Melissa Hailey



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

Melissa Hailey




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 o

Melissa Hailey


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

it still has to pass the proper test 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 . 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. 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.Melissa Hailey 4 o 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. Is it absolutely necessary?  2. 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.

otherwise it’s irrational • Implied powers are included in the power of Congress • Necessary means useful or condusive to something • Page 58. if it has any meaning. but not necessary o Power to Coin money  Same argument with necessary and proper o Power to regulate interstate commerce  Express v. 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. 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. and in that interpretation. may be denominated the natural means of executing a power. in other words. by implication is going to have the power to use the necessary means to meet the ends that have been prescribed to them. Georgia • . having a bank is useful to borrow money. The phrase and proper. but when you’re on the Madison side. 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.Melissa Hailey 5 Necessary is not a completely clear and unambiguous term • Madison interpreted it to mean strictly necessary. 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. you could put the money anywhere • Under the strict interpretation. 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. paragraph 4 sums up Hamilton’s view o Concept of “Sovereinty”  Chisholm v.

and foreign states. between citizens of different states. or by Citizens or Subjects of any Foreign State • The 11th Amendment reversed the decision of Chisholm v.Melissa Hailey 6  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. Section 2: The judicial power shall extend to all cases. other public ministers and consuls. under their authority. executive. or which shall be made. commenced or prosecuted against one of the United States by Citizens of another State. 1795 • . o State conduct was subject to judicial review. and between a state. and judicial powers of the national government o supreme or sovereign power was retained by citizens themselves. in law and equity. between a state and citizens of another state. to controversies between two or more states. not by the "artificial person" of the State of Georgia. 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. 1793. 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. and treatiwes made. to all cases of admiralty and maritime jurisdiction. the law s of the US. arising under this Constitution. to controversies to which the US chall be a party. and the Eleventh Amendment was passed on February 7. • The Justices based their decision on fundamental principles. or the citizens thereof. between citizens of the same state claiming lands under grats of different states. Georgia and clarified that an individual cannot sue another state o Chisholm decision was February 18. to all cases affecting ambassadors. o The Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. citizens or subjects • Holding: o “the people of the United States" intended to bind the states by the legislative. you have to have standing and jurisdiction o In this case.

go to the document first. Bull • Issue: whether a State law barring appeals initiated 18 months after the ruling is an ex post facto law. adopted. when there’s an ambiguity. so they should have say in interpreting the meaning of the social contract o Basic contract principle. 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. 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” o .Melissa Hailey 7 o o proposed. and ratified so quickly because  The states didn’t want to pay debts  The states didn’t want to be sued Fundemental Principles v. and whether any law of the Federal government. 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 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. or of any of the State governments. Expressed Constraints  Calder v. prohibited by the Constitution of the US.

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. takes it away  They don’t have to nullify it. 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.Melissa Hailey 8 • If the states really were the parties that created the Constitution. 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  .

Melissa Hailey 9 THE MARSHALL COURT The Judicial Power o John Marshall. all others are an act of Congress pursuant to Article III • President Adams appointed several different judges. 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. it was issued by the President. 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. signed. o the Constitution was "the fundamental and paramount law of the nation" o "an act of the legislature repugnant to the constitution is void. 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. a Federalist." .

" the Georgia legislature could not take away the land or invalidate the contract. This case establishes the Supreme Court's power of judicial review.  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 . that act is invalid. In 1800. • 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 Court held that laws annulling contracts or grants made by previous legislative acts were constitutionally impermissible. Peck  For the first time. • The following year. the legislature voided the law and declared all rights and claims under it to be invalid. • He then sold the land to Robert Fletcher three years later. • Fletcher argued that since the original sale of the land had been declared invalid. Fletcher v. when the Constitution--the nation's highest law--conflicts with an act of the legislature. • Noting that the Constitution did not permit bills of attainder or ex post facto laws. however. the Georgia state legislature passed a land grant awarding territory to four companies. the US Supreme Court holds a State law unconstitutional  Facts: • In 1795.Melissa Hailey 10 o o o In other words. Peck had no legal right to sell the land and thus committed a breach of contract. claiming that past sales of the land had been legitimate. John Peck acquired land that was part of the original legislative grant.

reassures people who need to see it on paper 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. like the argument of the bill of rights. they have to compensate you for it • Even if the treaty did not exist. a lot of the provisions are merely declaratory of principles that already exist in the law • the right/power/principle already exists. if they take it.Melissa Hailey 11 o 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. Martin would still have an argument • . and said that you can’t take away the loyalist property without just compensation • Treaty embodied a natural principle of justice: eminent domain. 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. it doesn’t hurt to have the declarations. in effect. right to property. 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. the state was.

Treaties • Federal Question Doctrine • Have this power whether the states like it or not Necessary and Proper Clause o McCullogh v. 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. 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. it implies a remedy o if the US Supreme Court has the right/power to review the cases. 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.Melissa Hailey 12 - 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. 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 • . then. no right” o if you have a right. Federal Statutes. 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.

was limited to their express powers o The Country decided to go from the Articles. to a situation where there is a necessary and proper clause • Placement w/in the Constitution o In Article I that deals with Congress. 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.Melissa Hailey 13    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. 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. with a strict limitation. there has to be a reasonable type of relationship between the ends (explicitly given in Article I. Section 8) and the means (implicit) . 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. they could have also stated that • Articles of Confederation o Had a provision that said the Federal Gov.

or essential to another. or in approved authors. To employ the means necessary to an end. great quotes: • “The government of the Union. according to the dictates of reason. and its laws. we find that it frequently imports no more that one thing is convenient. and truly. entrusted with such ample powers. and not as being confined to those single means. In form and in substance it emanates from them. when made in pursuance of the Constitution. without which the end would be entirely unattainable. form the supreme law of the land. and for their benefit. then (whatever may be the influence of fact on the case) is emphatically. the duty of performing hat act.” • “The government of the US. Its powers are granted by them. must. it is the ineterst of the nation to facilitate its execution” • “The government which has a right to do an act. is generally understood as employing any means calculated to produce the end. in the manner most beneficial to the  .Melissa Hailey 14  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.” • “The sound construction of the constitution must allow to the national legislature that discretion. and are to be exercised directly on them. must also be entrusted with ample means for their executeion. theat a government. with respect to the means by which the powers it confers are to be carried into execution. “anything in the Consitution or laws of any state to the contrary notwithstanding” • “It may with great reason be contended. The power being given. which will enable that body to perfom the high duties assigned to it.” • “The government is acknowledged by all to be one of enumerated powers. is supreme. and ahs imposed on it. be allowed to select the means” • Necessary: “If reference be had to its use in the common affairs of the world. a government of the people. on the due execution of which the happiness and prosperity of the nation so viatally depends. or useful. though limited in its powers.

which forced him to obtain a special operating permit from the state to navigate on its waters. • Willson. • Marshall's was one of the earliest and most influential opinions concerning this important clause. and all means which are appropriate. which are plainly adapted to that end. the licensed owner of a sailing vessel. • 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. Ogden  Facts: • A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. was travelling on the Creek and broke through the dam. but consist with the letter and spirit of the Constituion.  Facts: • The state of Delaware authorized the Blackbird Creek Marsh Company to construct a dam spanning the Blackbird Creek. • He also gave meaning to the phrase "among the several states" in the Commerce Clause. • In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted. . 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. which included navigation on interstate waterways. which are not prohibited. o Wilson v. • 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. • Chief Justice Marshall developed a clear definition of the word commerce. Let the end be legitimate. • The New York law was invalid by virtue of the Supremacy Clause.” The Commerce Clause o Gibbons v. let it be within the scope of the Constitution.  Issue: Whether the State of NY had the authority to regulate interstate commerce  Holding: NY did not have the authority to regulate interstate commerce. are Constitutional. Black Bird Creek Marsh Co.Melissa Hailey 15 - people.

• As the city developed and expanded. large amounts of sand accumulated in the considered as repugnant to the power to regulate commerce in its dormant state. depriving Barron of the deep waters which had been the key to his successful business. Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.  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 is inconsistent with Gibbons. 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.  Holding: No.Melissa Hailey 16 - The Company successfully sued Willson for trespassing and obtained a court order for Willson to pay damages. • He sued the city to recover a portion of his financial losses." The Bill of Rights o Barron v.. • Willson then brought the case to the Supreme Court. . . or as being in conflict with any law passed on the subject.can.  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. . . • Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D. • The Court found that Congress had taken no actions with which the Delaware authorization could conflict: • "We do not think that the Act." and was not in conflict with the Commerce Clause. 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.C. why? • Willson is a police power statute • . 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.

 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. and possible convicts. • The justices ducked the Commerce Clause issue and invoked what was to become the state "police power" -. • The city sought to collect a penalty for Miln's failure to file the report. • According to Barbour. but not Gibbons THE TANEY COURT The Commerce Clause and the Police Power of the States o City of New York v. which may arise from unsound and infectious articles imported. • Miln. safety. as it is to guard against the physical pestilence. who wrote the majority opinion.the right of a sovereign to take all necessary steps to protect the health. and welfare of its citizens.Melissa Hailey 17 • • • 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. a state is as competent "to provide precautionary measures against the moral pestilence of paupers." . the State had the right to control in Willson. 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). the master of a ship. vagabonds. refused to comply with the law.

escaping into another shall. then Virginia (1661) o by 1804. Connecticut. demand diverse local rules to cope with varying local conditions. Section 2 of the Constitution: o “No person held to service or labor in one state. and.Justice Curtis • the pilotage law did not violate the Constitution. Massachusetts. Vermont. Penssylvania • Facts: o Prig is a slave catcher who went into Pennsylvania to capture Margaret  . Slavery and the Constitution o 1641: slavery was first recognized by statutes concerning fugitive slaves in Massachusetts. 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. NY. but shall be delivered up on claim of the party to whom such service or labor may be due”  Prigg v. the interesting twist here was whether the Commerce Power was exclusive. • Congress had provided in 1789 that state pilotage laws should govern. • The power of Congress was therefore selectively exclusive. be discharged from such service or labor. hode Island. like pilotage. Pennsylvania. while others. in consequence of any law or regulation therein. 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 . piloting was navigation. • Though the subject to be regulated was commerce. under the laws thereof.Melissa Hailey 18 - Police power v. then Connecticut (1650). • Some subjects demand a single uniform rule for the whole nation. • Navigation was commerce. “Fugitive Slave Law” • Article IV. 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.

Melissa Hailey 19 o Pennsylvania’s law said that if you are within the borders of the state of Pennsylvania. 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. 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. Thus. one can exercise self-help 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. 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. you’re free o Prigg kidnapped Margaret and her children from Pennsylvania and returned them to their slave owner. o Emerson took P from Missouri (slave state) to Illinois (free state) and to Louisiana Territory (free). • 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: o . since clause is self-executing. meaning no additional legislation is needed by Congress. 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.

then the person arguing that side has the burden of proof.  Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes. he was taken there. and that only Congress could confer national citizenship. 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. but that means if you bring your slave into Upper Louisiana. “No person shall be deprived of life liberty or property without due process. he should be free o . you’ll be deprived of your property.  Therefore. 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. so if the provision is narrowly construed. argued Taney. the Missouri Compromise is supposedly unconstitutional under the 5th Amendment Due Process Law.Melissa Hailey 20 • • 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. he should win o if something ought to be narrowly construed. no one but a citizen of the United States could be a citizen of a state. 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. and unless the slave owner can prove it falls within the exception o Scott wasn’t a fugitive slave.” 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.

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

1961  .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. not the States  “Such will be a great lesson of peace. Section 9. teaching men that what they cannot take by an election. so far as they are concerned.  Article 1. ¶ 2: The privileges of the Writ of Habeas Corpus shall not be suspended. neither can they take it by war – teaching all. 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. not the states “We the People”.” 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. the folly of being the beginners of a war. 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. 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. 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. the Union has been perverted from the purposes for which it was ordained and ceased to answer the ends for which it was established. to the whole government”  The States were purchased by the Union from foreign countries. and have legal status only as part of the Union. and if they break form the Union. a peaceful appeal to the ballot box declared that. should be confided to the whole.

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 23 • Facts: o a military officer issues an order to arrest a citizen of Maryland o under the order. 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 kept in confinement o a habeas corpus is served ont eh commanding officer. the citizen is seized as a prisoner. which describes the executive’s power. 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. 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. taken to Fort McHenry. 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 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.

or any place subject to their jurisdiction • Section 2: Congress shall have power to enfoce this article by appropriate legislation - . 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.Melissa Hailey 24 RECONSTRUCTION ERA Background: o After Lincoln’s assignation. a Tennessee Democrat was President o Johnson was later impeached for resisting the efforts of the Republican Congress to “reconstruct” the South. shall exist within the US. VP Johnson. except as a punishment for crime whereof the party shall have been duly convicted.

 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   . 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. lease. or property. 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. 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 due process of law. sell hold. 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. shall have the same rights to: • make and enforce contracts • sue and be sued. purchase. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.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. 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. nor shall any State deprive any person of life. nor deny to any person within its jurisdiction the equal protection of the laws. liberty. be parties. are citizens of the United States and of the State wherein they reside. and give evidence • inherit. without regard to any previous condition of slavery.

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 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. the fourteenth amendment (privileges and immunities clause) o . 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.

section 4 was not violated 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.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. 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-ofstaters the same way. Article 2. 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. 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 Limiting the Amendment to Racial Discrimination  Background:  . and unless they discriminate against out-of-state-ers . not national Relevance: o Makes the privileges and immunities clause largely irrelevant o Two different lists of privileges and immunities o o Bradwell v.

Cruikshank • Facts: o Black citizens took over the courthouse o a party of whites tried to take it back. they were exercising privileges and immunities of State Citizenship. 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. freedom of association. and those are not • .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. organizational.) o Natural Rights (protected under the Fifth Amendment) US v.) o Political Rights (right to run for office. Section 5  enforced through the Civil Rights Act (which Congress had the power to enact through the 14th Amendment. 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. etc. 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. 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. 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.) o Social Rights (commercial. etc. etc. Section 5) o Court says this doesn’t fall within the powers of Congress to criminalize violations of this act o Barron v. sue and be sued.

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. other than the . • Holding: Yes. and fined under an Illinois law that barred perople. 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. convicted. 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. Illinois • Facts: o Presser led workers with unloaded rifles through Chicago to protest police violence o he was arrested. and to give to that race the protection of the general government.Melissa Hailey 29 o 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. 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. but lawyers at that time did The Amendment Does Not Extend the Bill of Rights to the States  Presser v. and there is no indication that there is any governmental involvement  Strauder v. in that enjoyment.

and an Opera House • Issue: Whether under constitutional law. 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. 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”. o These are a group of cases where African Americans were denied accommodations and privileges at inns. facilities. hotels. and privileges of inns.Melissa Hailey 30 o organized militia of the States and US troops. advantages. and other places of public amusement. theaters. theaters. 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) 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. public conveyances on land or water. o The law prohibited discrimination based on race and color or on the basis of any previous condition of servitude. 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. 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. 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? . you would want to argue: o Barron v.

is simply a private wrong. or his reputation. and may presumably be vindicated by resort to the laws of the State for redress. o “The wrongful act of an individual. and not merely power to provide modes of redress against such State legislation or action. an invasion of the rights of the injured party." The "discriminated party" must take care of their cause of action in a state court. or a crime of that individual. 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. whether they affect his person. some African-Americans enjoyed freedoms before this Act was passed. Also. unsupported by any such authority is simply a private wrong. o this Act is just a political manifestation of the prevailing notion of universal freedom. o Thus an act of refusal into a public place has nothing to do with "a badge of slavery or involuntary servitude. this is a political and constitutional one. This assumption is certainly unsound. . o The wrongful act of an individual unsupported by any such authority. it is true.” o The powers were reserved to the people in the tenth amendment. or done under State authority. Let the states handle it. 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. 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. why are they complaining now? o Also. and may presumably be vindicated by resort to the laws of the State for redress (this is a tort action more or less).” Dissent: (Justice Harlan): o There is no entry into the domain of state's rights here. and power is conferred upon Congress power to legislate generally upon that subject. his rights remain in full force. or a crime of that individual.Melissa Hailey 31 • • • Holding: No. It would not be feasible to make every case based on slavery a federal case. His rights remain in full force. his property. but if not sanctioned in some way by the State. o “This is not a social decision.

o o Facially Neutral Laws  Facially Neutral Laws: law that looks like it’s neutral on its face. the fact that the chinease were all denied permits while the whites all got permits. 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. as it is a constant reminder of what was. speaks for itself as to the intent of the statute The “Seperate But Equal” Doctrine  Plessy v. o When D resisted. since the court has ruled in favor of bowing out of the conflict. and what shouldn't be anymore according to the law. Ferguson • Facts: o Plessy. the 5th article of the 14th amendment does not specifically reference prohibitions on states. The government does not have anything to do with social issues or social relations. 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. but still is.Melissa Hailey 32 o o o Practicing discrimination is a badge of servitude. Furthermore. . with no other reasonable explanation. he was arrested for violating a state law which provided for segregated “separate but equal” railroad accommodations. was denied a seat in an all white railroad car. 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. who was 7/8 white and whose skin color was white. 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.

a state law segregating the races in “separate but equal” facilities or accommodations is NOT Unconstitutional.Melissa Hailey 33 • • • • D appealed the conviction on the basis that separation of the races stigmatized blacks and stamped them with the badge of inferiority.  Yick Wo v. and traditions of the people in the state. 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. Issue: Whether a state law segregating the races in“separate but equal” facilities or accommodations is Unconstitutional.  Strauder v. which would make it being subject to heightened scrutiny under the Equal Protection Clause. usage. holding that the Fourteenth Amendment requires equality of treatment “without regard to any differences of race. 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. o Early cases involved the Equal Protection Clause to strike down state and local laws that discriminated against blacks. of color. and tradition in the state. so why not here?) o How does racial segregation impose no disproportionate impact on racial minorities. how is this argument valid (clearly colored races been treated unequally in the past. o The Court states that if such state-mandated segregation “stamps the colored race with a badge of inferiority. usage. Reason: o RULE: Segregation of the races is reasonable if based upon the established custom. but solely because the colored race chooses to put that construction upon it”  considering the history of slavery and unequal rights. o . it is not by reason of anything found in the act. West Virginia: The court used the clause to reverse the conviction of a black D because state law excluded blacks from the jury. Hopkins: Six years later. or of nationality” Holding: No. o D claimed that segregation violated the Thirteenth and Fourteenth Amendments. the Court extended the Clause to protect the Chinese.

and this is a valid exercise of the state’s police power. sue and be sued  Further. o Enforced separation is an impermissible burden on these privileges and freedoms.This is not a badge of slavery under the 13th Amendment and it violates no provision of the 14th Amendment. o The Constitution is color blind. o Where this has been the established custom. blacks are not subordinate or inferior beings. therefore. o Such decisions have been continuously been upheld. it may continue to require such segregation as is reasonable to preserve order and the public peace. 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 o . 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. and.  badges and incidents of slavery is limited only to civil rights including the rights property. 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. The Commerce Clause and Necessary & Proper Clause  US v.Melissa Hailey 34 o The state may segregate the races in “separate but equal” facilities or accommodations. make contracts. or tradition in the state. 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. all citizens should and must be treated alike. usage. They are citizens and are entitled to all of the privileges which this entails. thus. the conviction should be overturned.

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. • Reason: o if you look at the Constitution. when contracted. 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. Congress did not have the power to make paper money. Griswold • Issue: Whether Congress had the power to tender paper money under the Legal Tender Acts. it doesn’t get you to the point where paper money is okay o . • Holding: No. and people did not have faith in the treasury/government Knox v. Congress does have the power to tender paper money. 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. Lee: Overturned Hepburn v. but paper does not. were payable by law in gold and silver coins.Melissa Hailey 35   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. • Holding: Yes. (overturned Hepburn) • Reason: o everything did not have to be totally enumerated in the Constitution o Constitution is a means to an end.

to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department. • Reasons: o Congress has the power to tender money through the Constitution:  to lay and collecte taxes. Greenman • Issue: Whether Congress has the power to tender paper money in both peacetime and wartime. and to tread on legislative ground” THE PROGRESSIVE ERA . 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. • Holding: Congress has the power to tender money. but the legislature should decide the issue when the question of exigency arises.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.

 Issue: Whether Congress exceeded its constitutional authority under the Commerce Clause when it enacted the Sherman AntiTrust Act. Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition. 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". • The Act aimed to stop the concentration of wealth and economic power in the hands of the few. .  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. • The E.  Holding: The Anti-Trust Act was Constitutional.or conspiracy. . and it declared every attempt to monopolize any part of trade or commerce to be illegal. but that which does not belong to commerce is within the jurisdiction of the police power of the State. • That which belongs to commerce is within the jurisdiction of the United States. making such regulation more difficult o Champion v. • It outlawed "every contract.. and that the states needed more monitoring and regulation The Commerce Clause and Necessary & Proper Clause o US v. EC Knight Co. affects it only incidentally and indirectly. • manufacturing—in this case.C. refining—was a local activity not subject to congressional regulation of interstate commerce. .. and commerce. 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. in restraint of trade" or interstate commerce. . any action against manufacturing combinations would need to be taken by individual states. but . . industry. combination. • Under the Knight decision. Knight Company was such a combination controlling over 98 percent of the sugar-refining business in the United States.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. .

Day revised the Constitution slightly and changed the intent of the framers: The Tenth Amendment does not say "expressly.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. o Hammer v.  Holding: Yes. is complete in itself. lottery tickets were "subjects of traffic. it did violate the Commerce Clause  Reason: • two grounds to invalidate the law: o Production was not commerce. • Reuben Dagenhart's father had sued on behalf of his freedom to allow his fourteen year old son to work in a textile mill. Fifth Amendment." 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. noting that this power "is plenary. and is subject to no limitations except such as may be found in the Constitution.  Reason: • The Court emphasized the broad discretion Congress enjoys in regulating commerce. 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  . and thus outside the power of Congress to regulate. • "the powers not expressly delegated to the national government are reserved" to the states and to the people. o the regulation of production was reserved by the Tenth Amendment to the states. Dagenhart  Facts: • The Keating-Owen Child Labor Act prohibited the interstate shipment of goods produced by child labor." • Congress was merely assisting those states that wished to protect public morals by prohibiting lotteries within their borders. • In his wording. or Tenth Amendment.  Issue: Whether the Child Labor Act violates the Commerce Clause." and that independent carriers may be regulated under the Commerce Clause.

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. claiming that: o the staute was contrary to the fourteenth amdnment.  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. Chicago  Facts: • City ordinance said that certain parcels of land would be condemned to widen streets • in the condemnation proceeding. v. the jury fixed one dollar as just compensation to the railroad company for their land • the railroad company moved for a new trial. Burlington & Quincy Railroad Co.  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” o . 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. 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? Chicago. 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.Melissa Hailey 39 o cannot violate ones life.

it would involve no interest of the public. o The character of this law and the subject it legislates is not intended to preserve public health and welfare.  Issue: Whether the Act relates to the safety. NY  One of the most hated cases in Constitutional Law  Facts: • Lochner an employer in the business of making biscuits. labor law declares that is an illegal act to allow/require an employee to work more than 10 per day or 60 week. o The court may only decide whether the act is a legitimate police power of the state. but not citizen a corporation. health. cakes. o If the act made no reference whatever to the question of health. therefore. and general welfare of the public under the police powers or whether it prohibits the right of employers/ees from voluntarily entering into contracts. or confections. nor welfare of the public. The purpose of this statute has no direct relation or substantial effect upon the health of an employee.  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.Y. • N. cannot sue under the privileges and immunities clause. 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. o The limit of police power has been reached and passed in this case.Melissa Hailey 40 o o o o o the other provisions protect “persons” citizens is a narrower category a corporation can’t vote. It only seeks to regulate . but can sue under the Due Process clause Lochner v. neither safety. bread. so a corporation is a person. required or permitted an employee to work more than sixty hours in one week. morals.

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. this falls within the state’s police power to regulate the health and safety of its citizens Adkins v. o o 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.  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. 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. in a private business. without violating the Constitution.  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 • . The freedom to contract with each other in relation to employment cannot be prohibited or interfered with. there is not a free exchange Muller v.Melissa Hailey 41 o the hours of labor between an employee and an employer. the statute was unconstitutional in violation of the right to contract. 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.

Meyer. who taught German in a Lutheran school. • The legislature's view of reasonableness was subject to supervision by the courts. prohibited the teaching of modern foreign languages to grade school children. • The legislative purpose of the law was to promote assimilation and civic development. along with other states. you cannot protect yourself o At the time of Muller (1908) women couldn’t vote. 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." o However. Meyer v." • the law was really motivated by prejudice of Germans Pierce v. o Issue: Whether the statute violated the 14th Amendment Due Process Clause  Holding: YES. Society of the Sisters of the Holy Names of Jesus & Mary  Facts:  .Melissa Hailey 42 o in a democracy. • State regulation of liberty must be reasonably related to a proper state objective. areas in which regulation to protect the public welfare were legitimate. was convicted under this law. the statute's implementation procedures were overly vague and did not act to regulate the character or method of wage payments. The Congress simply had enacted a "price-fixing law. in this case. so it was the court’s responsibility to protect them o at the time of Adkins (1923). or the conditions and hours of labor. you protect yourself by political organization (voting) o if you cannot vote. they could vote. • Liberty means more than freedom from bodily restraint. the statute violated the 14th Amendment Due Process Clause  Reason: • Nebraska violated the liberty protected by due process of the Fourteenth Amendment. 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. State of Nebraska  Facts: • 1923: during World War I o • • Nebraska.

 Reason: • the thirteenth amendment is involved because this is involuntary servitude.  Issue: Whether the sanction of hard labor was in violation of the Thirteenth Amendment. • Under Alabama law. Bailey's act was criminal. 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 • . 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. and established and maintained academies or schools. • He was convicted and sentenced to 136 days of hard labor under the Alabama peonage law. educated youths. 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. • He quit after a month and did not return $15 advanced to him. State of Alabama  Facts: • Bailey contracted to work on a farm for a year at $12 a month.  Holding: YES.  Issue: Whether this law violated the Fourteenth Amendment’s Due Process Clause  Holding: YES.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. hard labor was involuntary servitude in violation of the Thirteenth Amendment.

- Issue: Whether seizure of items from D’s home violated his Constitutional Rights. This was done without a search warrant. Reynolds  Facts: • Rivers was convicted of larceny and entered into a written K with Reynolds. and the government's refusal to return Weeks' possessions violated the Fourth Amendment. under the pain of recurring porsecutions. 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. • This was the first application of what eventually became known as the "exclusionary rule" The First Amendment .  Reason: • the State may impose fines and penalties that must be worked out for the benefit of the State.  Holding: The seizure of items from Weeks' residence directly violated his constitutional rights. in violation of the Thirteenth Amendment.  Holding: Yes. but cannot enforce a K between a surety and a convict that requires. Weeks took action against the police and petitioned for the return of his private possessions. the labor was an involuntary service.Melissa Hailey 44 - Judged by its effect and not by its pretense. 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.  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. the law violated the Thirteenth Amendment o US v. 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.

words. Schenck mailed circulars to draftees. a call for a general strike. US  Facts: • During World War I. • Issue of proximity and degree Debs v. • 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. • 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. • 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. • The leaflets had a tendency to encourage war resistance and to curtail war production. utterances tolerable in peacetime can be punished. 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. and an attempt to curtail production of munitions.  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.  Reason: • the leaflets are an appeal to violent revolution. • During wartime. • Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. US Abrams v. . the Espionage Act did not violate the free speech clause. and expressions were protected by the free speech clause of the First Amendment  Holding: Schenck’s actions. 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. words.Melissa Hailey 45 o o o Schneck v.

CA . 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. o At his trial. a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security. NY  Facts:  • • • Gitlow. • The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. a socialist. the truth will come out and the best argument will win. the pamphlets did not present a clear and present danger • In “the free market of ideas”. the statute penalized utterences without propensity to incitement of concrete action. Gitlow was convicted under a state criminal anarchy law. • The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. • This is a step back from Abrams because whether it’s a clear and present danger is determined by a case-by-case basis. Those legislative decisions will be upheld if not unreasonable. Gitlow argued that since there was no resulting action flowing from the manifesto's publication.  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. and a case-by-case basis will protect more individuals’ rights Stromberg v. and the defendant will be punished even if her speech created no danger at all. which punished advocating the overthrow of the government by force. even if it is an “Un-American” idea Gitlow v. it’s across the board before the act occurs. even though such utterances create no clear and present danger.Melissa Hailey 46 o Dissent: Brandies and Holmes • The necessary intent was not shown • On the facts of the case. but if the legislature is determining.

Melissa Hailey 47 THE NEW DEAL COURT The Contracts Clause o Home Building & Loan Association v. 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. • The state argued that this was a legitimate use of its police powers since Minnesota faced massive economic difficulties. • The law extended the time period in which borrowers could pay back their debts on property to lenders. Minnesota enacted the Mortgage Moratorium Law in an effort to combat the economic emergency posed by the Great Depression.  Issue: Whether the Mortgage Moratorium Law violated Article 1. Blaisdell  Facts: • In 1933. 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) .  Reason: • The Great Depression was a dire situation • There is still compensation given.  Holding: The law was not Unconsitttional because if the relationship of emergency to constitutional power.

Melissa Hailey 48

o -

o 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

also, state gave away their power to impair the contracts when you ratified the Constitution that argument did not win here

Melissa Hailey 49

o o

public interest doctrine, and the pressing obligation to check any legislative interference with property. Objected to the idea that the right to regulate business implied the power to trespass on the duties of private management. 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 pricecutting. 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 

• The majority's view on economic regulation remains the law of the land today. 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. but the expansion of Commerce Clause jurisprudence signaled by West Coast Hotel was reined in slightly by United States v.  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. Morrison (2000) Qualifying the Presumption of Constitutionality o US v. and United States v. and that the shift of the burden for the poor onto employers was an arbitrary and naked exercise of power. • Presumption of Constitutionality . Carolene Products Co. • The end legitimate because it’s for the health of the citizens • the court holds that the means are appropriate to the end.Melissa Hailey 51 - were in an unfair bargaining position for employees and employers  reached the same decision as Muller. and the ends legitimate o Court finds that the regulation is reasonable. Lopez (1995).  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. the Great Depression). o Freedom of contract was the rule with few exceptions.

Supreme Court awarded standing to one plaintiff who had actually been threatened with termination. and their cases were dismissed for lack of ripeness.S. lots of groups get favorable legislation United Public Workers v. 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. • Holding: No. • Reason: o the fundamental human rights are not abolsutes o o Court must balance the extent of the guarantees of freedom against a congressional enactment to protec a democratic society against the supposed . 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. 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. Mitchell • Facts: The federal employees sued to enjoin the Hatch Act of 1939.Melissa Hailey 52  Statute is presumed constitutional. unless the D has a valid due process argument. • Issue: Whether the Hatch Act violated the Ninth Amendment rights. o The U. the other employees had not faced such a direct threat. the Hatch Act did not vilate the Ninth Amendment rights. leading the employees to file suit.

is to fall within an . with discriminating against employees who were union members. you need to have the power to regulate everything that substantially affects it o The Substantial Effects Docrine  NLRB v. thus. could be regulated by the national government.Melissa Hailey 53 evil of political partisanship employees of government  by classified - 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. the National Labor Relations Board charged the Jones & Laughlin Steel Co. 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. in the Constitution are states rights  all a regulation has to do to be regulated by the federal gov. Congress determined that labor-management disputes were directly related to the flow of interstate commerce and. • Reason: o tenth amendment argument: those powers not expressly provided for the Federal Gov. • 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. o In this case. Jones & Laughlin Steele Company • Facts: o With the National Labor Relations Act of 1935.

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. 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. Darby • Facts: o • • • • In 1938. which is not commerce itself. o is not enough to say that it does not fall under Commerce Power. Issue: Whether the Act was a legitimate exercise of Congress’ power to regulate interstate commerce Holding: Yes. Dagenhart (1918). Justice Stone . must look at whether it effects commerce  it doesn’t have to be commerce. notably Hammer v. but social o the power is plenary. maximum weekly hours. o Corporations which engaged in interstate commerce or produced goods which were sold in other states were punished for violating the statute. it has to have an effect on interstate Commerce in order to fall under the Commerce Power  Feds win because regulating union activity. 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). 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. Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages.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. and child labor.

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. • 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. o He was given a wheat acreage allotment of 11. . they.Melissa Hailey 55 argued that the "motive and purpose of a regulation of interstate commerce are matters for the legislative judgment . • All returned to Germany between 1933 and 1941. argues that it still effects commerce because if he didn’t grow his own wheat. o Filburn harvested nearly 12 acres of wheat above his allotment. as a class. Filburn • Facts: o Filburn was a small farmer in Ohio. o He claimed that he wanted the wheat for use on his farm. he would be in the market buying it o Aggregation Doctrine: don’t look at just the individual in the instant case. • Reason: o farmer’s argument: no economic transaction if the wheat never left the farm or the wheat got bought or sold. . o - . including feed for his poultry and livestock. o He argued that the excess wheat was unrelated to commerce since he grew it for his own use. but if the entire class of farmers did this. so it’s not under the Commerce Clause o gov.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. over which the courts are given no control." The Aggregation Principle  Wickard v. 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. o Fiburn was penalized.

Melissa Hailey 56    After the declaration of war.  Hirabayashi was convicted of violating a curfew and relocation order. 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. was a University of Washington student. • Milligan and Quirin are consistent in law. he’s being put in front of a military tribunal as an unlawful combatant Issue: Whether Quirin is entitled to a trial by jury. AntiJapanese sentiment at that time  President and Congress passed curfew and exclusionary laws  The defendant. pursuant to his Constitutional rights as a citizen. 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. Holding: No. and his appeal of this conviction reached the Supreme Court. US o Facts:  After the bombing of Pearl Harbor. but they draw a line o Milligan was a citizen of Indiana. Hirabayashi. 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 • • o 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 . Quirin is NOT entitled to a trial by jury because the President has the executive power to enforce the laws. o Issue: Whether the particular curfew order directed against Americans was unconstitutional . and o (3) this power was by virtue of the President’s power as commander in chief. 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.

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. US o Facts:   o o o Executive Order 9066 gave authority to exclude any persons from areas on the west coast in order to insure against sabotage. applied only to those of Japanese ancestry. Issue: Whether the forced relocation. In a case like this. 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 . violated the Equal Protection Clause Holding: No. everyone of Japanese ancestry was moved from their homes on the West Coast to “relocation centers”. Under this authority. the forced relocation did not violate the Equal Protection Clause because it was justified by pressing public necessity. 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. so the Government gets the presumption of Constitutionality  HOWEVER.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. the P couldn’t prove that he was a loyal citizen. o later overturned Korematsu v.

was evacuated from Sacramento.  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. Is worried that once the Court sanctions such a law allowing racial discrimination. California.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. this will bring problems in the future. the plaintiff in the case. 1942. Doesn’t want to make a decision about how necessary the law is. pursuant to Executive Order 9066 and was removed to the Tule Lake War Relocation Center located in Modoc County. in 1942. there is no question about P’s loyalty to the US. They are subject to the most rigid scrutiny. not one person of Japanese ancestry was ever convicted of sabotage. but sometimes pressing public necessity can justify the existence of such restrictions. 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. California. 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 July.  Jackson dissent: The court has no way of knowing that the law has a reasonable basis in necessity. How is it rational to relocate him? Further. That petition was denied and an appeal was perfected to the United States Court of Appeals for the Ninth Circuit  . Ex Parte Endo o Facts:   Endo. In this case.

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.Melissa Hailey 59 o o o Issue: Whether Endo was being held without justification in violation of her Constitutioanl Rights. as they said in Endo. but not that big of a restriction • having to move is a more strict restriction. the court is going to say. they are under guarded watch and not free to move around freely • at some point.  they’re putting the Japanese in camps. • The companies challenged his power to take such action as being without constitutional authority or prior congressional approval. Holding: Yes. 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. they could not continue to detain a citizen that the government itself conceded was loyal to the United States. Endo was being held without justificiation in violation of her Constitutional Rights. but they were free to move around • here. Resulted in a suit for declaratory and injunctive relief from a presidential order. Sawyer  Facts: • President ordered governmental seizure of the steel companies to prevent imminent steel strike during the Korean War. so it’s a greater deprivation of liberty • curfew is a restriction. they’ve gone too far o “Tips the scales of justice” • the camps were not being set up for military purposes. . v. - The Executive Power o Youngstown Sheet & Tube Co.

Only congress may do what the President has attempted here. relying on a concept of inherent powers. 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. is bound to enforce the laws within the limits of the authority expressly granted to him by the Constitution.  . as leader of the executive branch. 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. the President’s authority is at its max and is supported by the strongest presumption of constitutionality. • In the absence of express authority for the President’s act. 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. therefore. it is argued that the power can be implied from the aggregate of his express power granted by the Constitution. When the President acts pursuant to an express or implied authorization of Congress  In this situation. it must come from the Constitution.Melissa Hailey 60  Issue: Whether the President. Reason: • RULE: The President. • The Constitution is specific in vesting the lawmaking powers in Congress. o This order cannot be justified by reliance on the President’s role as Commander in Chief. no express congressional authority for these seizures. an so. and he cannot usurp the lawmaking power of Congress by an assertion of an unspecified aggregation of his specified powers • Majority . if any authority for the President’s act can be found. • 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. and. o This order is not executive implementation of a congressional act but a legislative act performed by the President.Justice Black: There is. admittedly. 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.

and therefore. congressional silence may enable the President to act.  Here. Board of Education o Due Process Clause of the Fifth Amendment  Bolling v. Although the power here resides with Congress. he may have concurrent power with Congress. When the President acts in the absence or congressional approval or disapproval  In this situation. Sharpe o Racial Classifications Applying Equally to Whites and Others  Loving v. 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. the President’s power is at its lowest and is subject to high level of scrutiny. the seizure by the Pres. The constitutionality of the President’s exercise of authority will depend on the particular circumstances and exigencies at hand. When the President acts contrary to the express or implied will of Congress. o 3.Melissa Hailey 61 • 2. Virginia . it must exercise this power if it is to prevent the power from “slipping through its fingers” o THE WARREN COURT Racial Discrimination o Equal Protection Clause  Brown v. In the instant case.

US  Katzenbach v.The Dormant Commerce Clause o Oregon Waste Systems v. Inc. Lopez o US v.Melissa Hailey 62 - The Commerce Clause  Heart of Atlanta Motel v. Dole .The Enforcment Clause of the Fourteenth Amendment o City of Boernes v.The Tenth Amendment o Gregory v. Orbeck . Virginia  Roe v. US .Implied Limits on State Powers to Regulate Elections . Wade o CONSTITUTIONAL STRUCTURE ARTICLE I – THE LEGISLATIVE POWER .The Spending Power o South Dakota v. Garrett o Nevada Dept of Human Resources v.The Commerce Clause o US v. Willimason  Williamson v.The Eleventh Amendment o Hans v.Privileges and Immunities Clause of Article IV o Hickland v. v. Morrison o Gonzales v. Ashcroft o NY v. of Environmental Quality o Granholm v. US o Printz v. Ohio  Griswold v. Dept. Morrison o Board of Trustees fo U of Alabama v. State of Louisiana o Ex Parte Young o Seminole Tribe v. Heald o South Central Timber Development. Connecticut  Loving v. Hibbs FEDERALISM LIMITS ON CONGRESSIONAL POWER . Raich . Flores o US v. Morgan The Due Process Clause o Economic Liberties  Lee Optical v. McClung o The Enforcement Clause of the Fourteenth Amendment  Katzenback v. Florida FEDERALISM LIMITS ON STATE POWER . Lee Optical o The Right of Privacy  Mapp v. Wunnicke .

Melissa Hailey 63 o US Term Limits v. Thornton .

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