suspend the writ in
Ex Parte Merryman, 1961
 Melissa Hailey 23

• Facts:
o a military officer issues an order to arrest a citizen
of Maryland
o under the order, the citizen is seized as a prisoner,
taken to Fort McHenry, and kept in confinement
o a habeas corpus is served ont eh commanding
officer, requiring him to produce the prisoner
before a justice of the supreme court
o the officer answers that he is authorized by the
President to suspend the writ of heabeas corpus
at his discretion, and refuses
• Issue: whether the President has the right to spspend the
writ of habeas corpus and to delegate that discretionary
power to a military officer
• Holding: no, the President does not have the right to
suspend the writ of habeus corpus
o only Congress has the power to suspend the writ
o no where in Article 2, which describes the
executive’s power, is there any provision that
justifies the exercise of this power for the
President
o the government of the US is one of limited
powers, and neither of the branches can exercise
any of the powers of government beyond those
specified and granted
 Lincoln said he did have the power to suspend Habeas Corpus
• the Constitution says the Habeas Corpus can be suspended
in a time of rebellion
• the Constitution is silent on who can exercise the power
• the provision was made for a dangerous emergency, and
this is a dangerous emergency
• it makes no sense to have to wait for Congress to convene
to provide a remedy in the instance of an emergency
o Power to Emancipate Slaves
o Power of the Commander in Chief
- Power to Establish Military Tribunals
o Ex Parte Milligan
 Melissa Hailey 24

RECONSTRUCTION ERA

- Background:
o After Lincoln’s assignation, VP Johnson, a Tennessee Democrat was
President
o Johnson was later impeached for resisting the efforts of the Republican
Congress to “reconstruct” the South, and he escaped conviction and
removal from office by a single vote
o some Southerners organized a terrorist resistance to Reconstruction that
eventually culminated in the withdrawal of Union forces from the South
- The Thirteenth and Fourteenth Amendments
o Thirteenth Amendment:
 Amendment 13:
• Section 1: Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the US, or any
place subject to their jurisdiction
• Section 2: Congress shall have power to enfoce this article
by appropriate legislation
 Melissa Hailey 25

 Constitutionalized and legalized the Emancipation Proclimation

 Emancipation Proclimation only abolished slavery in the
confederacy
 There were slave states that did not secede, and so there were
slaves not emancipated by the Emancipation Proclimation
 The thirteenth Amendment freed all slaves
 One of the few provisions of the Constitution that directly regulate
behavior
 Applies not only on the Federal level, but the state and individual
level also
 Has an enforcement provision
 Appropriate legislation = “necessary and proper”
o Civil Rights Act of 1866:
 all persons born in the US and not subject to any foreign power are
declared citizens of the US
 all citizens, without regard to any previous condition of slavery,
shall have the same rights to:
• make and enforce contracts
• sue and be sued, be parties, and give evidence
• inherit, purchase, lease, sell hold, and convey real and
personal property
• right to full and equal benfit of all laws and proceedings for
the security of person and property
• shall be subject to like punishment, pains and penalties
 enacted over President Johnson’s veto
 there was an issue as to whether Congress had this sort of power
• it may be Unconstitutional in the sense that it may violate
State’s Rights
• In order to make sure that the Civil Rights Act was
enforceable and Constitutional, Congress passed the
Fourteenth Amendment
o Fourteenth Amendment:
 Amendment 14, Section 1:
• All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
 Three main substantive provisions:
• Priveleges and Immunities Clause
o Effected by the Slaughterhouse Cases
o Supreme Court severely limited this clause in the
Slaughterhouse Cases
o Applies mainly to state legislatures
• Due Process Clause
 Melissa Hailey 26

o Identical to the due process clause of the fifth

amendment
o Applies mainly to the Judicial Branch
• Equal Protection Clause
o Applies to law enforcement/ executive branch
o Limiting the Privileges and Immunities Clause
 Slaughterhouse Cases
• Facts:
o Louisianna’s legislature passed an act
establishing a privately owned monopoly
slaughterhouse in New Orleans
o all butchers were required to do their
slaughtering at this one location upon payment of
a fee
o a group of butchers sued the state, arguing that
the law was unconstitutional
• Butchers’ arguments:
o claim the Fourteenth Amendment rights are
violated
o Fourteenth Amendment should be interpreted
broadly
o Giving the police power regulation to a
monopolized private corporation is unreasonable
because it goes beyond safety regulation
o There is a difference between citizens of the US
and citizens of Louisianna
 Citizen of the US: born within the US or
naturalized in the US
 Citizen of a state is citizen by virtue of
residence
 State citizens are also US citizens
 The rights talked about in this clause are all
rights citizens of the US inherently have
• Slaughterhouses’ arguments:
o Fourteenth Amendment intended to protect freed
slaves
o Regulation of slaughtering animals is within their
police powers
• Issue: Whether there are two separate sets of privileges
and immunities
• Holding: Yes, there are two separate sets of privileges and
immunities
o Difference between national and state citizens
o Privileges and immunities clause did not create
additional rights
o The rights they are claiming are not part of their
state citizenship
o According to this court, the fourteenth
amendment (privileges and immunities clause)
 Melissa Hailey 27

protects privileges and immunities of national

citizenship against state action
 These do not include the right to a
calling/occupation
 This is a state privilege/immunity, not
national
• Relevance:
o Makes the privileges and immunities clause
largely irrelevant
o Two different lists of privileges and immunities

 Bradwell v. Illinois
• Facts: a female attorney was denied a license to practice
law in Illinois because she was a married woman
• Issue: Whether this law violated the privileges and
immunities clause of the 14th Amendment
• Holding: the right to pursue a legal trade or calling falls
within the province of the state’s power to regulate, and
unless they discriminate against out-of-state-ers , there is
no violation of article 4
• Reason:
o Bradwell made the same argument that the
Louisianna butchers made in that she had the
right to a lawful profession
o Court said the right to pursue a trade or calling is
something that falls within the state police power
and under the Article 2 Section 4, you only had a
right to prevent the state from discriminating
against out of state residents
o as long as the states treated in-staters and out-of-
staters the same way, Article 2, section 4 was not
violated
o Evidence of the Meaning of “Privileges and Immunities”
 There is a lot of debate about what the meaning of the Fourteenth
Amendment should be
 Beyond the text itself and the debate of Congress, other relevant
Fourteenth Amendment information may be relevant:
• Speeches/writings prior to the Civil War by
o Lincoln
o abolitionists
 because the Reconstruction Amendments
did what the Abolitionists wanted to do
 Some abolitionists believed Congress ad the
power to abolish slavery
 Fourteenth Amendment was also intended to protect and
guarantee the Bill of Rights for the States
o Limiting the Amendment to Racial Discrimination
 Background:
 Melissa Hailey 28

• The 14th Amendment is intended to protect the civil rights

of emancipated slaves from violation form the states
• Rights:
o Civil Rights (right to own property, sue and be
sued, etc.)
o Political Rights (right to run for office, etc.)
o Social Rights (commercial, organizational,
freedom of association, etc.)
o Natural Rights (protected under the Fifth
Amendment)
 US v. Cruikshank
• Facts:
o Black citizens took over the courthouse
o a party of whites tried to take it back, and killed
more than 100 black men
o the white southerners were indicted for violating
the Constitutional Rights of the decedents
• Issue: Wehther it is within the powers of Congress to
crimilize violations of the Civil Rights Act
• Holding: No, it is not within the powers of Congress to
criminalize violations of the Civil Rights Act
• Reason:
o This is a criminal act
 In order for the Federal Government to
regulate the criminal law, they have to have
jurisdiction by either a Federal Question or
an Enumerated Power
o These people were indicted for violating the
Constitutional Rights of the decedents
 violated a Constitutional/ Civil right
 this power is enumerated in the 14th
Amendment, Section 5
 enforced through the Civil Rights Act (which
Congress had the power to enact through
the 14th Amendment, Section 5)
o Court says this doesn’t fall within the powers of
Congress to criminalize violations of this act
o Barron v. Baltimore case: Bill of Rights doesn’t
apply
o Bradwell and Slaughterhouse Cases: 2 different
lists of rights/privileges/immunities for State
Citizens and Federal Citizens, and the 14th
Amendment only protects your Federal privileges
and immunities
 the people they were accused of killing were
not exercising privileges and immunities of
the Federal Citizenship, they were
exercising privileges and immunities of
State Citizenship, and those are not
 Melissa Hailey 29

protected by the Privileges and Immunities

Clause of the 14th Amendment
 Right to peaceably assemble is listed as a
privilege/immunity of state citizenship
o Other clauses in the 14th Amendment:
 Due Process and Equal Protection
 No allegation that this was a result of race
 Equal Protection and Due Process clauses
are for violations of Civil Rights by the
states, and there is no indication that there
is any governmental involvement
 Strauder v. West Virginia
• Facts:
o Strauder convicted of murder by an all-white jury
o West Virginia law said black men could not serve
on jury
o Strauder argued that this was a violation of the
Equal Protection clause of the 14th Amendment
• Issue: Whether the D was denied his Constitutional Rights
by having an all-white jury.
• Holding: Yes, D was denied his Constitutional Rights
• Reasons:
o This was a State Action where African Americans
were being prohibited from being on a jury by a
state-enacted law
o the 14th Amdnemtnd was “designed to assure to
the colored race the enjoyment of all the civil
rights that under the law are enjoyed by white
personsm, and to give to that race the protection
of the general government, in that enjoyment,
whenever it should be denied by the States”
o Justice Strong (majority): the 14th Amendment
should be construed liberally to put the emann
cipated slaves in a position of equal rights without
making distinctions between political, civil and
social rights
• Dissent:
o Equality of the protection secured extends only to
civil rights as distinguished from those which are
political
o The 14th Amendment did not make that
distinction, but lawyers at that time did
o The Amendment Does Not Extend the Bill of Rights to the States
 Presser v. Illinois
• Facts:
o Presser led workers with unloaded rifles through
Chicago to protest police violence
o he was arrested, convicted, and fined under an
Illinois law that barred perople, other than the
 Melissa Hailey 30

organized militia of the States and US troops,

from associating and going through cities with
weapons
• Issue: Whether the Illinios law was in violation of the
Second Amdnemnt of the Constitution
• Holding: No, the Illinois law was not in violation fo the
Second Amdnemnt of the Constitution because the Bill of
Rights does not extend to the States
• Reason:
o the secions of Illinois law under consideration do
not infringe the right of the people to keep and
bear arms
o the Second Amdnemnt is a limitation only upon
the power of Congress and the National
government, and not upon that of the State
o the Fourteenth Amendment’s Privileges and
Immunities Clause applies only to the privileges
and immunities of national citizenship
• If analsying this case, you would want to argue:
o Barron v. Baltimore said the Bill of Rights did
not extend to the state
o Slaughterhouse Cases said that the Priviliges and
Immunities Clause does not protect state
privileges and immunities
o First Amdnemnt says that “Congress shall make
no law”, not that the states shall make no law
o Miln asserts that the state has the power to
protect the general welfare of the public (police
power)
o Limiting the Amendment to “State Action”
 The Civil Rights Cases
• Facts:
o Congress passed the Civil Rights Act of 1975 that
provided that all persons were entitled to the full
and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns,
public conveyances on land or water, theaters,
and other places of public amusement.
o The law prohibited discrimination based on race
and color or on the basis of any previous
condition of servitude.
o These are a group of cases where African
Americans were denied accommodations and
privileges at inns, hotels, theaters, and an Opera
House
• Issue: Whether under constitutional law, the
discrimination of African-American freemen after the
passing of the Civil Rights Act of 1875, was a violation of
due process under the 14th amendment?
 Melissa Hailey 31

• Holding: No, Congress does not have the power to pass

such a law
• Reason:
o Court ruled that 14th Amendment applies just to
state and local government actions and not to
private conduct.
o “The wrongful act of an individual, unsupported
by any such authority is simply a private wrong,
or a crime of that individual; an invasion of the
rights of the injured party, it is true, whether they
affect his person, his property, or his reputation;
but if not sanctioned in some way by the State, or
done under State authority, his rights remain in
full force, and may presumably be vindicated by
resort to the laws of the State for redress.”
o The powers were reserved to the people in the
tenth amendment, and the implication of a power
to legislate in this manner is based on the
assumption that if the States are forbidden to
legislate or act in a particular way on a particular
subject, and power is conferred upon Congress
power to legislate generally upon that subject,
and not merely power to provide modes of
redress against such State legislation or action.
This assumption is certainly unsound.
o The wrongful act of an individual unsupported by
any such authority, is simply a private wrong, or a
crime of that individual. His rights remain in full
force, and may presumably be vindicated by
resort to the laws of the State for redress (this is a
tort action more or less). Let the states handle it.
o Thus an act of refusal into a public place has
nothing to do with "a badge of slavery or
involuntary servitude." The "discriminated party"
must take care of their cause of action in a state
court. It would not be feasible to make every case
based on slavery a federal case. Also, some
African-Americans enjoyed freedoms before this
Act was passed; why are they complaining now?
o Also, Congress cannot act pursuant to § 2 of the
13th Amendment because refusal to serve a person
was just an ordinary civil injury and not a badge
of slavery.
o “This is not a social decision, this is a political and
constitutional one.”
• Dissent: (Justice Harlan):
o There is no entry into the domain of state's rights
here;
o this Act is just a political manifestation of the
prevailing notion of universal freedom.
 Melissa Hailey 32

o Practicing discrimination is a badge of servitude,

as it is a constant reminder of what was, and what
shouldn't be anymore according to the law, but
still is, since the court has ruled in favor of
bowing out of the conflict.
o Furthermore, the 5th article of the 14th
amendment does not specifically reference
prohibitions on states.
o The government does not have anything to do
with social issues or social relations, but there
should be no discrimination by any member of
the States to freemen of the States for anything
having to do with their previous history.
o Facially Neutral Laws
 Facially Neutral Laws: law that looks like it’s neutral on its face,
but is not neutral in its administration or intent
• Example: Grandfather Clause: don’t have to take a literacy
test if you had a grandfather that could vote before 1865
 Yick Wo v. Hopkins
• Facts:
o California passed a law saying that you couldn’t
have a laundrymat in a wooden building
o on its face, it looks neutral
o not enforced against non chinease laundry
owners
o all of the chinease were denied
• Issue: Whether the law violated the Fourteenth
Amendment Equal Protection Clause
• Holding: Yes, the law violated the Fourteenth Amendment
Equal Protection Clause because it was applied only
against one group of people in a discriminatory manner
• Reasons:
o res ipsa loquitor: the facts speak for themselves
o would argue that the true intent of the statute was
to discriminate against chinease; the fact that the
chinease were all denied permits while the whites
all got permits, with no other reasonable
explanation, speaks for itself as to the intent of
the statute
o The “Seperate But Equal” Doctrine
 Plessy v. Ferguson
• Facts:
o Plessy, who was 7/8 white and whose skin color
was white, was denied a seat in an all white
railroad car.
o When D resisted, he was arrested for violating a
state law which provided for segregated “separate
but equal” railroad accommodations.
 Melissa Hailey 33

o D appealed the conviction on the basis that

separation of the races stigmatized blacks and
stamped them with the badge of inferiority.
o D claimed that segregation violated the
Thirteenth and Fourteenth Amendments.
o The trial court found Plessy (D) guilty on the
basis that the law was a reasonable exercise of the
state’s police powers based upon custom, usage,
and tradition in the state.
• Issue: Whether a state law segregating the races
in“separate but equal” facilities or accommodations is
Unconstitutional.
• Plessy’s Arguments:
o The intent of the framers of the Equal Protection
clause was to promise a shield against
discrimination on the basis of race or national
origin.
o The Court states that if such state-mandated
segregation “stamps the colored race with a badge
of inferiority, it is not by reason of anything found
in the act, but solely because the colored race
chooses to put that construction upon it” 
considering the history of slavery and unequal
rights, how is this argument valid (clearly colored
races been treated unequally in the past, so why
not here?)
o How does racial segregation impose no
disproportionate impact on racial minorities,
which would make it being subject to heightened
scrutiny under the Equal Protection Clause.
o Early cases involved the Equal Protection Clause
to strike down state and local laws that
discriminated against blacks.
 Strauder v. West Virginia: The court used
the clause to reverse the conviction of a
black D because state law excluded blacks
from the jury.
 Yick Wo v. Hopkins: Six years later, the
Court extended the Clause to protect the
Chinese, holding that the Fourteenth
Amendment requires equality of treatment
“without regard to any differences of race, of
color, or of nationality”
• Holding: No, a state law segregating the races in “separate
but equal” facilities or accommodations is NOT
Unconstitutional.
• Reason:
o RULE: Segregation of the races is reasonable if
based upon the established custom, usage, and
traditions of the people in the state.
 Melissa Hailey 34

o The state may segregate the races in “separate but

equal” facilities or accommodations, and this is a
valid exercise of the state’s police power.
o Where this has been the established custom,
usage, or tradition in the state, it may continue to
require such segregation as is reasonable to
preserve order and the public peace.
o Such decisions have been continuously been
upheld- This is not a badge of slavery under the
13th Amendment and it violates no provision of
the 14th Amendment.
o The enforced separation of the races is not a
badge of servitude or inferiority regardless of how
Plessy and other blacks deem to treat it.
 badges and incidents of slavery is limited
only to civil rights including the rights
property, make contracts, sue and be sued
 Further, Slaughterhouse says that 14th
Amendment only protects you from a
violation of the privileges and immunities of
Federal Government
• Dissent:
o The statute interferes with the personal freedom
of individuals to freely associate with others.
o The Constitution is color blind; all citizens should
and must be treated alike, therefore, blacks are
not subordinate or inferior beings. They are
citizens and are entitled to all of the privileges
which this entails.
o Enforced separation is an impermissible burden
on these privileges and freedoms, and, thus, the
conviction should be overturned.
o The Commerce Clause and Necessary & Proper Clause
 US v. Dewitt
• Facts:
o Congress passed a law regulating the sale of
certain oils and allowing for criminal sanctions
against ay person mixing the oils for sale at a
certain temperature
o Dewitt was indicted under this law
• Issue: Whether Congress had the power to prohibit trade
within the limits of a State?
• Holding: NO, Congress does not have the power to
prohibit trade within the limits of a State
• Reason:
o power to regulate also includes the power to
prohibit
o court says you can concede the power is plenary
and still find the statute unconstitutional
 Melissa Hailey 35

o the power of congress to regulate commerce only

relates to interstate commerce
o the right to regulate intrastate commerce falls
within the state’s police power
 Hepburn v. Griswold
• Facts:
o the Legal Tender Act was enacted to issue paper
money to finance the Civil War
o Hepbrun tried to pay a debt due to Griswold
using paper money
o Greiswold sued Hepburn and refused to accept
Hepburn’s paper money
o The court accepted the paper money and declared
her debt satisfied
o Griswold appealed
• Issue: Whether Congress has the power to make notes
issued under its authority a legal tender in payment of
debts which, when contracted, were payable by law in gold
and silver coins.
• Holding: No, Congress did not have the power to make
paper money.
• Reason:
o if you look at the Constitution, the power to coin
money implies coins/metal as opposed to paper
o reasons for limiting the power to make currency
of coins instead of paper: paper money was
valued less than the gold of the coins
o the paper value had less value because the coin
has an inherent worth/value as a commodity, but
paper does not, and people did not have faith in
the treasury/government
 Knox v. Lee: Overturned Hepburn v. Griswold
• Issue: Whether Congress had the power to tender paper
money under the Legal Tender Acts.
• Holding: Yes, Congress does have the power to tender
paper money. (overturned Hepburn)
• Reason:
o everything did not have to be totally enumerated
in the Constitution
o Constitution is a means to an end, and that end is
effective government
o Necessary and Proper
 both Hepburn and Knox talked aobut
necessary and proper
 Hepburn just focused on one provision of
the constintuion and said even if you use
necessary and proper, it doesn’t get you to
the point where paper money is okay
 Melissa Hailey 36

because paper money isn’t necessary and

proper to coin money
 Knox court says to focus on a single clause
when looking at necessary and proper is too
restrictive and you have to look at the
underlying purpose/ means to an end
 Julliard v. Greenman
• Issue: Whether Congress has the power to tender paper
money in both peacetime and wartime.
• Holding: Congress has the power to tender money, but the
legislature should decide the issue when the question of
exigency arises.
• Reasons:
o Congress has the power to tender money through
the Constitution:
 to lay and collecte taxes, to pay the debts
and provide for the common defense and
general welfare of the US
 to borrow money on the credit of the US
 to coin money and regulate the value therof
and of foreign coin
o quotes McCullogh: “where the law is not
prohibited, and is really calculated to effect any of
the objects intrusted to the government, to
undertake here to inquire into the degree of its
necessity would be to pass the line which
circumscribes the judicial department, and to
tread on legislative ground”

THE PROGRESSIVE ERA

 Melissa Hailey 37

- Background:
o the Framers thought that government was a “necessary evil” and that the
Federal Government needed more monitoring and regulation
o the Progressives thought that government was your friend, and that the
states needed more monitoring and regulation
- The Commerce Clause and Necessary & Proper Clause
o US v. EC Knight Co.
 Facts:
• The Congress passed the Sherman Anti-Trust Act in 1890
as a response to the public concern in the growth of giant
combinations controlling tranportation, industry, and
commerce.
• The Act aimed to stop the concentration of wealth and
economic power in the hands of the few.
• It outlawed "every contract, combination...or conspiracy, in
restraint of trade" or interstate commerce, and it declared
every attempt to monopolize any part of trade or
commerce to be illegal.
• The E.C. Knight Company was such a combination
controlling over 98 percent of the sugar-refining business
in the United States.
 Issue: Whether Congress exceeded its constitutional authority
under the Commerce Clause when it enacted the Sherman Anti-
Trust Act.
 Holding: The Anti-Trust Act was Constitutional, but it did not
apply to Manufacturing
 Reason:
• “the result of the transaction was the creation of a
monopoly in the manufacture of a necessary of life" but
ruled that it "could not be suppressed under the provisions
of the act".
• manufacturing—in this case, refining—was a local activity
not subject to congressional regulation of interstate
commerce.
• That which belongs to commerce is within the jurisdiction
of the United States, but that which does not belong to
commerce is within the jurisdiction of the police power of
the State. . . . Doubtless the power to control the
manufacture of a given thing involves in a certain sense the
control of its disposition, but . . . affects it only incidentally
and indirectly.
• Under the Knight decision, any action against
manufacturing combinations would need to be taken by
individual states, making such regulation more difficult
o Champion v. Ames
 Facts: The defendants in the case were arrested and convicted
under an Act of Congress of 1895 that made it illegal to send or
conspire to send lottery tickets across state lines.
 Melissa Hailey 38

 Issue: Whether the transport of lottery tickets by independent

carriers constitute "commerce" that Congress could regulate under
the Commerce Clause?
 Holding: Yes, lottery tickets were "subjects of traffic," and that
independent carriers may be regulated under the Commerce
Clause.
 Reason:
• The Court emphasized the broad discretion Congress
enjoys in regulating commerce, noting that this power "is
plenary, is complete in itself, and is subject to no
limitations except such as may be found in the
Constitution."
• Congress was merely assisting those states that wished to
protect public morals by prohibiting lotteries within their
borders.
o Hammer v. Dagenhart
 Facts:
• The Keating-Owen Child Labor Act prohibited the
interstate shipment of goods produced by child labor.
• Reuben Dagenhart's father had sued on behalf of his
freedom to allow his fourteen year old son to work in a
textile mill.
 Issue: Whether the Child Labor Act violates the Commerce
Clause, Fifth Amendment, or Tenth Amendment.
 Holding: Yes, it did violate the Commerce Clause
 Reason:
• two grounds to invalidate the law:
o Production was not commerce, and thus outside
the power of Congress to regulate.
o the regulation of production was reserved by the
Tenth Amendment to the states.
• "the powers not expressly delegated to the national
government are reserved" to the states and to the people.
• In his wording, Day revised the Constitution slightly and
changed the intent of the framers: The Tenth Amendment
does not say "expressly." The framers purposely left the
word expressly out of the amendment because they
believed they could not possibly specify every power that
might be needed in the future to run the government.
- Due Process Clause
o Background:
 Due Process Clause came to be more important in the Progressive
era
 in the fourteenth amendment and the fifth amendment (2 Due
Process Clauses)
• two because some believed that the Bill of Rights only
regulated the Federal Government
• the Due Process Clause in the fifth Amendment regulated
Federal Government
 Melissa Hailey 39

o cannot violate ones life, liberty or property

without due process
• the Due Process Clause in the fourteenth Amendment
regulated State and Local governments
o liberties are in the Bill of Rights
o summarize that by saying the Due Process Clause
of the Fourteenth Amendment incorporates the
Bill of Rights
 are there natural rights?
• “ordered liberty” theory of the meaning of the Due Process
Clause
• are there liberties not in the Bill of Rights that are
protected by the Due Process Clause?
o Chicago, Burlington & Quincy Railroad Co. v. Chicago
 Facts:
• City ordinance said that certain parcels of land would be
condemned to widen streets
• in the condemnation proceeding, the jury fixed one dollar
as just compensation to the railroad company for their land
• the railroad company moved for a new trial, claiming that:
o the staute was contrary to the fourteenth
amdnment, declaring that no state hall deprive
any person of property without due process of law
or equal protectionj
• railroad did not sue under the takings clause of the Fifth
Amendment because Baron v. Baltimore said that you
can’t sue the city under the fifth amendment takings clause
because the fifth amendment only applies to the federal
government, so they sued under the fourteenth
amendment due process clause
 Issue: Whether the due process of law enjoined by the fourteenth
amendment requires compensation to be made or adequately
secured to the owner of private property taken for public use
under the authority of a state.
 Holding: Yes, the due process of law enjoined by the fourteenth
amendment DOES require compensation to be made or
adequately secured to the owner of private property taken for
public use under the authority of a state.
 Reason:
• The railroad was deprived of their property without due
process/just compensation
• being denied property without due process covers not
getting just compensation
• A corporation is a person
o can sue under the provisions of the Fourteenth
Amendment
o the Due Process clause protects “persons”
o privileges and immunities clause protect
“citizens”
 Melissa Hailey 40

o the other provisions protect “persons”

o citizens is a narrower category
o a corporation can’t vote, so a corporation is a
person, but not citizen
o a corporation, therefore, cannot sue under the
privileges and immunities clause, but can sue
under the Due Process clause
o Lochner v. NY
 One of the most hated cases in Constitutional Law
 Facts:
• Lochner an employer in the business of making biscuits,
bread, cakes, or confections, required or permitted an
employee to work more than sixty hours in one week.
• N.Y. labor law declares that is an illegal act to
allow/require an employee to work more than 10 per day
or 60 week.
 Issue: Whether the Act relates to the safety, health, morals, and
general welfare of the public under the police powers or whether it
prohibits the right of employers/ees from voluntarily entering into
contracts, in violation of the 14th?
 Holding: The Act violated the Baker’s 14th Amdemendment right
to contract
• Reason:
o The right to make a contract in relation to
business is part of the liberty of the individual
protected by the 14th Amendment.
 the right to contract is not in the fourteenth
amendment
 the right to contract is not listed int eh Bill
of Rights
 right to contract is a protected liberty in the
Bill of Rights because it is:
• civil right that a free person has
o The 14th may not interfere with legitimate state
police powers.
o The court may only decide whether the act is a
legitimate police power of the state.
o If the act made no reference whatever to the
question of health, it would involve no interest of
the public, neither safety, nor welfare of the
public.
o The limit of police power has been reached and
passed in this case.
o The character of this law and the subject it
legislates is not intended to preserve public health
and welfare. The purpose of this statute has no
direct relation or substantial effect upon the
health of an employee. It only seeks to regulate
 Melissa Hailey 41

the hours of labor between an employee and an

employer, in a private business.
o The freedom to contract with each other in
relation to employment cannot be prohibited or
interfered with, without violating the
Constitution.
• Dissents:
o factual: being a baker is a dangerous occupation
and it is still within the state’s power to regulate
o Holmes: liberty to contract is not in the
Constitution; whole notion of liberty to contract
did not come from the framers or the text of the
Constitution but from the argument of social
Darwinism
 freedom of contract assumes that everyone
in society has equal bargaining power
 this is not true
 argument in favor of regulation is not health
and safety but that if there is inequality of
bargaining power between the two parties,
there is not a free exchange
o Muller v. Oregon
 Facts: there was a statute regulating the maximum amount of
hours women could work
 Issue: Whether the statute regulating the maximum amount of
hours women could work was Unconstitutional.
 Holding: The statute was Constitutional
 Reason:
• court did not follow Lochner and strike down the statute
• court differentiated between women and men
• this was similar to Bradwell sexist opinion
• because of the women’s physical structure and the
performance of maternal functions, this falls within the
state’s police power to regulate the health and safety of its
citizens
o Adkins v. Children’s Hospital of DC
 overturned Muller
 Facts: a statute provided for the fixing of minimum wages for
women and children
 Issue: Whether the statute providing for the fixing of minimum
wages was Unconstitutional.
 Holding: Yes, the statute was unconstitutional in violation of the
right to contract.
 Reason:
• the 19th Amendment gave women the right to vote
(between the Muller decisions and Adkins decisions)
o court should protect those that can’t protect
themselves
 Melissa Hailey 42

o in a democracy, you protect yourself by political

organization (voting)
o if you cannot vote, you cannot protect yourself
o At the time of Muller (1908) women couldn’t
vote, so it was the court’s responsibility to protect
them
o at the time of Adkins (1923), they could vote, so
the court no longer needed to regulate to protect
them
• upholding the statute would dangerously extend the police
power of the state
o the freedom of individuals to make contracts is
not absolute and curtailments of this right may be
justified in the face of "exceptional
circumstances."
o However, in this case, the statute's
implementation procedures were overly vague
and did not act to regulate the character or
method of wage payments, or the conditions and
hours of labor, areas in which regulation to
protect the public welfare were legitimate. The
Congress simply had enacted a "price-fixing law.
o Meyer v. State of Nebraska
 Facts:
• 1923: during World War I
• Nebraska, along with other states, prohibited the teaching
of modern foreign languages to grade school children.
• Meyer, who taught German in a Lutheran school, was
convicted under this law.
 Issue: Whether the statute violated the 14th Amendment Due
Process Clause
 Holding: YES, the statute violated the 14th Amendment Due
Process Clause
 Reason:
• Nebraska violated the liberty protected by due process of
the Fourteenth Amendment.
• Liberty means more than freedom from bodily restraint.
• State regulation of liberty must be reasonably related to a
proper state objective.
• The legislature's view of reasonableness was subject to
supervision by the courts.
• The legislative purpose of the law was to promote
assimilation and civic development. But these purposes
were not adequate to justify interfering with Meyer's
liberty to teach or the liberty of parents to employ him
during a "time of peace and domestic tranquillity."
• the law was really motivated by prejudice of Germans
o Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary
 Facts:
 Melissa Hailey 43

• The Compulsory Education Act of 1922 required parents or

guardians to send children between the ages of eight and
sixteen to public school in the district where the children
resided.
• The Society of Sisters was an Oregon corporation which
facilitated care for orphans, educated youths, and
established and maintained academies or schools.
 Issue: Whether this law violated the Fourteenth Amendment’s
Due Process Clause
 Holding: YES, this law violated the Due Process Clause
 Reason:
• violates the substantive due process rights of parents to
educate their children as they wsee fit
• police power is limited by substantive due process rights
• the law was really motivated by prejudice against Catholics
o The Means/Ends relationship in McCullogh is to ensure that the stated
goals of the statutes are not to reach other goals
o Substantive v. Procedural Due Process
 there are 2 kinds of Due Process
 Railroad case: they got a hearing (procedural) but rights were
violated because they got an unfair result (substantive)
 procedural: got denied a procedural process
 substantinve: got an unfair/substantive result
 lawyers overlook the literal meaning of terms sometimes
- The Thirteenth Amendment
o Southern States tried to get as close to slavery as they could in regards to
the employment of African Americans
o Bailey v. State of Alabama
 Facts:
• Bailey contracted to work on a farm for a year at $12 a
month.
• He quit after a month and did not return $15 advanced to
him.
• Under Alabama law, Bailey's act was criminal.
• He was convicted and sentenced to 136 days of hard labor
under the Alabama peonage law.
 Issue: Whether the sanction of hard labor was in violation of the
Thirteenth Amendment.
 Holding: YES, hard labor was involuntary servitude in violation of
the Thirteenth Amendment.
 Reason:
• the thirteenth amendment is involved because this is
involuntary servitude; indentured servitude
• peonage falls under the thirteenth amendment because it’s
close to slavery
• 13th amendment was to abolish slavery and abolish the
“incidents and badges” of slavery
 Melissa Hailey 44

• Judged by its effect and not by its pretense, the law

violated the Thirteenth Amendment
o US v. Reynolds
 Facts:
• Rivers was convicted of larceny and entered into a written
K with Reynolds, who payed his bond, to work as a
farmhand to pay the amount of fine and costs
• Rivers quit work before the debt was paid
• Rivers was arrested, convicted and fined for violating his
contract
• Rivers then made a similar K with Broughton
 Issue: Whether the labor of the convict amounted to involuntary
service for the liquidation of a debt.
 Holding: Yes, the labor was an involuntary service, in violation of
the Thirteenth Amendment.
 Reason:
• the State may impose fines and penalties that must be
worked out for the benefit of the State, but cannot enforce
a K between a surety and a convict that requires, under the
pain of recurring porsecutions, the convict to be kept at
labor to satisfy the damnds of his employer
• this is in violation of the rights intended to be secured by
the 13th Amendment as well as in violation of statutes
Congress enacted for the pruopse of effecting the 13th
Amendment
- The Fourth Amendment
o Weeks v. US
 Facts:
• Police entered the home of Fremont Weeks and seized
papers which were used to convict him of transporting
lottery tickets through the mail.
• This was done without a search warrant.
• Weeks took action against the police and petitioned for the
return of his private possessions.
 Issue: Whether seizure of items from D’s home violated his
Constitutional Rights.
 Holding: The seizure of items from Weeks' residence directly
violated his constitutional rights, and the government's refusal to
return Weeks' possessions violated the Fourth Amendment.
 Reason:
• To allow private documents to be seized and then held as
evidence against citizens would have meant that the
protection of the Fourth Amendment declaring the right to
be secure against such searches and seizures would be of
no value whatsoever.
• This was the first application of what eventually became
known as the "exclusionary rule"
- The First Amendment
 Melissa Hailey 45

o Schneck v. US
 Facts:
• During World War I, Schenck mailed circulars to draftees.
• The circulars suggested that the draft was a monstrous
wrong motivated by the capitalist system and urged "Do
not submit to intimidation" but advised only peaceful
action such as petitioning to repeal the Conscription Act.
• Schenck was charged with conspiracy to violate the
Espionage Act by attempting to cause insubordination in
the military and to obstruct recruitment.
• Espionage Act: act passed to bring criminal charges
against those whowere opposing the war effort (similar to
the Sedition Act)
 Issue: Whether Schenck’s actions, words, and expressions were
protected by the free speech clause of the First Amendment
 Holding: Schenck’s actions, words, and expressions were not
protected by the free speech clause of the First Amendment
because the free speech clause does not protect words used in such
circumstances and of such nature as to create a clear and present
danger that they will bring about the substantive evils that
Congress has a right to prevent
 Reason:
• The character of every act depends on the circumstances.
• During wartime, utterances tolerable in peacetime can be
punished.
• Issue of proximity and degree
o Debs v. US
o Abrams v. US
 Facts:
• The defendants were convicted on the basis of two leaflets
they printed and threw from windows of a building that
denounced the sending of American troops to Russia and
denounced the war and US efforts to impede the Russian
Revolution.
• The defendants were charged and convicted for inciting
resistance to the war effort and for urging curtailment of
production of essential war material and were sentenced to
20 years in prison.
 Issue: Whether the Amendments to the Espoinage Act or the
application of those amendments violated the free speech clause of
the First Amendment
 Holding: No, the Espionage Act did not violate the free speech
clause.
 Reason:
• the leaflets are an appeal to violent revolution, a call for a
general strike, and an attempt to curtail production of
munitions.
• The leaflets had a tendency to encourage war resistance
and to curtail war production.
 Melissa Hailey 46

 Dissent: Brandies and Holmes

• The necessary intent was not shown
• On the facts of the case, the pamphlets did not present a
clear and present danger
• In “the free market of ideas”, the truth will come out and
the best argument will win, even if it is an “Un-American”
idea
o Gitlow v. NY
 Facts:
• Gitlow, a socialist, was arrested for distributing copies of a
"left-wing manifesto" that called for the establishment of
socialism through strikes and class action of any form.
• Gitlow was convicted under a state criminal anarchy law,
which punished advocating the overthrow of the
government by force.
• At his trial, Gitlow argued that since there was no resulting
action flowing from the manifesto's publication, the statute
penalized utterences without propensity to incitement of
concrete action.
• The New York courts had decided that anyone who
advocated the doctrine of violent revolution violated the
law.
 Issue: Whether the state criminal anarchy law was an
unconstitutional violation of the free speech clause of the First
Amendment
 Holding: D’s First Amendment Rights were not violated if the
State legislature determines that the tendency or natural effect of
what he did would have a danger on the government
 Reason:
• The First Amendment free speech rights are incorporated
to apply against the states by the Due Process Clause of the
Foruteenth Amdnemtn
• Dangerous Tendency Test: On the merits, a state may
forbid both speech and publication if they have a tendency
to result in action dangerous to public security, even
though such utterances create no clear and present danger.
• The legislature may decide that an entire class of speech is
so dangerous that it should be prohibited. Those legislative
decisions will be upheld if not unreasonable, and the
defendant will be punished even if her speech created no
danger at all.
• This is a step back from Abrams because whether it’s a
clear and present danger is determined by a case-by-case
basis, but if the legislature is determining, it’s across the
board before the act occurs, and a case-by-case basis will
protect more individuals’ rights
o Stromberg v. CA
 Melissa Hailey 47

THE NEW DEAL COURT

- The Contracts Clause

o Home Building & Loan Association v. Blaisdell
 Facts:
• In 1933, Minnesota enacted the Mortgage Moratorium Law
in an effort to combat the economic emergency posed by
the Great Depression.
• The law extended the time period in which borrowers
could pay back their debts on property to lenders.
• The state argued that this was a legitimate use of its police
powers since Minnesota faced massive economic
difficulties.
 Issue: Whether the Mortgage Moratorium Law violated Article 1,
Section 10 of the Constitution which prevents a State from
“impairing the Obligation of Contracts” and the due process and
equal protection clauses of the Fourteenth Amendments.
 Holding: The law was not Unconsitttional because if the
relationship of emergency to constitutional power.
 Reason:
• The Great Depression was a dire situation
• There is still compensation given, so it is not a taking
• It’s reasonable because it’s temporary
• No mortgage holder was deprived of anything because
debts weren’t reduced, the payment plans were merely
extended for two years
• MOST IMPORTANTLY: the legitimate ends were met
o McCullogh: “let the ends be legitimate and the
means be reaosanble”
o Reasoanble is an easy standard to meet
 Context and fact-dependent test
• Supremecy Clause: the federal power (Constitution)
trumps the state power (police power)
 Melissa Hailey 48

o also, state gave away their power to impair the

contracts when you ratified the Constitution
o that argument did not win here
- The Due Process Clause
o The Presumption of Constitutionality
 In a Constitutional case, the Plaintiff has to prove that the statute
is unconstitutional
 There is a presumption of Constitutionality
 if the state’s regulation is a reasonable regulation, it’s
Constitutional
 are the means reasonable?
 when you think the statute is fraud, it’s a pretext (McCullogh)
 O’Gorman & Young, Inc. v. Hartford Fire Insurance Co
• Facts:
o One of the last liberty of contract cases, it
involved a New Jersey statute regulating the fees
paid to local agents by insurance companies.
o The statute was challenged as a violation of the
Fourteenth Amendment's Due Process Clause.
o This statute is a due process violation due to
Lochner, the parties do not have the freedom to
contract as they wish
o The relation between the police power of the state
versus the limitation on that police power due to
constitutional rights
• Holding:
o That the presumption of constitutionality must
prevail in the absence of some factual foundation
of record for overthrowing the statute” (p. 258).
o legislative judgment must prevail unless it could
be demonstrated that the measure was utterly
arbitrary. No such demonstration had been made.
o The business of insurance is so far affected with a
public interest that the state may regulate the
rates as a subject clearly within the scope of the
police power.
o The Court should cease using the Due Process
Clause in a “substantive” manner to second guess
the legislature
o There is a presumption of constitutionality
o If the end is legitimate and the means are
reasonable, then the statute is
constitutional
o Show that the statute is a rational way of
achieving the end that they are going for cannot
be a pretext, like in McCollach
• Dissent:
o The four dissenters vigorously propounded
freedom of contract, restrictive alteration of the
 Melissa Hailey 49

public interest doctrine, and the pressing

obligation to check any legislative interference
with property.
o Objected to the idea that the right to regulate
business implied the power to trespass on the
duties of private management.
o The majority opinion, however, made clear that
the constitutionality of state regulation of the
economy should no longer turn on the question of
its unreasonableness.
 Nebbia v. NY
• Facts:
o In 1933, the state of New York established a Milk
Control Board that was empowered to set
maximum and minimum retail prices.
o The Board set the price of a quart of milk to
reflect the then-current market price, and the
purpose of this order was to prevent price-
cutting.
o the public suspected that the Board’s intent was
to benefit the dairy dealers instead of farmers
because the minimum prices for the two sides
were not the same.
o Every public hearing of the Milk Control Board
resulted in a "tumultuous, popular assemblage"
and its every action was "Statewide news."
o Nebbia, the owner of a grocery store, was found
guilty of violating the price regulations, and was
fined five dollars.
o Nebbia challenged the conviction, arguing that
the statute and order violated the Equal
Protection Clause and Due Process Clause of the
Fourteenth Amendment
o Nebbia used Lochner argument, stating that his
right to freely contract was violated; therefore, he
should be able to undersell competitors for
business purposes, not due to a regulation
• Issue: Whether the milk law violated the Equal Protection
Clause and Due Process Clause of the Fourteenth
Amendment.
• Holding: No, the law did not violate the Equal Protection
Clause or Due Process Clause of the Fourteenth
Amendment because the law was within the state’s police
power.
• Reason:
o Although use of property and making of contracts
are typically private matters and thus remain free
of government interference, “neither property
rights nor contract rights are absolute”
 Melissa Hailey 50

 Occasional regulation by the state is

requisite for proper government function,
especially in instances where such
regulation is used to promote general
welfare.
o Neither the Fifth nor the Fourteenth
Amendments prohibit governmental regulation
for the public welfare
 they only direct the process by which such
regulation occurs.
Such due process “demands only that the
law shall not be unreasonable, arbitrary, or
capricious, and that the means selected shall
have a real and substantial relation to the
object sought to be attained.”
o The Milk Control Board was well aware of the
insufficiency of regular laws of supply and
demand to correct the issues with milk prices,
“the order appears not to be unreasonable or
arbitrary.”
o In absence of other constitutional restrictions, a
state may adopt an economic policy that can
reasonably be said to promote public welfare, and
enforce such policy by appropriate legislation.
 Courts have no authority to create such
policy or to strike it down when it has been
properly enacted by the legislature
 West Coast Hotel Co. V. Parrish
• Facts:
o Parrish, a chambermaid at the hotel sued the
hotel for the difference between what she was
paid, and the $14.50 per week of 48 hours
established as a minimum wage by the Industrial
Welfare Committee and Supervisor of Women in
Industry, pursuant to State law.
o The Washington State Supreme Court found in
favor of Parrish, and the hotel appealed.
• Issue: Whether the minimum wage law violated the liberty
of contract as construed under the Fifth Amendment as
applied by the Fourteenth Amendment?
• Holding: No, the minimum wage law did NOT violate the
liberty of contract and it WAS constitutional.
• Reasons:
o Supreme Court upheld the constitutionality of
minimum wage legislation enacted by the state of
Washington, overturning Adkins
o Parrish found that the exercise of the police
power need only be reasonable, and, therefore,
the police power is reasonable because women
 Melissa Hailey 51

were in an unfair bargaining position for

employees and employers
 reached the same decision as Muller,
but for very different reasons
o This case argued that the freedom of
contract is not unlimited
o Exercise of the police power needs only be
reasonable
o It is reasonable in this case because the
women were in unequal bargaining power
o It was promoting fairness and equality in
the employer/employee relationship
• Dissent – Justice Sutherland
o the Constitution does not change by events alone
(namely, the Great Depression).
o Freedom of contract was the rule with few
exceptions, and that the shift of the burden for the
poor onto employers was an arbitrary and naked
exercise of power.
• The majority's view on economic regulation remains the
law of the land today, but the expansion of Commerce
Clause jurisprudence signaled by West Coast Hotel was
reined in slightly by United States v. Lopez (1995), and
United States v. Morrison (2000)
- Qualifying the Presumption of Constitutionality
o US v. Carolene Products Co.
 Facts: This case dealt with a statute that regulated the production
of skim milk (which was not considered as healthy in the 1930s)
 Issue: Whether the filled mild act violated their Fifth Amendment
Due Process Rights
 Holding: The law did not violate their Fifth Amendment Due
Process rights because the law was supported by substantial health
evidence and was not arbitrary or irrational.
 Reason:
• Due Process:
o The Fourteenth Amendment protects citizens
from violations against the states
o The Fifth Amendment protects persons from
violations of the federal government
o This case involves violation of freedom to contract
o The regulations need only be reasonable to be
constitutional, and the ends legitimate
o Court finds that the regulation is reasonable.
• The end legitimate because it’s for
the health of the citizens
• the court holds that the means are
appropriate to the end.
• Presumption of Constitutionality
 Melissa Hailey 52

o Statute is presumed constitutional, unless the D

has a valid due process argument; don’t even
need to get to the commerce issue
• Footnote 4
o this case is so important/famous because of
Footnote 4
o so far we have been saying that due process
challenges only have to pass a test of
reasonableness
o There are three exceptions that subject it to
higher scrutiny:
 violates one of the bill of rights
 legislation which restricts political
processes which can ordinarily be expected
to bring about repeal of undesirable
legislation
 statutes directed at regulations that
discriminate against discrete and insular
minorities
• because it’s difficult for these
minorities to get the discrimination
undone
• in our system of government, lots of
groups get favorable legislation
 United Public Workers v. Mitchell
• Facts: The federal employees sued to enjoin the Hatch Act
of 1939, which prohibited federal executive branch
employees from engaging in politics
o The employees' boss had told them that they
could not participate in political campaigns
without being fired, leading the employees to file
suit.
o The U.S. Supreme Court awarded standing to one
plaintiff who had actually been threatened with
termination; the other employees had not faced
such a direct threat, and their cases were
dismissed for lack of ripeness.
• Issue: Whether the Hatch Act violated the Ninth
Amendment rights.
• Holding: No, the Hatch Act did not vilate the Ninth
Amendment rights, and a group of federal workers could
not block enforcement of a law that created only the
possibility of a threat to Ninth Amendment rights.
• Reason:
o the fundamental human rights are not abolsutes
o Court must balance the extent of the guarantees of
freedom against a congressional enactment to
protec a democratic society against the supposed
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evil of political partisanship by classified

employees of government
 Does the fact that a state might regulate in an area mean
that the federal government cannot?
• No, there must simply be an enumerated or implied power
for the federal government
• This is kind of like an easement of necessity
o just because they could share it doesn’t mean the
court will find that there is an easement
- The Commerce and Necessary & Proper Clauses
o Commerce:
 Commerce works in conjunction with “necessary and proper
clause”
 The court distinguished commerce from navigation and
manufacturing
• the distinction is not enough to say that the feds cannot
regulate commerce
 Affect doctrine: As long as an act is affecting commerce, then it
is within the power of the federal government to regulate
 It is deemed necessary and proper for the government to do so
 The government is arguing that it still has the power to regulate
something that is outside the enumerated powers because the act
in essence is affecting the commerce in order to regulate
commerce, you need to have the power to regulate everything that
substantially affects it
o The Substantial Effects Docrine
 NLRB v. Jones & Laughlin Steele Company
• Facts:
o With the National Labor Relations Act of 1935,
Congress determined that labor-management
disputes were directly related to the flow of
interstate commerce and, thus, could be regulated
by the national government.
o In this case, the National Labor Relations Board
charged the Jones & Laughlin Steel Co. with
discriminating against employees who were union
members.
• Issue: Whether the Act was consistent with the Commerce
Clause
• Holding: Yes the Act was consistent with the Commerce
Clause because it was narrowly constructed so as to
regulate industrial activities which had the potential to
restrict interstate commerce.
• Reason:
o tenth amendment argument: those powers not
expressly provided for the Federal Gov. in the
Constitution are states rights
 all a regulation has to do to be regulated by
the federal gov. is to fall within an
 Melissa Hailey 54

enumerated power or an implied power

(necessary and proper)
 just because it could fall within the State’s
police power doesn’t mean it cannot be
regulated by the federal gov.
o is not enough to say that it does not fall under
Commerce Power, must look at whether it effects
commerce
 it doesn’t have to be commerce, it has to
have an effect on interstate Commerce in
order to fall under the Commerce Power
 Feds win because regulating union activity,
which is not commerce itself, is something
that is necessary and proper to regulate
commerce
o Court rejects Hammer argument (it’s
unconstitutional because of it’s purpose) because
the Federal power is plenary, so they’re not going
to look at the purpose
 US v. Darby
• Facts:
o In 1938, Congress passed the Fair Labor
Standards Act to regulate many aspects of
employment including minimum wages,
maximum weekly hours, and child labor.
o Corporations which engaged in interstate
commerce or produced goods which were sold in
other states were punished for violating the
statute.
• Issue: Whether the Act was a legitimate exercise of
Congress’ power to regulate interstate commerce
• Holding: Yes, the Act was a legitimate exercise of Congress’
power to regulate interstate commerce because the right of
Congress to exercise "to its utmost extent" the powers
reserved for it in the Commerce Clause
• Effect: overturned several longstanding precedents,
notably Hammer v. Dagenhart (1918).
• Reason:
o Act was a minimum wage/maximum hours law
o court held in 1937 that the law is NOT
unconstitutional because the wages people are
given and the hours they work have a substantial
effect on interstate commerce
o Congress is allowed to regulate it even if the
purpose is not economic, but social
o the power is plenary, so you don’t need to get into
question of whether it’s a pretext or not
 Relying heavily on the Court's decision in
Gibbons v. Ogden (1824), Justice Stone
 Melissa Hailey 55

argued that the "motive and purpose of a

regulation of interstate commerce are
matters for the legislative judgment . . . over
which the courts are given no control."
o The Aggregation Principle
 Wickard v. Filburn
• Facts:
o Filburn was a small farmer in Ohio.
o He was given a wheat acreage allotment of 11.1
acres under a Department of Agriculture directive
which authorized the government to set
production quotas for wheat.
o Filburn harvested nearly 12 acres of wheat above
his allotment.
o He claimed that he wanted the wheat for use on
his farm, including feed for his poultry and
livestock.
o Fiburn was penalized.
o He argued that the excess wheat was unrelated to
commerce since he grew it for his own use.
• Issue: Whether the law subjecting Filburn to acreage
restrictions was violation of the Constitution because
Congress has no power to regulate activities local in nature
• Holding: The law was NOT in violation of the Constitution
because of the aggregation doctrine.
• Reason:
o farmer’s argument: no economic transaction if
the wheat never left the farm or the wheat got
bought or sold, so it’s not under the Commerce
Clause
o gov. argues that it still effects commerce because
if he didn’t grow his own wheat, he would be in
the market buying it
o Aggregation Doctrine: don’t look at just the
individual in the instant case, but look at the
whole classification and ask if the whole class
substantially effects interstate commerce
o in this case, Filburn did not have a substantial
effect on interstate commerce, but if the entire
class of farmers did this, they, as a class, would
have a substantial effect on commerce
- The War Power
o Historically: Beginning of World War One
o Ex Parte Quirin
 Facts:
• All plaintiffs were born in Germany and all had lived in the
United States.
• All returned to Germany between 1933 and 1941.
 Melissa Hailey 56

• After the declaration of war, they received training at a

sabotage school near Berlin
• Captured in the US as prisoners of war
• Quirin is a US Citizen and is claiming he should get a jury
trial
• Instead, he’s being put in front of a military tribunal as an
unlawful combatant
 Issue: Whether Quirin is entitled to a trial by jury, pursuant to his
Constitutional rights as a citizen.
 Holding: No, Quirin is NOT entitled to a trial by jury because the
President has the executive power to enforce the laws.
 Reason:
• Court’s Opinion grants sweeping powers to the President.
o (1) the President has the inherent authority to
create military tribunals
o (2) this authority could not be regulated by
Congress, and
o (3) this power was by virtue of the President’s
power as commander in chief.
• Milligan and Quirin are consistent in law, but they draw a
line
o Milligan was a citizen of Indiana, Indiana was not
involved in the secession
o the Civil War was going on
o government wins on the Milligan issue because
there was a war going on and there was a need at
that place
• Justice Jackson ultimately believed it was a mistake for the
Court to review military judgments in times of war and he
solidifies this position in his dissent in Korematsu .
o Japanese Internment Cases:
 these cases are racist!
 in the same category as Dred Scott as far as reviled cases
 set up a standard for suspect racial classifications
• Hirabayashi v. US
o Facts:
 After the bombing of Pearl Harbor, Anti-
Japanese sentiment at that time
 President and Congress passed curfew and
exclusionary laws
 The defendant, Hirabayashi, was a
University of Washington student.
 Hirabayashi was convicted of violating a
curfew and relocation order, and his appeal
of this conviction reached the Supreme
Court.
o Issue: Whether the particular curfew order
directed against Americans was unconstitutional
 Melissa Hailey 57

because it was in violation of the Fifth

Amendment
o Holding: The application of curfews against
members of a minority group were constitutional
when the nation was at war with the country from
which that group originated.
o later overturned
• Korematsu v. US
o Facts:
 Executive Order 9066 gave authority to
exclude any persons from areas on the west
coast in order to insure against sabotage.
 Under this authority, everyone of Japanese
ancestry was moved from their homes on the
West Coast to “relocation centers”.
o Issue: Whether the forced relocation, applied
only to those of Japanese ancestry, violated the
Equal Protection Clause
o Holding: No, the forced relocation did not violate
the Equal Protection Clause because it was
justified by pressing public necessity.
o Reason:
 Evidentiary rule that favors the government:
presumption of Constitutionality
• the law and action are presumed to
be Constitutional unless the P can
prove it’s unconstitutional
• the burden is on the P (person
claiming their rights have been
denied) to prove that something is
wrong
• Typical of the New Deal Era
• In this case, the P couldn’t prove that
he was a loyal citizen, so the
Government gets the presumption of
Constitutionality
 HOWEVER, In a case like this, would apply
the standards in Footnote 4 of Caroline
Milk
• when racial minorities are the
subject of prejudice
o the Japanese would fall into
this category, especially at
this time
• violation of the Bill of Rights
o freedom of religion
• main difference between the way
equal protection works today with
regard to discrimination against
 Melissa Hailey 58

minorities is that the presumption of

constitutionality doesn’t apply in
those situations
 All legal restrictions which restrict rights of
a racial group are immediately suspect.
They are subject to the most rigid scrutiny,
but sometimes pressing public necessity can
justify the existence of such restrictions.
 Exclusion of people of Japanese ancestry
from the west coast when we are in a war
with Japan has a definite and close
relationship to the prevention of sabotage.
o Dissents:
 Murphey dissent: This majority opinion
upholding the rationality of excluding all
persons of Japanese descent for purposes of
preventing sabotage must necessarily rely
on the assumption that all persons of
Japanese descent have a tendency for
sabotage. In this case, there is no question
about P’s loyalty to the US. How is it
rational to relocate him? Further, not one
person of Japanese ancestry was ever
convicted of sabotage.
 Jackson dissent: The court has no way of
knowing that the law has a reasonable
basis in necessity. Doesn’t want to make a
decision about how necessary the law is. Is
worried that once the Court sanctions such a
law allowing racial discrimination, this will
bring problems in the future.
• Ex Parte Endo
o Facts:
 Endo, the plaintiff in the case, was
evacuated from Sacramento, California, in
1942, pursuant to Executive Order 9066 and
was removed to the Tule Lake War
Relocation Center located in Modoc County,
California.
 In July, 1942, she filed a petition for a writ
of habeas corpus (in general claiming you’re
wrongfully detained and asking to be
released) asking that she be discharged and
restored to liberty.
 That petition was denied and an appeal was
perfected to the United States Court of
Appeals for the Ninth Circuit
 Melissa Hailey 59

o Issue: Whether Endo was being held without

justification in violation of her Constitutioanl
Rights.
o Holding: Yes, Endo was being held without
justificiation in violation of her Constitutional
Rights.
o Reason:
 regardless of whether the United States
Government had the right to exclude people
of Japanese ancestry from the West Coast
during World War II, they could not
continue to detain a citizen that the
government itself conceded was loyal to the
United States.
 they’re putting the Japanese in camps, so
it’s a greater deprivation of liberty
• curfew is a restriction, but not that
big of a restriction
• having to move is a more strict
restriction, but they were free to
move around
• here, they are under guarded watch
and not free to move around freely
• at some point, the court is going to
say, as they said in Endo, they’ve
gone too far
o “Tips the scales of justice”
• the camps were not being set up for
military purposes, but to cater to the
communities that did not want
Japanese citizens
• There is no great principle here that
made the court change its mind
 This decision helped lead to the re-opening
of the West Coast for resettlement by
Japanese-American citizens following their
internment in camps across the United
States during World War II.
- The Executive Power
o Youngstown Sheet & Tube Co. v. Sawyer
 Facts:
• President ordered governmental seizure of the steel
companies to prevent imminent steel strike during the
Korean War.
• The companies challenged his power to take such action as
being without constitutional authority or prior
congressional approval. Resulted in a suit for declaratory
and injunctive relief from a presidential order.
 Melissa Hailey 60

 Issue: Whether the President, relying on a concept of inherent

powers, and in his capacity as Commander in Chief, may make an
order which usurps the lawmaking authority of Congress on the
basis of a compelling need to protect the national security?
 Holding: No, the President CANNOT make an order which usurps
the lawmaking authority of Congress on the basis of a compelling
need to protect the national security.
 Reason:
• RULE: The President, as leader of the executive branch, is
bound to enforce the laws within the limits of the authority
expressly granted to him by the Constitution, and he
cannot usurp the lawmaking power of Congress by an
assertion of an unspecified aggregation of his specified
powers
• Majority - Justice Black: There is, admittedly, no
express congressional authority for these seizures, an so, if
any authority for the President’s act can be found, it must
come from the Constitution.
• In the absence of express authority for the President’s act,
it is argued that the power can be implied from the
aggregate of his express power granted by the Constitution.
o This order cannot be justified by reliance on the
President’s role as Commander in Chief.
• The President’s powers in the area of legislation are limited
to proposing new laws to the Congress or vetoing laws
which he deems inadvisable.
o This order is not executive implementation of a
congressional act but a legislative act performed
by the President. Only congress may do what the
President has attempted here.
• The Constitution is specific in vesting the lawmaking
powers in Congress, and, therefore, the Court affirmed the
district court’s decision to enjoining the enforcement of
this order.
• Necessary and Proper:
o relates only to Congress’s ability to pass laws;
does not apply to the executive branch
o under Article I that deals with Powers of Congress
o there is no Necessary and Proper Clause in Article
II that deal with the executive branch
• Jackson (concurring): There are three general
groupings of situation where the President’s powers are
uncertain:
o 1. When the President acts pursuant to an
express or implied authorization of Congress
 In this situation, the President’s authority is
at its max and is supported by the strongest
presumption of constitutionality.
 Melissa Hailey 61

o 2. When the President acts in the absence or

congressional approval or disapproval
 In this situation, he may have concurrent
power with Congress, and therefore,
congressional silence may enable the
President to act. The constitutionality of the
President’s exercise of authority will depend
on the particular circumstances and
exigencies at hand.
o 3. When the President acts contrary to the
express or implied will of Congress.
 Here, the President’s power is at its lowest
and is subject to high level of scrutiny.
• In the instant case, the seizure by the Pres. Falls into the
third grouping and can only be justified if it is exclusively
within the domain of his power and beyond the control of
Congress. Although the power here resides with Congress,
it must exercise this power if it is to prevent the power
from “slipping through its fingers”

THE WARREN COURT

- Racial Discrimination
o Equal Protection Clause
 Brown v. Board of Education
o Due Process Clause of the Fifth Amendment
 Bolling v. Sharpe
o Racial Classifications Applying Equally to Whites and Others
 Loving v. Virginia
 Melissa Hailey 62

o The Commerce Clause

 Heart of Atlanta Motel v. US
 Katzenbach v. McClung
o The Enforcement Clause of the Fourteenth Amendment
 Katzenback v. Morgan
- The Due Process Clause
o Economic Liberties
 Lee Optical v. Willimason
 Williamson v. Lee Optical
o The Right of Privacy
 Mapp v. Ohio
 Griswold v. Connecticut
 Loving v. Virginia
 Roe v. Wade

CONSTITUTIONAL STRUCTURE

ARTICLE I – THE LEGISLATIVE POWER

- The Spending Power
o South Dakota v. Dole
- The Commerce Clause
o US v. Lopez
o US v. Morrison
o Gonzales v. Raich
- The Enforcment Clause of the Fourteenth Amendment
o City of Boernes v. Flores
o US v. Morrison
o Board of Trustees fo U of Alabama v. Garrett
o Nevada Dept of Human Resources v. Hibbs

FEDERALISM LIMITS ON CONGRESSIONAL POWER

- The Tenth Amendment
o Gregory v. Ashcroft
o NY v. US
o Printz v. US
- The Eleventh Amendment
o Hans v. State of Louisiana
o Ex Parte Young
o Seminole Tribe v. Florida

FEDERALISM LIMITS ON STATE POWER

- The Dormant Commerce Clause
o Oregon Waste Systems v. Dept. of Environmental Quality
o Granholm v. Heald
o South Central Timber Development, Inc. v. Wunnicke
- Privileges and Immunities Clause of Article IV
o Hickland v. Orbeck
- Implied Limits on State Powers to Regulate Elections
 Melissa Hailey 63

o US Term Limits v. Thornton