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Outline of the Material I. The Founding a. Hobbes i. Hobbes believed that man was truly an evil creature and that government was formed in order to control mankind. ii. He believed that before mankind lived in a state of awe towards one man in power or one body of men, man was in a constant state of war every man against every man. iii. The only way to erect a power to control man is to confer all power and strength upon one man or upon one body of men to whom or to which every man will submit his wills. b. Locke i. Locke believed that, at heart, man was truly a good creature that exists in a state of perfect freedom and does not need to submit his liberties or wills to another man ii. However, he acknowledged that man will at times do bad things (he implies this with his right to punish argument), and because every man may or will do bad things, its necessary for men to consent and form a body of government in which punishment is carried out properly. iii. He says that nature has certain inconveniences which make government necessary and proper. iv. The great and chief end, therefore, of mens uniting into commonwealth, and putting themselves under government, is the preservation of their property. 1. It can be fairly said that the Constitution was written with very Locke-ian views in mind. c. Declaration of Independence d. Drafting and Ratifying the Constitution e. Origins of the Bill of Rights II. The First Constitutional Controversies a. One of the first Constitutional Controversies involved whether or not the federal

government could establish a state bank. b. James Madison: i. Believed that the federal government was limited; that it was not a general grant of powers. What was not granted was left in the hands of the public. ii. Where a meaning is clear, the consequences, whatever they may be, are to be admittedwhere doubtful, it is fairly triable by its consequences. In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide. iii. Madison opposed the establishment of a state bank in that it was not an enumerated power within his interpretation of the Constitution. iv. Madison distinguished between a power necessary and proper for the government and necessary and proper for executing enumerated powers. c. Alexander Hamilton: i. He was the only secretary who agreed with the federal bank in his opinion to Washington. ii. . . . a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society. 1. Hamiltons argument here echoes many of the arguments made much later in the history of the Constitution. d. Chisolm v. Georgia i. Background: this suit began when a South Carolina decedent sued the state of GA for debts not paid. The petitioner brought this suit in the Supreme Court initially. ii. Issue: At issue was whether or not the federal government could adjudge sovereign states. iii. Ruling: In a 4-1 vote, the Court ruled that it did have original jurisdiction over this issue and ruled against GA, entering a default judgment. iv. Discussion: The Court found original jurisdiction here because it fell within federal jurisdiction because it was an argument between a state and a citizen and because a State was a party. When the court ruled against GA, there was bitter outcry that the Court could pass judgment on a sovereign state. This ruling seemed to fly in the face of what the Constitutions supporters assured the states would not happen. Shortly after this ruling, the 11th Amendment was passed, specifically saying that

states cannot be sued in federal court. Almost. III. The Marshal Court a. Judicial Power i. Marbury v. Madison 1. Background: Here, Marbury asked the court to issue a writ of mandamus to compel Madison to deliver Marburys appointment, which Jefferson was trying to withhold. 2. Marshall addressed 3 key issues here: 1) was Marbury entitled to his commission; 2) was there a remedy; 3) is issuing the writ of mandamus the correct remedy afforded by the court 3. Marshall answered yes to the first two questions, but no to the third. 4. Heres why: The Judiciary Act of 1789 purported to give the Supreme Court original jurisdiction over this case. Marshall analyzed Art. III and found that the Court only had appellate jurisdiction. Based on this, the Court could not issue the writ because it had no jurisdiction. It had no jurisdiction because, it found, that Congress could not add to judicial powers by passing laws and because the Constitution is the supreme law of the land. By saying as much, Marshal established the principle that the Court could review laws and say that they are unconstitutional. What is more, Jefferson could not deny this because what he wantedthat Marbury not get his appointmentwas given him by Marshal. ii. Fletcher v. Peck 1. Background: GA attempted to pass a law which sought to annul earlier conveyances of land made by a corrupt legislature. The problem, however, was that some of this land had already passed to a good-faith purchaser. 2. Issue: Can a state pass a law that would a) make a past law invalid ex post facto; and 2) can a state repeal a contract 3. Here, the court reasoned that the conveyances of land were contracts, and due to the contracts clause in the constitution, a state cannot annul contracts. This law, therefore, was unconstitutional. iii. Martin v. Hunters Lessee 1. Background: This dispute arose over a P, an Englishman who was given land in VA by his uncle, who had become a VA citizen. VA

then passed an act that confiscated land from ex British nationals and loyalists. This land was taken and part of it was granted to David Hunters. 2. Issue: Is a state law saying one thing subordinate to a federal law that explicitly provides otherwise? 3. Reasoning: The VA Supreme Court refused to follow the federal mandate to rule in favor of Martin here. Despite this, Joseph Story, who authored the opinion here, argued that when there is a single Constitution which is to be followed, there must be a single judiciary power that has the right to have supreme review. Also, Story argued that state courts were supposed to follow federal law, which implies that they are subordinate to the federal judicial system. He ultimately argued that the Supremacy Clause in Art. VI makes state laws subordinate to federal laws. b. Necessary and Proper Clause i. McCulloch v. Maryland (Supreme Court interpreted the Necessary and Proper Clause to create implied powers and establish the legitimate role of the federal government in dealing with national problems.) 1. Background: This case considered the ability of the federal government to charter a corporation. A national bank was initially established, however it did not work well and was basically run by a corrupt group who more or less singularly profited from its practices. In light of this, MD enacted a tax on bank notes which was pretty much a discriminatory tax on the national bank. The national bank refused to pay the tax, and MD brought this action against the banks cashier, McCulloch. 2. Issue: Was the formation of the national bank constitutional? 3. Reasoning: This decision set up three main points: 1) that the federal government draws its power directly from the people; 2) it allowed Congress a wide scope of authority to do things in order to uphold its enumerated powers; 3) it concluded that state legislation that might interfere with this federal powers is invalid. Concerning #1, because the power of the federal government emanates directly from the people, state governments cannot interfere with it. a. Compare this case with Marbury: McCulloch went much further than Marbury. Marbury simply said that the judiciary could invalidate a law that was in direct conflict with the constitution. McCulloch, however, laid out the idea that Congress and the federal government have wide discretionary powers to do that which it deems necessary to uphold its enumerated powers.

b. Marshalls most famous passage and the sum of this power: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. c. Also, we must never forget that it is a constitution we are expounding. c. Commerce Clause i. Gibbons v. Ogden 1. Background: Ogden, by grant of two individuals who held exclusive rights to navigation in New York, had a monopoly on all boat and shipping activity within the state of NY. Gibbons operated a competing a boat service in NJ which serviced NY. Ogden filed suit to restrict Gibbons boat activity in NY, and the state court granted this award. Gibbons appealed to the Supreme Court. 2. Issue: Can a state pass a law which affects interstate commerce? What power does the federal government have to pass laws on such commerce? 3. Reasoning: Marshall first had to define and circumscribe what commerce is. Here, he said that commerce was intercourse and that shipping fell within the confines of commerce. By this, he said that the only commercial activities not within federal purview were those that were completely within state lines and that did not affect commerce in other states. This formulation left little activity that did not fall with federal power. ii. Wilson v. Black Bird Creek Marsh Co. 1. In contrast to Gibbons, here, the Court upheld a DE statute authorizing the construction of a damn across a creek that was used by boats with federal licenses. Despite this, Marshall believed that the statute was established to protect and promote the welfare of the states citizens, which made it a police power and which did not conflict with the commerce clause. d. Bill of Rights i. Barron v. City of Baltimore 1. Barron sued because the city of Baltimore attempted to construct a wharf, which deprived Barron of navigable waters which he used

for docking. This, he argued, was a taking of his property, which was protected by the 5th Amendment. 2. Justice Marshall ruled that the rights afforded to citizens in the Bill of Rights do not apply to the states. IV. The Taney Court a. Commerce Clause and Police Power of States i. Mayor of the City of New York v. Miln 1. Background: here, the city of NY was trying to require all ships entering the harbor to submit a list of passengers to the city for review. Miln refused to submit as much and was fined. 2. Issue: Was this action by the City about commerce? If so, did it interfere with federal law. 3. Reasoning: Taney ruled that this was a police action by the state and was not in opposition to the federal commerce clause. ii. Cooley v. Board of Wardens 1. Background: PA enacted a law that required all ships who did not use a pilot while entering and leaving ports in PA to pay a fine. 2. Issue: Does this law interfere with the federal commerce clause? Can states pass laws where the federal government is silent? 3. Reasoning: The area in which the PA law deals was not directly addressed by any federal statute. As such, and until the federal government enacts such a statute, the power to regulate this matter should be left to the states. The court also said there was a difference in the power to regulate and the difference in the subject that is being regulated. b. Slavery and the Constitution i. Prigg v. Pennsylvania 1. Prigg, a slaveowner, went to PA in order to re-claim one of his slaves. There is a specific clause in the Constitution Art. IV, 2(3), that says that a person can do as much, though the language of the Constitution does not specifically use the word slave. However, a PA law forbidding this action by Prigg gets him trouble. Prigg argues that the law is unconstitutional. 2. Issue: Can a state law be passed that goes against what the constitution ostensible explicitly states?

3. Justice Story reasoned that states cannot pass laws which go against the Constitution. ii. Lysander Spooner c. Citizenship and the Missouri Compromise i. Dred Scott v. Sandford 1. Background: Dred Scott was a slave who was moved in and out of free territory with his owner. However, at the death of this owner, Scott tried to buy his freedom as he was in free territory. His owners daughter, however, tried to claim Scott as hers. 2. Issue: Can a state make a slave a free person? They also framed this question as: can a state introduce a person as a citizen into the population. 3. Reasoning: The court argued that slaves were not citizens of the US entitled to the rights and privileges of normal citizens. Furthermore, a state could not introduce a person as a citizen into the population. By this reasoning, the state law granting as much was unconstitutional. ii. Frederick Douglas V. The Civil War a. Presidential Power in Wartime i. Ex Parte Merryman 1. Background: Merryman was a Baltimore citizen arrested and accused of trying to detonate explosives. When this man was denied a trial and his rights to due process, the Court issued a writ of habeas corpus, which Lincoln, acting as President and commander in chief, chose to ignore. 2. Issue: Can the President suspend the writ of habeas corpus? 3. Reasoning: Justice Taney reasoned that the President could not suspend the writ of habeas corpus. Taneys reasoning here stemmed from the fact that the power to suspend the writ was contained in Art. I of the Constitution, which pertained to the Congress. ii. Abraham Lincoln 1. Power to Suspend Writ of Habeas Corpus 2. Power to Emancipate Slaves

iii. The Prize Cases 1. Background: This case arose out of the capture of two neutral ships and taken as prizes. The capture, it was argued, was justified because its well known that in times of war neutral ships can be captured provided the neutral knows that the enemy belligerent is attacking that area. 2. Issue: Can these neutral ships be capture under the guise of military action during wartime? 3. Reasoning: Yes. The court established that a war was going on and that this action was proper because of that. b. Power to Establish Military Tribunals i. Ex Parte Milligan 1. Background: Milligan was a citizen of Indiana and in no way shape or form had ever served or been part of the military. Also, he was in a state that had not participated in the Civil War. 2. Issue: can rules of law pertaining to war time dictate whats proper to civilians? 3. Reasoning: no usage of war could sanction a military trial where for any offence whatever of a citizen in civil life. VI. The Progressive Era a. Commerce Clause and the Necessary and Proper Clause i. United States v. E.C. Knight Co. 1. Background: Defendant, an American sugary refinery, attempted to contract with four other sugar in order to supply sugar. The relationship would have realistically formed a monopoly in the sugar business. To that end, the US, armed with the Sherman Antitrust Act, moved to block this relationship between the five companies. 2. Issue: Can the US block a monopoly that becomes as one due to a manufacturing relationship between several companies? 3. Reasoning: The court ruled that the Sherman Antitrust act could not block this contract because it dealt with manufacturing and not commerce. The court distinguishes Gibbons from this case because Gibbons was about commerce, whereas this is not. The court used Marshals commercial intercourse idea to narrow the scope of the commerce clause.

ii. Champion v. Ames 1. Background: federal government attempted to block the transfer or lottery tickets across state lines. 2. Issue: Can the federal government block a commercial activity thats commercial solely because it is transported form one state to another. 3. Reasoning: Yes. The court could do as much because this fell within the purview of commerce between the states. However, the court seemed to really be going after the act of gambling so much as the trying to regulate interstate commerce. iii. Hammer v. Daggenhart 1. Background: A federal statute prohibited the movement of goods for 30 days made by children under the age of 14 or children under the age of 16 who worked more than 8 hours a day and/or 6 days a week. 2. Issue: Can Congress regulate interstate commerce as such 3. Reasoning: This court distinguished the goods in this case from other cases where Congress was given the power to regulate. In those cases, this court said, those goods were repugnant to society, and Congress had a duty to regulate them from going interstate. In this case, the goods are perfectly legal and the end goal is merely to promote fairness among the states by limiting those states that have more lax laws. This, the court said, is outside Congresss power and this law is unconstitutional. VII. The New Deal Court a. The Contracts Clause i. Home Building and Loan Corp. v. Blaisdell 1. Background: In 1933, MN enacted a state statute that extended the time mortgagors had to repay their loans to banks before the payments ballooned. P here argued that this law was unconstitutional because it violated the contracts clause of the constitution, which prohibits states from interfering with contracts 2. Issue: Can a state pass a law in a state of emergency that lets it do something the C says it cannot? 3. Reasoning: Here, the court reasoned that in cases of emergencies, states can and should be able to pass laws that may be unconstitutional. It argues that this in the spirit of the C, to give

states the power to protect its citizens; that a changing and different society requires such reasoning; that the C was intended to be a mutable instrument open for interpretation. b. The Commerce Clause and the Necessary and Proper Clause i. Substantial Effects Doctrines 1. NLRB v. Jones and Laughlin Steel Corp. a. Background: The National Labor Relations Act was set up in order to protect labor relations and enforce rules against unfair labor practices. The NLRB charged the D in this case with unfair hiring and tenure practices in order to compel employees not to organize and to punish those who did. They argued that the NLRB was unconstitutional because it was affecting commerce not within the power of the C. b. Issue: Is the NLRB acting within its Constitutional bounds? Do the regulations it supports fall within federal power. c. Reasoning: This court, very unlike the sugar case, argued that the federal government has the power to regulate commerce on a broader scale when such commerce even falls within acts that merely affect interstate commerce. The court noted that even some intrastate commerce has interstate effects, and the federal government could regulate here. 2. United States v. Darby a. Background: In this case, the US tried to block shipment of goods made by people who werent getting paid enough or who were working too many hours. b. Issue: Does Congress have C power to prohibit shipment in interstate commerce of goods made by unfair trade practices? c. Reasoning: The court said that Congress does have this power because it was not regulating the manufacture of such goods, only that it was regulating the shipment of such goods. ii. Aggregation Principle 1. Wickard v. Filburn a. Background: Filburn was a small-time wheat farmer who

was given 11.1 acres to grow wheat. He grew about twice that, but used his excess allotment for personal use. He was fined about $117 dollars, but refused to pay. b. Issue: Can Congress tell a small-time farmer how much wheat he can grow in order to protect the whole by saying that this farmer is an effect on interstate commerce? c. Reasoning: This court said that it could do nothing to stop Congress from such a regulation. The end is the common good for all (Commies) and that if they allow one small farmer to grow his own wheat, then all small farmers may do as much which would be deleterious to the wheat market. 2. Barry Cushman c. War Power i. Ex Parte Quirin 1. Background: Some European soldiers were picked up on the beach after having snuck into the US. They had explosives with them and were denied due process. They landed in military uniforms, however they changed into civilian clothes. 2. Issue: What was the status of these men when they were caught? What rights were they afforded by the laws of the US? 3. Reasoning: These men were deemed to be enemy belligerents and, thus, were not entitled to due process. They were subject only to military tribunals in accordance with the War Powers Act. ii. Hirabayashi v. United States 1. Background: P here was 1) told that he could not go to his normal home and 2) was subject to a curfew. He sued because he argued this interfered with his 5th Amendment rights. 2. Issue: What powers can the US take in times of war in terms of limiting a citizens rights? 3. Reasoning: The court upheld this act because it was a) a law passed by Congress and b) necessary in times of war. iii. Korematsu v. United States 1. Background: This is much like Hirabyashi, however here, the P was relocated to an internment camp. The court did not argue about the detentionthey argued about the exclusion from a

certain area. Under laws passed by congress and as a reason of the war powers act, Japanese descendants were relocated to concentration camps. 2. Issue: Can the US detain these people as such? 3. Reasoning: Again, the Court ruled that this was proper or at least acceptable because of the war and the necessity