conlaw dude

8/6/2019 Conlaw Dude

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Outline of the Constitution

1) Article I-Legislative Branch

a) Section 1

i) All legislative powers vested in Congress

b) Section 2-House of Representativesi) House of Representatives description

ii) Qualifications for the Houseiii) Representation numbers in the House

iv) Vacancies in the House

v) House has the power of impeachment

c) Section 3-Senate

i) Senate description

ii) Election of representatives and vacanciesiii) Qualifications for the House

iv) VP is president of the Senate, but has no vote, unless equally divided

v) Senate and officers

vi) Senate has power to try impeachments

vii) Impeachment

d) Section 4

i) Times, places, and manner of holding elections for legislature

ii) Congress must assemblee) Section 5

i) Quorumii) Expulsion of members

iii) Record keeping of meetings

iv) Adjournment restrictions

f) Section 6

i) Compensation, privilege from arrest

ii) Holding other offices

g) Section 7

i) Creation of billsii) Presentment Clause, veto

iii) Orders, resolutions, or votes

h) Section 8-Congress enumerated powersi) Section 9-

i) Migration or importation of people (slaves)

ii) Habeas corpus

iii) Bill of attainder

iv) Taxesv) No duty or tax on exports from states

vi) No preference in commerce shall be given to shiops of one state

vii) Money from the treasury

viii)Nobility titles

j) Section 10

i) Restrictions on states

ii) Restrictions on states for import duties

iii) Restrictions on states2) Article II-Executive Power

a) Section 1i) Terms of presidency

ii) State appoint electors

iii) Voting for president and offices to be taken by votes

iv) Congress chooses the day for choosing electors

v) Requirements for president

vi) Removal, resignation, death of president

vii) Compensation for the president


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viii)Oath

b) Section 2

i) Commander in chief of army and navy

ii) Powers of president

iii) Powersc) Section 3

i) Laws be faithfully executedii) Removal

3) Article III-Judicial powersa) Section 1

i) Supreme court an inferior courts that Congress may establish, compensation

b) Section 2

i) Jurisdiction

ii) Original jurisdiction forappellate for all others

iii) Crimes tried by jury

c) Section 3i) Treason

ii) Punishment of treason4) Article IV

a) Section 1

b) Section 2

i) Privileges and immunities of citizens in several states

ii) Delivery up criminals

iii) Reunaway slave law

c) Section 3

i) New states admittedii) Congress makes rules in territories

d) Section 4

i) Guarantee republican government and protect from invasion and domestic violence

5) Article V

a) Amendments to the constitution and restrictions of amendments

6) Article VI

a) Debts contracted are still valid

b) Supreme Law of the landc) All people bound by oath to support constitution, no religious test required

7) Article VII

a) Ratification of Constitution

8) Amendment I

a) Freedom of religion, speech, press, assembly, petition

9) Amendment II

a) Right to bear arms

10) Amendment III

a) Quartering of soldiers

11) Amendment IVa) Unreasonable searches and seizures, warrants upon probable cause

12) Amendment V

a) Criminal defendant rightsb) Life, liberty, and due process of the law cannot be deprived

c) Cannot take private property for public use without compensation

13) Amendment VI

a) Speedy and public trial and more defendant rights

14) Amendment VIIa) Trial by jury required

15) Amendment VIII

a) Cruel and unusual punishments


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16) Amendment IX

17) Amendment X

a) Powers not delegated to the U.S., nor prohibited to the states, are reserved for the states or people

18) Amendment XI

19) Amendment XIIa) Voting for the executive and vice executive

20) Amendment XIIIa) No slavery

21) Amendment XIV

a) Section 1

i) Citizenship

ii) Privileges and immunities cannot be abridged by any state

iii) State cannot deprive life, liberty, or property without due process of the lawiv) Equal protection

b) Section 2-Voting in elections

c) Section 3-Cannot hold office having previously held office that engaged in insurrection-congresscan remove

d) Section 4-Debtse) Section 5-Congress has the power to enforce by legislation the provisions

22) Amendment XVa) Section 1-Voting shall not be denied based on race, color, or previous condition of servitude

b) Section 2-Congress can enforce23) Amendment XVI

a) Congress power to lay and collect taxes on incomes without regard to census or enumeration

24) Amendment XVII

a) Senate electors

b) Vacancies in the senate25) Amendment XVIII

a) Prohibition

26) Amendment XIX

a) Women can vote

27) Amendment XX

a) Section 1-When terms of president and senators and representatives endb) Section 2-Congress shall assemblec) Replacement of President

d) Death of

28) Amendment XXI

a) Repeal prohibition

29) Amendment XXII

a) President cannot serve more than 2 times

30) Amendment XXIII

31) Amendment XXIV

a) Voting shall not be denied based on a poll tax or some other tax32) Amendment XXV

a) Vice president becomes president if President is removed or dies

b) Vacancy in office of VP

c) If president cannot act

33) Amendment XXVI

a) Voting age 18

34) Amendment XXVII

a) Law varying compensation of represntatives or senators


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General Concepts on Constitutional Law

1) States do not have to point to something as they have a general police powera) Can do something solely based on the reason of enhancing the welfare of the citizenry

2) Necessary and Proper clause expands upon the enumerated powersa) Means anything that is rationally related and not expressly forbidden3) Supremacy clause makes a federal law supersede a state law if the federal law is valid

4) State Action Requirement-The constitution only applies to government run institutions andgovernment action

a) It does not apply to private parties except with the 13th amendment5) General Welfare applies only with taxing


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I. The Document and the Doctrine

Roe v. Wade (1973)1) Facts: Roe is a citizen of Texas who wants an abortion. There is a state law which makes all abortions

illegal except those necessary to save the life of the mother. She sues saying under the 14th

amendment saying her liberties are being taken away by the statute.

2) Issue: It the Texas statute unconstitutional because it interferes with a womans right to privacy?

3) Holding: Yes

4) Reasoning: There is a fundamental right to privacy under the 14th amendment which is broad enough toencompass abortion. However, rights to privacy must be balanced with state interests. So abortion

could be restricted if there were a compelling state interestin barring abortion and if the statute was

narrowly drawn so it fulfilled only that legitimate interest. During the first trimester the state has nointerest because mortality rate for mothers is so low and so the state may not ban or even closely

regulate abortions. During the second trimester the state may protect its interest in the mothers healthby regulating abortion procedures. During the third trimester, where the fetus becomes viable, the state

has a compelling interest in protecting the fetus so it may ban abortion. However, abortion must be

permitted where it is necessary to preserve the life or health of the mother.


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II. An Early Case Study: The Bank of the United States

The Bank of the United States

1) 1781 the Continental Congress chartered the Bank of North America

a) Madison says its unconstitutional because it exceeded Congress authority but it was justified

because of the need to finance a war against Britain

2) The First Bank of the United States chartered in 1791 for 20 yearsa) Madison-denounced bank as beyond Congress constitutionally delegated authority. Could be

pretended under the power to collect taxes, to borrow money, to pass all laws necessary to carry

into execution those powers. The bank doesnt fall under any of these three powers and it is not

closely related.

b) Jefferson-a bank was not a power delegated to Congress. Constitution gives Congress thenecessary means, not the convenientmeans because otherwise their powers would be boundless.

c) Hamilton-Necessary and proper refers to the idea that Congress has the right to employ allmeans

requisite and fairly applicable to the attainment of the ends of such power. A bank is a means ofcarrying into execution specified powers like collection of taxes, interstate commerce etc.

3) Congress fails to renew bank charter in 1811 but the Second Bank is created because of the needs ofthe War of 1811. The Bill is signed but a number of states remain hostile and enacted nearly

annihilative taxes on the bank, this being the context ofMcCulloch v. Maryland. States hostile

because their banks lose authority, it is unconstitutional, and it was a state power before.

McCulloch v. Maryland (1819)

1) Facts: McCulloch is the local teller operating the Bank is Maryland. There is a Maryland law requiringany bank not chartered by the state to pay either an annual tax of 15,000 of a tax of 2 percent of all its

notes. This was a measure intended to discriminate against the national bank. The bank refused to pay

the tax.

2) Issue: Does Congress have the power to create a national bank? If so, is the state tax on it

constitutional?3) Holding: Yes and No

4) Reasoning:a) The bank is constitutional.

i) First, the precedent of the first bank asserts its Constitutionality because the historicalexperience justifies the constitutionality of a practice.

ii) Second, he refutes compact federalism (idea that states are sovereign because they created andratified the Constitution) and says that the people ratified the constitution and retain

ultimate sovereignty. The federal government is supreme over the states, and the states have

no authority to negate federal actions.

iii) Third, Congress powers are not limited to what is explicitly stated. The Constitution is

different than a statute, and should be interpreted differently. Congress may choose any

means, not prohibited by the Constitution, to carry out its lawful authority.(1) Must be room for interpretation

iv) Fourth, the necessary and proper clause means that as long as the means are legitimate,appropriate, and plainly adapted to that end, it is constitutional. Necessary means useful or

desirable, not essential. As long as the means are rationally relatedto an expressed power,

the means are constitutionalExpansion in scope of Congressional Power (cannot beprohibited by the constitution)

(1) He rejects the contention that necessary meant absolutely necessary or

indispensable


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(2) The bank has a reasonable relationship to various constitutionally enumerated powers

(collect taxes, borrow money, regulate commerce etc.)

(3) The fact that the clause is put within the powers given to congress means it isnt meant to

be a rrestriction but a grant of authority

b) The Tax is Unconstitutionali) The power to create a bank includes the power to preserve its existence. The power to tax is

the power to destroy which conflicts with the federal power to create and so the state mustyield. State cannot retard the operations of constitutionally created Congressional laws

ii) The tax is a tax upon the federal government which means the whole United States is paying

the tax. So the state is not taxing its constituents like a normal state tax and so there is no

check on the power and it could become oppressive. A state cannot tax the federal

government.

Congress does not have the power to pass ALL necessary and proper, but necessary and proper to

carry out the foregoing powers. Had to be in relation to the Article 1 list.


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III. Constitutional Interpreters

Judicial Review

1) The evidence is weak for judicial review

a) No where in the constitution

The Marshall Court

1) Between 1796-1800 the Federalist Part controlled the national government almost completely to the

exclusion of the Republicans.

a) In 1800, after losing control of the presidency and the House, the lame duck Federalist Congress

and Adams have a scheme to fill the courts with Federalists. So they elect John Marshall for

Supreme Court.

i) 1801 the Judiciary Act is passed which fills Circuit Courts with new judges appointed byAdams and eliminates circuit riding responsibilities of Supreme Court justices.

ii) 1801 the Organic Act is passed which creates new positions of justice of the peace and Adams

chooses 23 people to fill these positions

b) Republicans decide to undue Adams work

i) 1802 they abolish the new circuit courts and restore to 1789 system

Stuart v. Laird (1803)

1) Facts: This is a direct challenge to the Congressional Repeal Act

2) Holding: The court upheld the constitutionality of the repeal of the Judiciary Act and therefore

acquiesced in the Jeffersonian purge of the Federalist circuit judges. Supreme Court justices riding

circuit is acceptable based on the practice and acquiescence for a period of several years now.

Marbury v. Madison (1803)-Judicial Review of Acts of Congress

1) Facts: Congress adopted the Organic Act which authorized the president to appoint 42 justices of thepeace. Marshall signs the commissions and his brother delivers them. A commission for Marbury was

never delivered and once Jefferson takes office, he instructs his secretary of state Madison, to withholdthe undelivered commissions. Marbury wants proof of his commission and he feels he earns it.

Marbury is suing for a writ of mandamus ordering delivery of the commission.2) Issue:

a) Does Marbury havea right to the Commission?

b) Do the laws afford Marbury a remedy?

c) Is the remedy of mandamus to be issued from this court?

3) Holding:

a) Yes he has a right to the commission because all appropriate procedures were followed

b) Yes, where a specific duty is assigned by law (right to the commission) to the president andindividual rights depend upon performance of that duty, it is clear that the individual whoconsiders himself injured has a right to resort to the laws for remedy (acts required by law are

reviewable by the court)

c) No.

i) The 1789 Judiciary Act provides that the Supreme Court can issue writs of mandamus incases to persons holding office under the United States. Thus this act explicitly authorized the

relief being sought by the plaintiffs.


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ii) However, this grant of jurisdiction is in conflict with Article III, Section 2, which grants theSupreme Court original jurisdiction in cases affecting Ambassadors, other public Ministers

and Consuls, and those in which a State shall be a party. Since issuance of mandamus is not

among the types of cases as to which original jurisdiction is conferred on the Supreme Court,

the Congressional statute was at odds with the Constitution. Congress cannot expand its

original jurisdiction beyond the situations enumerated in the Constitution.

d) Establishes that the court has the authority (and the duty) to declare a statuteunconstitutional and refuse to enforce it if it violates the Constitution. It is the province and

the duty of the judicial department to say what the law is. It is the court, not the legislature, which

must decide if an act of Congress is in conflict with the Constitution.

i) Inherent to the judicial role to decide the Constitutionality of the laws it appliesii) Judges take an oath to support the Constitution

iii) Limits on governmental powers are meaningless without judicial enforcementMarbury establishes the authority of the judiciary to review the constitutionality of executive and

legislative acts. Ingenious decision because Madison would not have turned over the commission so

the court reaches this result under which it does not have to; they say that they cant entertain that

kind of request

Theories of Judicial Review

1) No provision in the Constitution explicitly authorizes federal judiciary to review legislation2) The Countermajoritarian Difficultya) Hamilton says judicial review is a deviant aspect of society because when the court declares

unconstitutional a legislative act or the action of an executive, it thwarts the will of representatives

of the actual people

i) It exercises control, not in behalf of the prevailing majority, but against it

ii) So judicial review is undemocratic and the American polity is committed to a majoritariandemocracy

3) Opposition of the Countermajoritarian difficulty

a) Our system is filled with power of the countermajority

i) Senate gives small states as much power as large

ii) Presidential veto

iii) Some presidents dont receive majority vote

iv) Policy at the national level is the outcome of agreement among minorities4) Justifications for Judicial reviewa) Supervising inter and intra governmental relations

b) Preserving fundamental values-courts deal with an actual problem

c) Protecting the integrity of the democratic process-protects freedom of speech, voting rights, and

protects minorities against prejudice

d) Courts have the time, insulation, and leisure to best preserve fundamental values

Limits on Federal Judicial Power

1) Jurisdiction Stripping

a) Article II recognizes important congressional power to define the shape and scope of the federaljudiciary. Lower federal courts need not exist and in theory Congress is free to abolish these

courts.

b) Can congress strip away cases from the federal court?i) Hart school says Congress may, so as to leave the last word on certain cases in state courts.

But such exceptions, should not go so far as to intrude upon the essential functions of the

Supreme Court

ii) Story school says that Congress can restrict both lower federal court jurisdiction and the

Supreme Courts appellate jurisdiction, but Congress may not do both at the same time-at

least where federal question cases are concerned

2) Standing

a) Litigants who come into court in general must assert their own legal right, rather than seeking toadjudicate and define the rights of others. Plaintiff must be injured in fact.


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3) Political Question

a) In a few situations, the Constitution vests judicial, adjudicatory power in another branch ofgovernment

i) Judges seek clear doctrinal rules capable of principled exposition. If such rules are

unavailable in a given situation, this may counsel judicial abdication-not because there are no

constitutional principles at stake, but because they cannot be cleanly implemented in a

judicially manageable way with proper legal tests

Executive Disagreement about Constitutional Decisionmaking

Jacksons Veto Message

1) Precedent is dangerous and shouldnt answer questions of constitutionality

2) Each branch has a responsibility to interpret the Constitution as he understands it

a) Judges have no more authority over congress and executive

3) Necessary and proper

a) Many of the powers/privileges conferred unto the national bank are not necessary to attain the endfor which it was created

i) Congress has established other ways to coin money and regulate the value4) The rich and powerful bend the acts of government for their selfish purpose

5) State powers are being frittered away

State Resistance of Unconstitutional Laws

Sedition Act of 1798

1) Section 2 of the act says that if any person shall write, print, utter or publicany false, scandalous and

malicious writings against the governmentsuch personshall be punished by a fine andimprisonment

a) Act sparks fiery debates over the scope of the first amendment and the proper realms of state and

federal power

Kentucky and Virginia Resolutions of 1798-1799 Opposing the sedition act

1) Both declare the sedition act unconstitutional

2) NC refuses to support the proposal that states take countermeasures against the federal government

even though they think it is unconstitutional3) RI rejected not only the doctrine of nullification, but also the very idea that it had the authority to

assess the Acts constitutionality

a) This may be the earliest suggestion of a strong notion of judicial supremacy regarding

constitutional interpretation

Regulation of the Interstate Economy

Gibbons v. Ogden (1824)

1) Facts: NY legislature granted a monopoly to Fulton and Livingston for operating steamboats in NY

waters. They licensed Ogden to operate a ferry boat. Gibbons operated a competing ferry service andthus violated the exclusive rights given to Fulton and Livingston. There is a 1793 federal law which

authorized Gibbons to operate a ferry in NY

2) Issue: Is the NY law constitutional?3) Holding: No

4) Reasoning

a) Commerce includes all phases of business, including navigation. Commerce is more than justbuying and selling, but is all commercial intercourse.

b) The word among the states means intermingled with or commerce which concerns more statesthan one.

c) The power over commerce with foreign nations and among the states is vested in Congress asabsolute and no area of interstate commerce is reserved for state control.


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d) Supremacy Clause-Where states enact laws which interfere with an act of Congress passed inpursuance of the Constitution, they must yield to the laws of Congress

The commerce power extends into the territory of a state when interstate commerce exists there. The

power does not stop at the boundary line of a state

Mayor of the City of NY v. Miln (1837)

1) Facts: An 1827 New York law required the master of a vessel arriving in NY from another country orstate to provide a detailed report on every person brought as a passenger in the ship proceeding to NY.Also required the master to post security for the maintenance of immigrants and their children who

became wards of the city and to remove any non-citizen whom the mayor deemed likely to be come

dependent. This is subject to a fine

2) Issue: Is this act a regulation of interstate commerce making it unconstitutional?

3) Holding: no it is a regulation of internal police power, which is a power of the state

4) Reasoning:

a) Internal police laws are not surrendered and it is the states authority

i) This is relating health (police power) not commercial activityb) This law operates on persons that are already in the NY territory and is passed for the benefit of

persons within that territoryc) There is no collision of federal and state law here

i) The federal acts of 1799 and 1819 affect passengers on their voyage whereas this act begins

where that law ends

5) Concurring-Thompson

a) Believes that commerce lies within the authority of the state until congress assumes the exercise

The law is intended to protect the state from the burden of caring for indigents. The states have

retained power over the objects that concern the lives, liberties, and properties of the people. The

law falls within this power because it operates within the territory of NY, for the benefit of the people

of NY. States retain full and exclusive authority over matters of internal police.

Cooley v. Board of Wardens

1) Facts: An 1803 Pennsylvania law required vessels entering and leaving the port of Philadelphia toengage a local pilot to guide them through the harbor. There is a penalty for non compliance. Purpose

is to secure lives and property exposed to the perils of a dangerous navigation.

2) Issue: Does this law conflict with the federal commerce power?

3) Holding: No

4) Reasoning

a) The first Congress indicated that until Congress should find it necessary to exert its power, it

should be left to the legislation of the statesi) The law is not in conflict with any Federal law or regulation

b) This is a local concern and best provided for by the statesi) The grant to Congress the power to regulate interstate commerce did not deprive the states of

power to regulate pilots

1) Federalism

a) A federalist system is where the national government and the state governments co-exist.

i) Must always watch whether some power being asserted by the federal government is in fact

allowed under the Constitution

ii) Power divided between the states and the federal governmentiii) Federal government must always point to something which gives them power

b) 2 dimensions of federalism

i) Vertical-relation between states and federal government

ii) Horizontal-relationships between states

(1) 2 aspects of horizontal federalism are dormant commerce clause and the interstate

privileges and immunities under article IV.

Dormant Commerce Clause


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1) Congress is granted the power in the commerce clause to regulate commerce among the states. But it

does not explicitly grant power to federal courts to invalidate state laws in the absence of congressional

action. So states have a residuum of power to regulate local affairs even if their actions affect

interstate commerce, provided that their regulation does not impermissibly trespass upon national

interests.2) Absent congressional action, states have power to regulate local affairs affecting interstate commerce if

those affairs do not trespass upon national interestsi) Assuming it is rationally related to a state interest

ii) State interest outweighs any burdens that result has on interstate commerce

b) Dormant Commerce clause only applies where Congress has not attempted to exercise its

commerce power in a particular area

c) Burdensome Laws-A law will be upheld unless the burden imposed in such commerce is clearly

excessive in relation to the local benefitsi) Pike v. Bruce Church

(1) Arizona statute requiring that all cantaloupes grown in Arizona and offered for sale bepacked in Arizona.(a) Court holds that where the statute regulates evenhandedly to effectuate a legitimate

local public interest, and its effect on interstate commerce are only incidental, it will be upheld unless the burden imposed in such commerce is clearly excessive in

relation to the local benefits. The extent to which the burden will be tolerated will

depend on the nature of the local interest involved and whether it could be promoted

as well with a less impact on interstate activities. BALANCING TEST

ii) Hughes v. Oklahoma

(1) Developed the Pike Commerce clause balancing test into 3 prongs

(a) Whether the challenged statute regulates even handled with only incidental effect on

interstate commerce or instead discriminates against interstate commerce on its faceor in practical effect

(b) Whether the statute serves a legitimate local purpose

(c) Whether alternative means could promote this local purpose as effectively without

discriminating against interstate commerce

d) Facially Discriminatory Laws-Will be invalid if a state law discriminates against out of stateeconomics interests, like a tariff

i) In cases where a state law overtly discriminates against out of state economic interests in a

fashion akin to a tariff, quota, or embargo, the SC h as routinely abandoned the balancing

approach in favor of a virtually per se rule of invalidity

e) Market Participation Exception-when a state enters the market as a purchaser for end use ofitems in interstate commerce, it may restrict its trade to its own citizens or businesses within the

state

i) Favoring your own state must serve a legitimate state interest (PIKE TEST)

f) Promotes national unity

3) Modern Approach to the Dormant Commerce Clause has a series of tests and state regulation whichaffects interstate commerce must meet each of the following requirements to be upheld:

a) Regulation must pursue a legitimate state end

i) Economic advantage is not a legitimate state end

b) Regulation must be rationally related to that legitimate end

c) The regulatory burden imposed by the state on interstate commerce, and any discriminationagainst interstate commerce, must be outweighed by the states interest in enforcing its regulation

4) Interstate Privileges and Immunitiesa) Article 5 requires each state to accord citizens of sister states with privileges and immunities

i) May not treat fellow states simply as outsiders(1) Political rights fall outside of this

(2) Can secure a reasonable preference though

b) Prevents a state from discriminating against non-residents. But it only operates with respect to

rights that are fundamental to national unity


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i) Includes everything related to commerce. Right to be employed, practice ones profession,

engage in business

c) State can impair out of staters exercise of a fundamental right to national unity if it passes a 2

prong test

i) State must show that out of staters are apeculiar source of the evilthe statute was enacted tofix

ii) The state must show that statute is substantially related to the peculiar evil the out of statersrepresent(1) No less discriminating alternatives

IV. Slavery

Groves v. Slaughter (1841)

1) Facts: The Mississippi Constitution of 1832 forbade important slaves into the state for sale there.

2) Issue: Does this conflict with the commerce clause of the constitution?

3) Holding: Thompson avoids the issue because a state constitution requires the passage of activating

legislation. But there is a vigorous side debate

4) Side Debate:

a) McLean-power over slavery belongs to the states because it is local in character. Mclean sees thereal problem that if slaves were commerce, commerce could prohibit the interstate clave trade by

ordinary legislation under the commerce clause.

b) Taney-power is exclusively left with the states

c) Baldwin-A state can abolish slavery, but it cannot allow slavery and prohibit the slaver tradebecause slaves are items of commerce and regulation of interstate commerce lay with Congress.

Any state may regulate its own purely internal commerce but when such regulation extends to

other states it is limited by the constitution.

Prigg v. Pennsylvania (1842)

1) Facts:

a) Prigg captures a slave in Pennsylvania and takes them back to Maryland. He violates an 1826

Pennsylvania law designed to prevent self-help in the return of fugitive slaves. The law requiresPrigg to go before a judge and show proof that she is a slave and that he is the agent of the owner

and then take her out of t he state. The law also requires a stringent process including witnessesand a hearing.

b) Article IV Section II implies a Congressional power to set up a system for the return of slaves.

This is a command to Congress to create a mechanism for slaves to be delivered up. The federal

statute has a simple process.

2) Issue: Is this act unconstitutional?

3) Holding: Yes

4) Reasoninga) Inconsistent with the federal statute

i) The state law imposes requirements beyond what the Congress has imposed and under the

supremacy clause it must yield

b) Slave owner seeking to recapture his slave is in a special situationi) Article IV Section II provides special protection for slaveowners

(1) The capturer doesnt need to go through all the federal procedures because recapturing

slaves is specially protected under the Constitution

(2) No state can qualify, regulate, control, or restrain in any way the slaveholders rights to

seize and recapture his slave in any state


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The constitution itself permitted self help to recover slaves and so a state law cannot impose

requirements beyond what Congress has imposed. Supremacy clause makes state law yield

Dredd Scott v. Sandford (1857)

1) Facts: Scott is a slave in Missouri who travels to Illinois and to Wisconsin area where slavery is illegal.He is suing for his freedom

2) Issue:a) Are slaves citizens?

b) Is the Missouri Compromise legal?

3) Holding:

a) No

b) No

4) Reasoninga) Slaves are not citizens, so they cannot sue because Article 3 Section 2 limits what people can sue

in federal court

i) Even a free black is not a citizen

ii) States can call a person a citizen if they wish but blacks are not citizens within the meaning of

the Constitution

(1) Looking at the creation of the constitution, nobody ever thought a black person could be acitizen of a state (Look in the full brief to see all the proof given for this)

b) Missouri Compromise is illegal because it denies due process of the law in terms of property

i) Slaves are property protected under the Constitution. This applies to inhabitants of theterritories as well.

ii) Thinks he is settling the slavery problem by saying slavery is protected and Congress cant

abolish it in the territoriesCitizenship issue is resolved by the 14th amendment.

Douglass, Is the Constitution Pro-slavery or Anti-slavery?

1) The fact that men go outside of the Constitution to prove it is pro-slavery shows it is not found in theConstitution, where is ought to be

a) No slave holding provisions ever used the words African slave trade, slave representation,

fugitive slaves, or slave insurrections.

i) Slave representation-3/5 clause encourages freedom by giving an increase of 2/5 of political

power to free states

ii) Slave trade-if I t even refers to Africans at all, it is anti-slavery since its abolish was supposed

to be the death of slavery

iii) Slave insurrections-assuming it applies to slave insurrections, an anti-slavery president couldconsider the slavery a source of insurrection, and say there is no security from insurrection

while slavery lasts, and to abolish slavery to obey the Constitutioniv) Fugitive slave provision-it does not even refer to slaves since slaves do not owe any service

because they cannot make a contract

b) Must interpret the Constitutoin in favor of justice and liberty

c) We the people refers to everyone, not just citizens

d) life liberty or property applies to people and would end slavery


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V. The Civil War and the War Power (All applicable sections in the handout)

The Prize Cases (1863)

1) Facts: In April of 1861 Lincoln blockades Confederate ports and authorizes seizures of ships causesupply goods to them. Foreign ship owners sue saying this was beyond Lincolns authority in absence

of a Congressional recognition of a state of war

2) Issue: Is the blockade and seizures constitutional?

3) Holding: Yes4) Reasoning

a) President is bound to accept a challenge of war without waiting for any legislative authority

i) The proclamation of a blockade shows adequate evidence to the court that a state of warexisted that demanded the use of such force as the President deemed necessary

b) Even if it was improper, Congress later declared it was OK

i) So even if the President assumed powers needing the sanction of Congress, this act cured the

defect (retroactively legitimates)

5) Dissenting: No authorization for seizing property in absence of declaration of war by Congress and

statute authorizing seizure

Little v. Barreme (1804)1) Facts: US naval officers capture a Danish ship believing it is violating the non-intercourse act which

prohibited any American ship from going TO any port or place within the territory of the FrenchRepublic

a) President misinterpreted the act and ordered the Captain to seize American ships sailing FROM

French ports as well.

2) Issue: is the captain liable for damages to the Danish ship even though he was ordered by the

President?

3) Holding: Yes

4) Reasoning: The instructions by the president cannot change the nature of the transaction, or legalize an

act which without those instructions would have been trespass

Youngstown Sheet and Tube Company v. Sawyer (1952)

1) Facts: Truman orders the Secretary of the Treasury to seize the steel mills and operate them in the

name of the US. This is because the United Steelworkers of America give notice that they plans to

strike and steel is necessary for war. Congress takes no action here and the companies file suit

claiming seizure violates the constitution

2) Issue: Is the Presidents seizure of private property unconstitutional?3) Holding: Yes


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4) Reasoning:

a) Blacks Majority

i) There is no statute which expressly or implicitly authorizes the president to take possession of

property

ii) Cannot be sustained as an exercise of military power because it has nothing to do with wariii) Cannot use commander and chief because it has nothing to do with the military

iv) Congress has not said it is ok for the president to do this as they did in the Prize Casesb) Frankfurter Concurring

i) The Labor Management Relations Act of 1947 basically says the president cannot seize

c) Douglas Concurring

i) Emergency does not create a power

ii) Need congressional ratification for seizure to be lawful

iii) President can only recommend legislation and execute laws by congressiv) President can act without express statutory or Constitutional authority as long as he does not

usurp the powers of another branch

(1) The seizure deals with expenditure of federal funds which usurping Congresss spending

power

d) Jackson Concurring

i) 3 Zones of Presidential authority

(1) President acts pursuant to an express or implied authorization of Congress-maximum

authority(2) President acts in absence of congressional grant or denial of authority-twilight zone

where distribution is uncertain(3) When president takes measures incompatible with the expressed or implied will of

congress-lowest power

(a) This is what is happening here because Congress not left it as an open field but has

covered it with statutes

e) Dissenters

i) Temporary seizure is justified because of the emergency nature of the situation, and in order

to preserve temporarily the status quo until Congress could act


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VI. Emergency and Civil Rights

Ex Parte Merryman (1861)1) Facts: In 1861 Lincoln suspended Habeas Corpus. Troops arrest Merryman for participating in

destruction of bridges in anti-war riot in Baltimore. Merryman brings habeas corpus2) Issue: Can Lincoln do this?

3) Holding: No

4) Reasoning: The president cannot suspend habeas nor authorize any military officer to do so under theConstitution. Only congress can suspend the writ of habeas. Article I where the suspension clause is

listed applies to legislative powers. So it requires congressional authorization.

a) Congress cannot suspend unless in an emergency

Ex Parte Milligan (1866)

1) Facts: Milligan and other critics of the war are arrested in 1864 with planning an armed uprising to

seize union weapons, liberate Confederate POW, and kidnap the governor of Indiana. The trial goes

before a military commission. The habeas petition claims trial of crimes must be by jury trial in courtas stated in Article III Section II.

2) Issue: Is military commission constitutional here?

3) Holding: No

4) Reasoning:

a) If courts are closed and it is impossible to administer criminal justice according to law, and no

power is left but the military, military commissions are acceptable

i) But here, the commission lacks jurisdiction because Congress has not authorized and becausethe courts are open.

Ex Parte Quirin (1942)

1) Facts: Nazi saboteurs were charged with violating laws of war. One claims U.S. citizenship.

Roosevelt issues an order creating military tribunals sentencing him to death.

2) Holding: Supreme Court upholds.a) Article 15, Congress has authorized creation of military tribunals to try offenses against the law of

war

b) Under the law of war, while lawful combatants must be detained as prisoners of war, unlawfulcombatants are subject to trial and punishment by military tribunals

c) Not entitled to criminal jury trials because not crimes within article III Section 2.

d) Citizenship does not alter this

e) Milligan is inapplicable because he was not an enemy belligerent since he was not a member of

armed force of confederate states


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Because they are unlawful combatants, they are not entitled to be treated as prisoners of war. They

are not criminal defendants either and if they were then they would get a jury trial.

Hamdi v. Rumsfeld

1) Facts: Hamdi is an American citizen who is apprehended in Afghanistan and brought to GuantanamoBay. It is discovered he was an American citizen there and he was taken to SC. Government says he

is an enemy combatant (affiliated with Taliban) and that justifies holding him indefinitely withoutformal charges or proceedings. Hamdis father says the detention violates the Non-Detention Act anddue process since he was not a combatant, just doing relief work

2) Issue:

a) Does the president have authority to hold an American citizen apprehended in a foreign country as

an enemy combatant?

b) Must any due process be accorded to him?

3) Holding:

a) Yes

b) Yes4) Reasoning:

a) Congress has authorized the detention for duration of war pursuant to the Authorization ofMilitary Force Act passed after 9/11

i) Detention of lawful and unlawful combatants is fundamental to war and provided for in laws

of war to prevent return to battlefield. So it is provided for in the part of the act which

authorizes president to use all necessary and appropriate force against nations, organizations,

or persons

b) At some point, prolonged detention might be inconsistent with AUMF (only for duration ofconflict)

c) Habeas corpus is not suspended so petition is proper

d) Due process requires a balancing of the government interest and citizens interesti) Hamdi is entitled to notice of the factual basis for his classification, access to counsel, and a

fair opportunity to rebut the governments factual assertions before a neutral decision maker

ii) Though other protections might be curtailed like hearsay and burden of proof on thedefendant may be allowed

If a U.S. citizen is to be held as an enemy combatant, he is entitled to due process, including at a

minimum the right to counsel and the right to go before a neutral decisionmaker to challenge hisdesignation as an enemy combatant

Also shows that even at war, the court will not allow the executive branch to dispense with basic due

process requirements when imprisoning its own citizens

e) Various possibilities including military tribunal exist5) Souter Concurring: Congress has not authorized in the AUMF. It authorizes military power, not

detention power. The Non-Detention Act requires a clear congressional authorization for detention

6) Scalia Dissenting: with respect to US citizens held in the US, unless habeas corpus suspended, he must

be prosecuted in a criminal court for treason or released

Rumsfeld v. Padilla (2004)

1) Facts: Padilla is a US citizen who is arrested at an airport after a flight from Pakistan. He is accused of

planning to detonate a dirty bomb. The US was detaining him as an enemy combatant in South

Carolina. He files a habeas petition in NY, which does not have jurisdiction because a habeas petitionmust be brought where he is being detained. So he files in SC after.

2) Issue: Can the government detain an American citizen as an enemy combatant?

3) Holding:

a) District Court holds the president has no authority to detain Padilla, his detention is unlawful, and

the government must either charge him with a crime or release him

b) Fourth circuit reverses, relying on Hamdi, and holds that the AUMF permits the President to

designate an American Citizen captured on American soil as an enemy combatant: and to detainhim militarily.


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c) Padilla seeks Supreme Court review but in the interim a Miami grand jury indicts him on chargesof conspiracy to murder. Supreme Court allows transfer of Padilla to Florida. He has pled not

guilty to criminal charges in Miami.

Rasul v. Bush (2004)

1) Facts: Kuwaiti and Australian detainees are held in Guantanamo after being captured in Afghanistan.

They file habeas corpus.2) Issue: Can detainees of Guantanamo have their writs of habeas heard in federal court?3) Holding: Yes

4) Reasoning: They have a right to bring habeas petition under the habeas statute which Congress has

authorized. They are not nationals of a country at war with the U.S., they deny aggression against the

U.S., they are not charged with any wrongdoing, and they are imprisoned in a territory where U.S. has

exclusive jurisdiction.

5) Response: Congress removes the habeas jurisdiction for individuals held in Guantanamo in the

Detainee Treatment Act of 2005

Hamdan v. Rumsfeld

1) Facts: Hamdan is a Yemeni national and former driver for Bin Laden captured during war againstTaliban and transported to Guantanamo. He was scheduled to be tried before a military commission.

The military commissions would give much less protection to defendants than they would get if theywere tried by a court martial conducted under the rules set out in a federal statute called the UCMJ.2) Issue: Is military commission justified?

3) Holding: No

4) Reasoning: The Military Commission lacks power to proceed because it violates the Uniform Code of

Military Justice and the Geneva Conventions

a) Military commission is available for enemy occupied territory, martial law declared, or violationsof laws of war

i) He has not violated laws of war and there is no military necessity which is a basic

precondition for establishing military commissions

b) UCMJ says the commission procedure should be the same recognized in the trial of criminal casesin the US unless impracticable, which it has not been proven to be.

c) Geneva Conventions say he must be tried in a regular court affording all the judicial guarantees

recognized as indispensable by civilian people.i) The military commission was not a regularly constituted court unless it either applied standard

court martial practices or there was some practical need that explained why standard courtmartial practices could not be used

Korematsu v. United States (1944)

1) Facts: Order 34 stated that all persons of Japanese Ancestry were to be removed to detention camps

2) Issue: Is this constitutional?

3) Holding: Yes

4) Reasoning:

a) There is a compelling need to prevent espionage and sabotage and there was no practical andsufficiently rapid way for the military to distinguish between the loyal and the disloyal

i) Exclusion necessary because of the presence of an unascertained number of disloyal members

b) The camps are not about race but about warc) Who are we to question the needs during wartime?

5) Murphy Dissent: The test of whether constitutional rights can be deprived is based on whether it isreasonable. It must be so immediate, imminent, and impending as to not admit delay and not permit

ordinary constitutional procedures to alleviate the danger. The test has not been met

a) No evidence of disloyalty and no proof the situation was not well in hand

6) Jackson Dissent: Cannot expect the military to abide by the Constitution during times of war. But once

we recognize this order as constitutional, we have validated racial discrimination.


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Legal Tender Cases (1870)

Hepburn v. Griswold (1870): Holds Congress lacked the power to make paper money legal tender for debts

pre-existing the 1862 Act.

Knox v. Lee (1871): The 1862 legal tender legislation was Constitutional both as to pre-existing andsubsequent debts

Julliard v. Greenman (1884): Holds that Congress could issue legal tender notes in peacetime whether out

of necessity or convenience. It is a political question to be determined by Congress as to whether this is a

wise and expedient decision, not a judicial decision.

Holdings are troubling in Knox and Julliard as the courts seem to disobey the original intention of the

Constitution and do not respect individual property rights concerns.Cases stand for the broad reading of congressional power in particular with respect to the power to

regulate currency

VII. Reconstruction

Reconstruction Amendments and Privilege and Immunities of National Citizenship

The Slaughterhouse Cases (1873)

1) Facts: 1869 Louisiana statute granted a monopoly to the Crescent City Slaughter House Company.The statute forces all butchers to work at the Crescent City facility or give up their trade. Plaintiffs

argue that it was a denial of the privileges and immunities of Louisiana citizenship, including the right

to practice ones calling. Legislature claims it is for health reasons.

2) Issue:

a) Is this constitutional under the 13th amendment?b) Is this constitutional under the 14th amendment?

3) Holding

a) Yes

b) Yes

4) Reasoning

a) Does not violate the 13th because the purpose of the 13th was freedom of the slave race andprotection of these freedman from the oppressions of those who had formerly exercised dominion

over them. 13th does not deal with this type of situation

b) Does not abridge the privileges and immunities of citizens of the United Statesi) The privileges and immunities clause speaks of rights of United States citizens

(1) This is a limited protection. States must only guarantee rights such as protection,

happiness, safety, right to acquire and possess property because these are things protectedby virtue of U.S. citizenship and the state cannot abridge your rights of national

citizenship.(a) Right to labor is not something protected by privileges and immunities

c) Does not violate equal protection because equal protection clause was made to preventdiscrimination and laws against former slaves

d) Does not deprive a butcher of his property because the Company is required to permit any person

who wishes to slaughter in their house


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14th amendments privilege and immunities clause merely forbade state infringement of the rights of

nationalcitizenship, not the rights of state citizenship. The restraint upon the peoples trade simply

cannot be held to be a deprivation of property within the meaning of the 14th amendment.

5) Dissenting-Field

a) This act is not an appropriate use of the police power to protect the health as the only provisionsdealing with health are that slaughter be done below the city and inspection of animals before

slaughteri) It is an act to grant a corporation where the health of the city is not promoted

b) Privileges and immunities are being invaded by this monopoly because they encroach upon the

liberty of citizens to acquire property. The privilege of engaging in any lawful employment is

being denied

Bradwell v. Illinois (1873)

1) Facts: The Illinois Supreme Court refused Bradwell a license to practice law solely because she was awoman. She argues that practicing law was a privilege of citizenship protected under the privileges

and immunities clause of the 14 th

2) Issue: Does this violate the 14 th privileges and immunities?3) Holding: No

4) Reasoning:

a) The right to profession is not protected under the 14th

amendment as a privilege of citizenshipi) The right to practice law in the courts of a state in no sense depends on citizenship

b) The privileges and immunities clause was very limited and in no sense depends on citizenship of

the US

5) Bradley-Concurringa) Not a privilege of women that they as citizens can engage in any profession

i) It is the responsibility of the state to prescribe regulations using their police power to limitroles of women. By nature of her characteristics and her mission it is within the right of thestate to ordain what offices, positions, and calling she can fill

Minor v. Happersett (1874)

1) Facts: In 1872 Minor attempted to register to vote in St. Louis. She sues for relief arguing women

possessed a constitutional right to vote

2) Issue: Can voting rights be litigated under the 14th amendment?3) Holding: No

4) Reasoning

a) Voting rights cannot be litigated under the 14 th amendment

i) Women were already citizens and so the 14 th amendment did not alter their rights of votingii) Voting is not included in the privileges and immunities of citizens

(1) If it was, then there would be no reason for the 15th amendment

Reconstruction Amendments and Race

A classification will not be deemed to be suspect and therefore subject to strict scrutiny, unless the court

finds that there was a legislative intentto discriminate against the disfavored group. 3 ways to showpurpose:

Law discriminates on its face by explicit terms

Strauder falls under this

Law, although neutral on its face, is administered in a discriminatory way

Law, although it is neutral on its face and is applied in accordance with its terms, was enacted with a

purpose of discriminating

Strauder v. West Virginia (1880)1) Facts: Strauder, a black man, was convicted of murder in a state court by a jury from which blacks

were excluded by West Virginia statute.

2) Issue: Can state laws exclude blacks from the jury?


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3) Holding: No

4) Reasoning

a) The WV statute is unconstitutional because it violates the equal protection clause of the 14th

amendment

i) The equal protection clause was created to protect blacks from unfriendly action in the states,

to prevent discrimination based on their race, and give blacks equal enjoyment of all the civil

rights enjoyed by whitesb) A man cannot be forced to submit to trial for his life with a jury which expressly excludes every

man of his race

i) So the legal process is not equal to him and he is not being equally protected under the lawEqual protection was created with intent to protect ex-slaves. The 14th was adopted to ensure that

blacks have the same civil rights enjoyed by whites and to make sure that the habitual

discriminations against them were not perpetuated by state law even after the civil war.

5) Dissent-Field

a) Equal protection of the laws addresses civil rights but l eaves political rights aside

i) Political rights are withheld because their possession depends on fitness

Plessy v. Ferguson (1896)

1) Facts: Louisiana statute requires railroads carrying passengers within the state to provide equal but

separate accommodations. Plessy is of mixed race (1/8 black, 7/8 white). He attempts to sit in a coachreserved for whites and is forcibly ejected and imprisoned2) Issue:

a) Does the statute violate the 13th amendment?

b) Does the statute violate the 14th amendment equal protection clause?3) Holding:

a) No

b) No4) Reasoning

a) The 13th amendment deals with servitude, bondage, ownership of man, or the control of labori) This has nothing to do with slavery because it does not attempt to destroy the legal equality of

the races and reestablish slavery

b) Does not violate the equal protection clause of the 14th amendment because it is not taking anyrights away or preventing anyone from doing something

i) The 14th was created to enforce equality between the races before the law, but not to providefor social equality

ii) The law does not imply the inferiority of any race

(1) Valid police power in terms of protection of comfort and public peace5) Dissenting-Harlan

a) Although it appears facially neutral, everyone knows that it had its origin in the purpose, as to

exclude blacks from coaches occupied or assigned to whites. So the statute interferes with the

personal freedom of blacks

b) Our constitution is color blind

Civil Rights Cases (1883)

1) Facts: The Civil Rights Act of 1875 provides that all persons within the U.S. shall be entitled to the fulland equal enjoyment of all places of public amusement Consolidated cases arise as a result of theexclusion of blacks from inns, theatres, and railroads on account of race. Congress says the 14th

amendment gives them this power

2) Issue: Is the Civil Rights Act Constitutional?

3) Holding: No

4) Reasoning

a) The 13th amendment applies to private conducti) Prohibits people from being or owning slaves


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ii) This act has nothing to do with slavery or involuntary servitude (narrow view)

b) The 14th amendment only applies to government action and cannot be used to regulate privateconducti) So it must be the state doing the acting and only provides redress against the operation of state

laws and the actions of state officers

c) 3 Holdings

i) 13th addresses private people, but does not empower congress to prohibit most raciallydiscriminatory practices other than involuntary servitude(1) Racial discrimination is not a badge of servitude

ii) 14th does not empower congress to forbid discrimination by private persons

iii) 14th does reach state power5) Harlan-Dissenting

a) The 13th amendment gave congress the power to eradicate not only the institution of slavery butthose badges of slavery

b) Under the 14th amendment, legislation can operate upon individuals and corporations that exercisepublic functions and wield power and authority under the state

i) Railroads, inns, and public amusement places all relate to the state and are covered

VIII. The Age of Lochner

1) Legacy of Lochner

a) From 1890-1904 the Supreme Court invalidated about 200 laws that interfered with the rights ofliberty, contract, etc.

b) Seen as a period of too much judicial scrutiny of legislative programs

i) Interfering with things the legislative has better judgment to doc) 1929 market crashes and all types of new deal legislation is created

i) 1935 the court strikes down many programs for exceeding power

ii) 1936 invalidates more things

iii) 1937-Roosevelt plans court packing plan where he would put people in court who will

support him

(1) Court backs down when they hear this

Due ProcessLochner v. New York (1905)1) Facts: New York law says no employee shall work in a biscuit, bread, or cake bakery or confectionary

establishment for more than 60 hours in one week or more than 10 hours in one day. The statute was

created as a general welfare statute to protect bakers and bread. Lochner is convicted of employing a

baker in excess of 60 hours worked.

2) Issue: Does the law violate the due process clause of the 14th amendment?3) Holding: Yes

4) Reasoning:


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a) Violates the due process clause of the 14th amendment because it interferes with freedom ofcontract, which is something recognized under liberty in the due process clause

i) So this is violating the deprivation of liberty without due process of the law

(1) Government can only interfere with freedom of contract to serve a valid police purpose(a) Police power extended only to protection of the public welfare

(i) This was not of sufficient public concern especially in view of the laws

infringement of the liberty of contract(ii) No reason bakers as a class needed such special protection

(b) Not a safety or health measure as bakers are not an especially endangered group

b) The role of the judiciary to carefully scrutinize legislation interfering with freedom of contract

Strict due process scrutiny is used by a court where a fundamental interest is at stake. The court

treats the freedom of contract as a fundamental interest so the state interest had to be subjected

to a strict scrutiny rather than a minimal rationality review. Therefore, the government could

interfere with freedom of contract only to serve a valid police purpose of protecting public health,

public safety, or public morals and the judiciary would carefully scrutinize legislation to ensure that

it truly served such a police purpose.

Coppage v. Kansas: court sees interference with the normal exercise of personal liberty and property rights

as the primary objective of the statute, not to advance the general welfare

Baltimore and Ohio Railroad Company v. Interstate Commerce Commission: court upheld limitations onthe hours of railroad employees saying there is a direct relationship between hours worked and efficiencyof the employees. Need this to help protect life and property (More important interests)

Muller v. Oregon: Court upheld a statute placing limitations upon womens contractual powers and upon

her right to agree with her employer as to the time she shall work. The special weaknesses and needs of

women and the extra protection which a 10 hour maximum work day would give them are of great enough

public concern to infringe upon freedom to contract.

Commerce Power and National Economy

Champion v. Ames (1903)

1) Facts: An 1895 Congressional Act prohibited sending lottery tickets through mail or from one state to

another by any means. Appellants were indicted for conspiring to transport lottery tickets by railroad.

2) Issue: Is this a proper use of the commerce power?

3) Holding: Yes

4) Reasoning:

a) The power to regulate interstate commerce includes the ability to prohibit items

b) Lottery tickets are an item of commerce because the tickets have value and someone will winmoney

c) Does not violate the 10th amendment because it does not prohibit anything exclusively within thestate

d) Congress has plenary power to prohibit such commerce because it is the only government power

capable of protecting the public from the evils of interstate commerce

Hammer v. Dagenhart (1918)

1) Facts: A federal law prohibits the shipment for 30 days in interstate commerce of goods produced in

factories that employed children under the age of 14 or that employed children between 14-16 for morethan 8 hrs per day or 6 days per week, or after 7pm or before 6am. Intended to create an incentive to

states to change rules on labor law

2) Issue: Is this a proper use of the commerce power?

3) Holding: No

4) Reasoning

a) The act is really a regulation of labor conditions and not of commerce

i) The law is not concerned with the products but only of the working conditions since theproducts themselves are harmless

ii) Manufacturing is purely local, and not subject to the congressional commerce power


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b) The regulation of working hours is a police power and Congress has no police power

c) Different from Champion because in that case the thing in commerce was evil, but here the goodshipped in commerce were harmless and it was only employment of child labor which was an eviland this employment was not directly related to interstate commerce

Says that the commerce power cannot regulate production. This act did not really deal with

interstate commerce so much as it regulated child labor.

Bailey v. Drexel Furniture

Congress imposed a tax on any mill hiring child labor since the commerce clause cannot be used to limit

child labor underHammer. The court strikes it down since it is really not a tax. It is an attempt to regulate

child labor which was already prohibited underHammer

Categorical distinctions made by the court which disappear post 19371) Manufacture v. Commerce

a) Just because something is manufactured for export does not make it inter state commerce

2) Direct v. Indirect

3) Harmless v. Inherently dangerous

4) Not in flow v. In Flow

U.S. v. Butler (1936)1) Facts: The Agricultural Adjustment Act of 1933 sought to stabilize production in agriculture byoffering subsidies to farmers to limit their crops.

2) Issue: Does this violate the 10 th amendment?3) Holding: Yes4) Reasoning

a) This violates the 10th amendment because no power to regulate agricultural production is in theConstitution and it is left to the statesi) Congress cannot attain a prohibited end by using power which are granted like spending

b) More importantly, Congress has a broad power to tax and spend for the general welfare so long asit does not violate other constitutional provisions. But it does not have the power to regulate for

the general welfare.

Congress may not regulate in a particular area merely on the ground that it is thereby providing for

the general welfare. It is only taxing and spending which may be done for the general welfare.Because Congress could not directly regulate agricultural production, it also could not coercively

purchase compliance with a regulatory scheme

Missouri v. Holland

1) Facts: A treaty was signed in 1916 between the US and GB. The Migratory Bird Treaty Act of 1918and subsequent regulations were issued intended to enforce that treaty. The treaty intends to protect

migratory birds by preventing the killing, capturing, or selling of the birds. Missouri asserts it is

unconstitutional because it interfered with the reserved rights under the 10th amendment

2) Issue: Does this violate the 10 th amendment?3) Holding: No

4) Reasoning

a) The 10th amendment protects state interestsi) This is a national interest involved since the birds are traveling across various states. The

birds are only transitorily within the state and have no permanent habitat thee.

(1) So it is insufficient to rely upon the states

b) Congress has a right to make treaties and if the treaty is valid then the statute is valid as a

necessary and proper means to execute the powers of the government

The power to ratify treaties is in effect an enumerated legislative power, so even though a subject

area might not otherwise be within congressional control, if it falls within the scope of an otherwise

valid treaty, it will be valid as a necessary and proper means of exercising the treaty power. So it


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will be binding on the states, under the Supremacy Clause. But a treaty may not violate any distinct

constitutional prohibitions or guarantees

IX. The Modern Era

The New Deal

Nebbia v. New York (1934)

1) Facts: Nebbia is a storekeeper who is convicted for selling milk below the minimum retail price fixed

by the NY Milk Control Board. The prices are set to help the depressed state of farmers

2) Issue: Does this violate due process of the 14th amendment?3) Holding: No

4) Reasoning:

a) The guaranty of due process demands only that the law shall not be unreasonable, arbitrary, orcapricious and that the means selected shall have a real and substantial relation to the object

sought to be attained. This is not unreasonable

i) A state is free do adopt whatever economic policy may reasonably be deemed to promote

public welfare, and to enforce that policy by legislation adapted to its purpose

Price control is constitutional where it is nondiscriminatory and bears a reasonable relation to a

proper legislative purpose. Although the use of property and the making of contract are basic rights,

they are not absolute, and not necessarily free from governmental interference.


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This case represents a marked shift from the Lochner era and judicial intervention over states

economic regulation. The opinion demonstrates a significantly relaxed approach to evaluating what

ends are legitimate. A state is free to adopt any economic policy that promotes public welfare, as

long as the policy is not arbitrary or discriminatory.

Home Building and Loan Association v. Blaisdell (1934)

1) Facts: Minnesota enacted a law out of an emergency measure to grant temporary relief from mortgageforeclosures and execution sales of real estate. The applicable section authorized a court to prevent

foreclosures of homeowners mortgages for a two year period even though the mortgage holders had a

contractual right to foreclose due to failed payments.

2) Issue: Does this law violate Article 1, Section 10, Clause 1 which says no state shall impair the

obligation of a contract?

3) Holding: No4) Reasoning

a) The prohibition of state interference with contract is not an absolute prohibition

b) The legislation is not struck down unless the conditions of it are unreasonable and it alters asubstantial right secured in the contract

i) This is an emergency which makes it more reasonableii) It only has a temporary effect

iii) The regulation benefits both sides

iv) Foreclosure would ultimately be restored

v) Interest would continue to run

c) The fact that it is for the overall public welfare helps it get past Locher

i) Aimed towards a legitimate end

ii) For vital public needs

An exception to the Contract Clause is that debtors obligations may be modified where a vital public

interest, especially economic emergency, so demands

The due process clause has been held to put the same restrictions on the federal government in terms

of contracts

West Coast Hotel Co. v. Parrish (1937)

1) Facts: A law set the minimum age for women employees. Opponent says it is a deprivation of freedom

to contract.2) Issue: Does this violate the due process for liberty

3) Holding: No

4) Reasoning

a) Regulation which is reasonable in relation to its subject and is adopted in the interests of thecommunity provides adequate due process. There is a great concern of womens inferior

bargaining power.

i) These laws can interfere with libertyOverrules Atkins and says that a state may impose minimum wage on employer-employee contracts

Judicial Scrutiny

U.S. v. Carolene Products (1938)

1) Facts: The Filled Milk Act prohibited the shipment in interstate commerce of certain type of milk.Appellee was indicted for shipping milk which violated the statute.

2) Issue: Does this violate the 5 th amendments due process clause?3) Holding: No4) Reasoning

a) Economic regulations should be upheld so long as they are supported by a conceivable rational

basis, even if it cannot be proved that it was a legislatures intent

i) There is much evidence of the danger to the public health of the consumption of the milk

which has been prohibited


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b) Courts generally should presume that laws are constitutional

i) More searching judicial inquiry is appropriate when it is a law that interferes with

individual rights or a law that discriminates against a minorityThe existence of facts supporting the legislative judgment is to be presumed, for regulatory

legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional

unless it is of such character as to preclude the assumption that it rests upon some rational basis

within the knowledge and experience off the legislatures. This test might be called a minimum

rationality standard coupled with a presumption of constitutionality

Williamson v. Lee Optical Co. (1955)

1) Facts: An Oklahoma law made it illegal for any person other than an optometrist or ophthalmologist tofit eyeglass lenses or to duplicate or replace lenses except with a written prescription from an

optometrist or an ophthalmologist. So opticians were precluded from fitting new lenses into old

frames or supply duplicate lenses without a prescription

2) Issue: Is this law unconstitutional under the due process clause of the 14 th amendment?3) Holding: No

4) Reasoning

a) Laws regulating businesses will only be subject to a rational basis review and courts need not

contemplate all the possible reasons for legislation

b) It is up to the legislature not the courts to balance the advantages and disadvantages of the newrequirementi) It is enough that there is some rational relationship between the legislation and the evil

(1) There are many hypothetical reasons why the legislature could have introduced thislegislation and it should be assumed there was a rational connection unless it appearsotherwise

A minimum rationality test for social and economic regulation. The infringement on liberty had to

be rational. It is for the legislature, not the courts, to balance the advantages and disadvantages of

the requirement of minimum rationality. A further abandonment of scrutiny fromCarolene

Case illustrates the nearly complete abdication of the lochner era judicial intervention into state

economic regulation.

Nordlinger v. Hahn: Court showed this deferential approach to issues of economic regulation. The lawgave lower taxes to people who had held the property longer. The court shows there is an interest indiscouraging the rapid turnover of homes and keep mom and pop businesses in place and also it is

rational to protect older owners who are already invested in the property.

X. The Rise of National Power

Commerce

1) The court expanded the reach of the Commerce clause power by recognizing three theories upon whicha commerce based regulation may be premised:

a) Substantial economic effect (Darby/NLRB)

b) Cumulative effect (Wickard)

c) Commerce prohibiting protective technique

NLRB v. Jones and Laughlin Steel Corp. (1937)

1) Facts: The National Labor Relations Act of 1935 prohibited employers from engaging in any unfairlabor practice affecting commerce. Defendant was charged with interfering with the rights of

employees to organize and bargain collectively in a steel manufacturing plant. He was firing

employees for union activity

2) Issue: Is this proper commerce clause power?3) Holding: Yes


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4) Reasoning

a) When activities have such a close and substantial relation to interstate commerce that their control

is essential or appropriate to protect that commerce from burdens, Congress cannot be denied the

power to exercise control

b) Even though the activities are intrastate in character, when separated, they have interstate affects

c) Stoppage of the manufacturing operations by industrial strike would have affects on interstate

commerce since the company had mines I other states, ships in the Great Lakes, warehouses infour states, and sent 75% of its product out of statei) So it would have a substantial effect on interstate commerce

Creates the idea that it is irrelevant whether the activity being regulated occurs before, during or

after the interstate movement. So long as the regulated activity has a substantial economic effect

upon interstate commerce, the activity can be reached by congress. As long as it has a close and

substantial relation to interstate commerce.

U.S. v. Darby (1941)

1) Facts: Fair Labor Standards Act of 1938 prescribed minimum wage and maximum hours foremployees engaged in the production of good related to interstate commerce.

2) Issue: Is this proper exercise of the commerce power?3) Holding: Yes

4) Reasoning:

a) Basically overrules Hammer

b) As long as there is a sufficient relationship of the regulation to interstate commerce, the motive

doesnt matter. In other words, Congress power extends to those activities intrastate which so

affect interstate commerce.

c) The employees engaged in production of goods for interstate commerce is so closely related to the

commerce and so it has to be within the reach of Congress to regulate it10th amendment will no longer act as an independent limitation on congressional authority over

interstate commerce. Congress is free to impose whatever conditions it wishes upon the privilege of

engaging in an activity that substantially affects interstate commerce, so long as the conditions

themselves violate no independent constitutional provision.

Wickard v. Filburn (1942)-The aggregate affect of commerce may be regulated

1) Facts: Agricultural Adjustment Act of 1938 penalizes a farmer for growing in excess of his allotment.

Defendant grew a surplus but claims it is intended wholly for the consumption of his far and not forsale. So it does not have an interstate relationship.

2) Issue: Can congress reach this through the commerce clause?

3) Holding: Yes

4) Reasoning:

a) Even if a defendants conduct is local and not regarded as commerce, it can be reached by

congress if it exerts a substantial economic effect on interstate commerce

i) Defendants act taken with many others similarly situated will greatly affect interstatecommerce. Growing homegrown wheat would affect prices

b) Not necessary that the particular person or entity being regulated have a substantial effect on

commerce. Only required that looked at cumulatively, his activity has an effect

c) Protection of the interstate commercial trade in wheat clearly falls within the commerce power,and the regulation of home-grown wheat is reasonably related to protecting that commerce

Heart of Atlanta Motel v. United States (1964)

1) Facts: Title II of the Civil Rights Act prohibited discrimination by places of public accommodation.

This motel is located in downtown Atlanta and 75 percent of its guests were from out of state. Thehotel refuses to allow blacks

2) Issue: Can this hotel be regulated under the commerce clause?

3) Holding: Yes

4) Reasoning

a) The discrimination affects interstate commerce


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b) Even though the hotel is of local character, it affects interstate commerce and so its local operation

is not important

Court is not troubled by the fact that commerce motive is not purely economic but really moral and

social. As long as it has an interstate commerce affect

Katzenbach v. McClung (1964)-commerce power reaches local business supplied by interstate suppliers

1) Facts: Ollies BBQ, a family down restaurant in Birmingham, was located 11 blocks from an interstatehighway. Almost half the food procured by the restaurant consisted of meat which originated from out

of state.

2) Issue: Can congress regulate this restaurant through the commerce clause?

3) Holding: Yes

4) Reasoning

a) The business affects interstate commerce so it can be regulatedi) Discrimination of customers means the place sells less food which means it buys less food

from out of state producers.

ii) Interstate travel is obstructed by this because discrimination discouraged travel.iii) Discrimination here deterred profession and skilled people from moving into the area and

caused industry to be reluctant to establish thereReturns to Wickarda bit because even though Ollies itself was small, and the value of the food had

an insignificant affect on commerce, the restaurants discriminatory conduct was representative of a

great deal of similar conduct throughout the country and this conduct in the aggregate clearly had an

effect on interstate commerce

Daniel v. Paul (1969)

1) Facts: The Lake Nixon Club was a 232 acre amusement park area.

2) Issue: Can congress regulate this through the commerce clause?3) Holding: Yes

4) Reasoning:

a) The snack bar in the amusement park sold food that had moved in interstate commerce.

i) The wheat for the buns was made from out of state.

ii) The club advertised magazines which were distributed to guests in hotels and restaurants who

were interstate travelers so it affected them.

Perez v. United States

1) Facts: Perez lent money to Miranda and exacted large paymets from him under threats of injuring himand his family. He violates the Federal Consumer Credit Protection Act for engaging in extortionate

credit transactions.2) Issue: Can congress reach this through the commerce power?

3) Holding: Yes4) Reasoning:

a) Organized crime is interstate and international in character and a significant portion of the income

generated by organized crime is through these extortionate credit transactions.

i) So even where the credit transaction is intrastate, it affects interstate commerce

Taxing and Spending

Steward Machine Company v. Davis (1937)

1) Facts: The act established a national taxing structure designed to induce states to adopt laws forfunding and payment of unemployment compensation. Petitioner argues the law coerces states into

establishing unemployment compensation programs.

2) Issue: Does this violate the 10 th amendment?3) Holding: No

4) Reasoning:

a) Distinguishable fromButlerbecause there is no surrender of power by the state that is essential totheir existence


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i) States are given wide range of judgment to the particular statute to be created

b) The tax did not coerce the states. It is tempting them.Shows how you see the 10th amendment really disappear as a limitation of what congress can do

through its taxing and spending power

Reconstruction Powers

South Carolina v. Katzenbach (1966)1) Facts: The Voting Rights Act of 1965 empowered the attorney general to suspend literacy tests and

other restrictions on voting in the states where less than 50 percent of the citizens had voted or were

registered to vote. Aimed at banishing racial discrimination at the polls.

2) Issue: Is this constitutional under the 15th amendment?3) Holding: Yes4) Reasoning

a) Lassiter v. Northhampton County Bd. Of Elections (1959) the court said literacy tests were notcontrary to the 15th amendment

b) Clause 2 of the 15th amendment gives Congress the power to enforce the Constitutional prohibitionagainst racial discrimination in voting

i) The Act was a legitimate response to the obvious discrimination

ii) Case by case litigation was inadequate to combat widespread voting discriminationAny rational means could be used to enforce the 15th amendments ban on racial discrimination in

voting. Shows that Congress under Section 2 of the 15th amendment is permitted to outlaw practices

which the court would not on its own find to violate section 1 of that amendment. Let the ends be

legitimate and means not prohibited and it is ok. The fact that the remedies are specific and limited

show that it is a rational.

Katzenbach v. Morgan (1966)

1) Facts: Section 4(e) of the Voting Rights Act of 1965 provided that no person who has completed 6th

grade in a PR school, where instruction was in Spanish, shall be denied the right to vote because of

failing an English literacy requirement

2) Issue: Is this constitutional under the 14th amendment?3) Holding: Yes

4) Reasoning

a) AlthoughLassiterheld that the literacy tests did not violate the 14th amendment equal protection,this doesnt prevent Congress from passing a law if they find that literacy tests are discriminatory

b) 5th section of the 14th amendment granted Congress broad powers like the necessary and properclause

i) It is a positive grant of legislative power authorizing Congress to exercise its discretion indetermining the need for and nature of legislation to secure 14th amendment guarantees.

c) Introduced the "ratchet theory"

i) Congress could ratchet up civil rights beyond what the Court had recognized, but Congresscan not ratchet down judicially recognized rights. The "ratchet theory" essentially set

judicially recognized rights as a support, on which Congress could expand if it so chose.

ii) if congress wants to go further, and expand on what the court has required, it is ok

Even though the SC held that a literacy test does not violate equal protection, Congress can look at ititself, and can go beyond the courts own interpretation of what the court required because congress

has broad remedial powers under the 14th. However, Congress can only grow in one direction but

cannot reduce the rights granted

Jones v. Alfred H. Mayer Co. (1968)

1) Facts: Suit filed under 42 USC 1982 based on housing discrimination.

2) Issue: Is this a proper use of power under the 13th amendment?3) Holding: Yes


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4) Reasoning:

a) Congress can legislate the acts of private individuals under the 13th amendmentb) Section 2 of the 13th amendment allows Congress broad power to determine what are the badges

and incidents of slavery and to legislate upon that

i) Congress determined discrimination in the ability to inherit, purchase, lease, sell and convey

property was a badge of slavery

Overrules Civil Rights Cases and the narrow view of badge of slavery. Congress had the right torationally determine what the badges and incidents of slavery are. It was rational to conclude that

barriers to enjoyment of real property were badges of slavery. Greatest deference to Congresss

reconstruction powers that the court has ever displayed

Oregon v. Mitchell (1970)

1) Facts: Congress sought to ban the denial of suffrage on account of age to anyone 18 and older for stateand federal elections. Oregon does not desire to lower its voting age to 18 and say unconstitutional.

2) Issue: Can congress set requirements for voting age in state elections under the equal protection clauseof the 14th amendment?

3) Holding: No

4) Reasoning:

a) Congress can set requirements for voting in federal elections but it does not have the power to set

the voting age in state electionsb) States can set the voting ages in for state elections

c) Not an equal protection

conlaw dude

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