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244 Cards in this Set

  • Front
  • Back
• Colonial and Revolutionary Era
o No representation in governing bodies
• “virtual representation” deemed insufficient
o No formal Brit constitution to limit gov’t
o Hereditary rule of monarch
o Need Consent of the governed
o America kept getting pulled into European conflicts
o Britain passing economically coercive laws
• Articles of Confederation
o Effected by fears from Colonial/Revolutionary
o States retain independence
o No cohesive unity
o Can’t really wage war
o Each state 1 vote
o Governing occurong through states\states have strangleholsd on govt
o Fed lacks real power
o Very loose judiciary
o States disregard national laws
o States pass bad laws
o States encroach on eachother
o National economy sucks, congress can’t do anything about it
• Federalists
o Support ramification
o Publius (Madison, Jay, Hamilton)
o Want to improve on articles; better gov’t => better way of life
o Pro National Power, anti B.O.R.
o “considered most important US poli-sci thought ever”
• Anti-Federalists
o Opposed ratification
o Brutus, Federal Farmer, Centenial
o Considered Const. betrayal of Decl of Ind.
Alexander Hamilton
o Defense, finance, judiciary, presidency
o Pragmatic
o Feared gov’t w/o enough power
James Madison
o Interrested in History, Political Theory
o Legislative
o More philpsophical
o Fears gov’t w/ too much power
• Virtue by Design
o Goal= good govt
• Public minded outcomes
• Triumpj of public over private
o Problem
• People inherently self interested
o Solution
• Control the effects of factions, not eliminate them (that would be fruitless.
• Republic over Democracy
• Big, not small government
• Bring in as many diverse interests as possib;e
• Prevents one from dominating
• Don’t need great leaders, just great system
• Will fight and not let eachother dominate
• Hamilitonians
o New England
o Favor ratification
o Later became Federalists
o Want quick alliance w/ England
o Want nation of merchants
o Strong central Gov’t
• Jeffersonians
o Prefer France- more democratic
o Want steady agricultural economy
o Want weak Cent. Gov. that yields to states.
• 1798 Alien and Sedition Acts
o Prez can deport aliens in time of war
o Allowed punishment of dissent
o Dem-Reps hate this
• 1798 Virginia and Kentuckey Resolutions
o States have right to protect their citizens from Unconstitutional Laws
o Interposition: State places itself btwn ppl and law
o Nullification: void law w/ in its borders
o Secession : can leave union if don’t like it
o Interposition
: State places itself btwn ppl and law
o Nullification
States can void law w/ in its borders
o Secession
can leave union if don’t like it
• Election of 1800
o One of most chaotic elections ever
o Jefferson and Burr tie for Presidency
o Hamilton jumps in to support Jefferson
• Hated Jeff. But terrified of scumbag Burr coming to power
o Sweeping victory for Jeffersonians (Revolution of 1800)
o Lame Duck Federalists tried to promote their agenda
• Reduce size of SC
• Reorganize into 6 courts
• Midnight Judges
• Jefferson pissed
John Marshall
• Adams Apointee
• Reliably Federalist
• Outsmarted his opponents and was able to sway other Justices
• Defining figure in Court’s rise
• Federalists
o Nature of Constitution
• Supreme and Fundamental Law
• Implied Powers – Broad Construction
o Nature of Union
• Nation of we the People
o Nature of Gov’t Power
• Gov’t must be empowered to secure the public good
• Fed > State
• Democratic-Republicans
o Nature of Constitution
• Enumerated powers (catalogued)
• Strict reading
o Nature of Union
• Confederation in which States retain soveirgnty
o Nature of Gov’t Power
• Fed Gov’t = State Gov’t
• Must be limited to protect the people
Justice Taney
o Formerly Jackson’s attorney general
o Not a popular figure
o Considered a Jacksonian Political hack
• Jacksonian Democrats
o Common Man should have respect and power
o Federal Gov’t should not have much power
o “Best Government is that which governs least”
o Pro Slavery
o 3 Big Issues
• Internal Improvements
• Tarrif
• Bank
• 1824 Election
o 4 D-R’s run (party has splintered)
o Federalists pretty much disappeared
o Jackson gets most electoral college vottes but no majority
o Election thrown to John Quincy Adams
• 1828 Election
o Jackson (Democrats, localists) vs. Adams/Clay (Whigs, nationalists)
o Jackson wins
• Second Party System
o Democrats split
• Pro Union (Jackson, Van Buren)
• Nullifying (huge states rights – Calhoun)
o Whigs (Clay)
• Maysville Road Contraversy
o Ohio/Kentuckey Road vetoed by Jackson (not of national interest or w/in fed power)
o Clay accuses Jackson of hypocrisy: National road = army, commerce, mail
• Missouri Compromise
o ME free, MO slave
o Est. a line where slavery can’t be above
o Dred Scott ruins it
• Compromise of 1850
o Included Fugitive slave act
• Kansas/Nebraska Acts
o New territory = Popular soveirgnty
• Election of 1860
o 4 candidates
• Lincoln – Republican, stop spread of slavery
• Bell – S. Whigs/ Border states, take slavery off agenda
• Breckeridge – S. Dems, pro-slavery
• Stephen Douglas – N. Dems, pop. Sov.,
o Lincoln wins, dominates electoral college, only 40% popular vote
o Months after election, South Carolina secedes
• 6 more seceded b4 lincoln took office
• Populism
o Fear Corporate Power/ Extreme wealth
o Want gov’t regulation
o Hate Supreme Court for getting in way
o Agraryan working class
o Heartland
• Progressivism
o Upper/uppermiddle class urban (insiders)
o Coastal
o Construct a more responsive/accountable political system
o Rid moral vice from society
o Regulate ills of capitalism
o Gov’t more efficient and effective
o Protect weak
o Motiviated by belief in human betterment
• Society can get better through state power
o Dominated for 70 years
• Only 3 democrats over 70 yrs after Lincoln (all were liberal/unelected)
• Defining feature of national politics = Progressivism
• Liberty of Contract
o the freedom of individuals and corporations to form contracts without government restrictions.
o opposed to government restrictions such as minimum wage, competition law, or price fixing.
o underpinning of laissez-faire economics
o Est. in Lochner
• Substantive Due Process
o theories of law through which courts enforce limits on legislative and executive powers and authority
o Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent
o Est. in Lochner
o Never again in economics in Williamson v. Lee Optical of Oklahoma,
• Brandeis Brief
o For Muller v. Oregon
o Filled w facts and stats about women’s health
• New Deal
o Series of statutes designed tp regulate/stimulate economy
o Regulations, taxes, subsideies, more jobs
o Court struck down lots of it
• Horsemen
o Sutherland, Vandevantes, McReynolds, Butler
o Conservative Critics of New Deal
• Musketeers
o Brandeis, Stone, Cardozo
o Progressive supporters of New Deal
• New Deal Moderates
o Hughes , Roberts
o Held decisive votes
• Switch that saved 9
o Roberts switches to Musketeers 1937 (West Coast Hotel v. Parish)
o What changed?
• FDR wins epic landlside 1936 election – validates new deal?
• FDR proposes Court packing Plan – scares court straight?
o Radical change in justice system vs. one justice switching sides?
o Political/Externally motivated vs. Legal/Internal?
o Ramifications?
• Judicial subjectivity= norm?
• Precedent= worthless
• Congress and President more powerful than ever
• States more supervised
• 10th Am. Weaker
• Franklin Delano Roosevelt
o Up until him powerful presidents = exception (Jackson, Lincoln, Jefferson)
o Congress was the power wielder
o New Deal, WWII
o Around New Deal, this switches
• “The Great Society”
o Warren Court
o All justices = big time New Deal politicians
o Concerned with w/ government and protecting the people/making their lives better, not business
• Chief Justice Earl Warren
o Cali Gov.
o Eisenhower appointee
• Liberal but not recognized as such when appointed
• Pledged support for E. in exchange for next seat
• Eisenhower described him as his biggest mistake
• New Right
o Rehnquist Court
o Union = compact, states retain soveirgnty
o Interrested in structure + history off system
o Judiciary protects state rights
o Active Judicial supervision
• Tri-Headed Federalism Attack (of New Right)
o Stricter Limits on commerce clause
o Revived 10th Amendment
• Reestablish dual sov.
• Protect state officers
o Expand 11th Amenment
• Protecting states from Federal power
• Responses to Bush v. Gore
o Cheer Leaders
o Court took a bullet for the Country
o Bad Hairday
o We are all Crits now
• Minimalism
o Rule as narrowly as possible
o Don’t overstep power
o If make a mistake, not too bad
• Conservative Ascendancies
o Burger Court (1964-1986)
o Rehnquist (1986-2005)
o Roberts (2005-????)
• Preferred Freedoms
o From US v. Carolene Products Footnote 4 (Stone)
o Stricter Scrutiny when the following involved:
• Bill of Rights
• The Political Process
• Discreet/Insular Minority
o Would come to be HUGE for Warren Court
Hayburn’s Case (1792)
Under an act established by Congress in 1792, war veterans needed to petition the government for their pensions. Petitioners would provide evidence of their service to a circuit court, which would offer a non-binding opinion that could be accepted or rejected by the Secretary of War. Various circuit courts issued opinions either declining to fulfill this role or claiming to fulfill it only in an “extra-judicial” capacity

Opinion: Chief Justice Jay, Justice Cushing and Judge Duane
Judicial decisions cannot be reviewed by congress or an other officer. Separation of power forbids judges from acting in a non judicial capacity
“That neither the Legislature nor the Executive branches can constitutionally assign to the Judicial any duties but such as are properly judicial and to be performed in a judicial manner. That the duties assigned to the circuit courts by this act are not of that description.”
Jay, Hayburn’s Case (1792)
“That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress; and as the Judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the National Legislature, they will execute this act in the capacity of commissioners.”
Jay, Hayburn’s Case (1792)
“”Such revisions and control we deemed radically inconsistent with the independence of that Judicial power…”
Letters of Justice Wilson and Blair and District Judge Peters to the President
Hayburn’s Case (1792)
“These Sir, are the reasons of our conduct. Be assured that, though necessary, it was far from being pleasant. To be obliged to act contrary, either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally obvious, excite feelings in us, which we hope never to experience again.”
Letters of Justice Wilson and Blair and District Judge Peters to the President
Hayburn’s Case (1792)
“The high respect we entertain for the legislature, our feelings, as men, for persons whose situation requires the earliest, as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of congress…”
Justice Iredell and District Judge Sitgreaves
Hayburn’s Case (1792)
Chisholm v. Georgia (1793)
In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the supplies, Georgia did not deliver payments as promised. After the merchant's death, the executor of his estate, Alexander Chisholm, took the case to court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

Chief Justice Jay:
In a 4-to-1 decision, the justices held that "the people of the United States" intended to bind the states by the legislative, executive, and judicial powers of the national government. The Court held that supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia. The Constitution made clear that controversies between individual states and citizens of other states were under the jurisdiction of federal courts. State conduct was subject to judicial review.
“As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as part of the “’People of the United States,’ did not surrender the Supreme or sovereign Power to that State; but, as to the purpose of the Union, retrained it to themselves. As to the purposed of the Union, therefore, Georgia is NOT a Sovereign State….”
Chief Justice Jay: Chisholm v. Georgia (1793)
Hylton v. US (1796)
Daniel Hylton refused to pay a congressionally imposed tax on “carriages for the conveyance of persons.” He argues that the 1794 act imposing that tax was an unconstitutional violation of the tax powers enumerated in Article I, Section 2, namely that requirement that any ‘direct taxes be apportioned among the several states… according to their respective’ populations.

Justice Chase:
The carriage tax is within the power the power of Congress because it is an indirect tax. It is a tax on a service, not on income or property. This is the first case that brings up idea of judicial review.
“As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of congress void. "
Justice Chase, Hylton v. US (1796)
Calder v. Bull (1798)
Mr. and Mrs. Caleb Bull, the stated beneficiaries of the will of Norman Morrison, were denied an inheritance by a Connecticut probate court. When the Bulls attempted to appeal the decision more than a year and a half later, they found that a state law prohibited appeals not made within 18 months of the original ruling. The Bulls persuaded the Connecticut legislature to change the restriction, which enabled them to successfully appeal the case. Calder, the initial inheritor of Morrison's estate, took the case to the Supreme Court.
Q. Was the Connecticut legislation a violation of Article 1, Section 10, of the Constitution, which prohibits ex post facto laws?

Retrospective vs. Ex post facto
Fixes errors, may be bad, but not ex post facto makes punishment worse. About
and not automatically unconstitutional making something innocent guilty.

First case ever reviewing a state law.

Opinion: In a unanimous decision, the Court held that the legislation was not an ex post facto law. The Court drew a distinction between criminal rights and "private rights," arguing that restrictions against ex post facto laws were not designed to protect citizens' contract rights. Justice Chase noted that while all ex post facto laws are retrospective, all retrospective laws are not necessarily ex post facto. Even "vested" property rights are subject to retroactive laws.
"We are all Federalists; we are all Republicans"
Jefferson says in his inaugural
all branches have the duty to interpret the Constitution for themselves
popular will
• PA judge Gibson: power to nullify laws should reside in the people (through their elected representatives)
Marbury v. Madison (1803)
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court. (Justices William Cushing and Alfred Moore did not participate.) Marbury brings suit looking for a writ of Mandamus from Madison. Judiciary act of 1789 gives court the right to do this.

Political problems:
1. If the court demands the commission and Jefferson refuses, the court looks weak.
2. If the court doesn’t demand the commission it looks weak.

Marshall asked three questions:
1. Does Marbury rightfully request commission? Yes
2. Does Marbury have remedy for this wrong? Yes
3. Does the court have the right to issues Mandamus? No because act authorizing Supreme Court to issue remedy is inconsistent with the Constitution and if it conflicts with constitutional law it is null and void. It is the court’s job to declare it so because power and duty of the Judicial Department is to say what the law is.

Art. III lays out the only way the courts can look at cases. Congress can’t expand Supreme Court’s original jurisdiction.

The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.

Marbury does not establish or save judicial review. Legally, the power of judicial review was established before Marbury and it was well after that actually used. It is possible that our definite of judicial review is different now than in Marbury.

Marbury a fusion of law in politics
“It is emphatically the province and duty of the Judicial Department to say what the law is”
Marshall, Marbury v. Madison (1803)
Fletcher v. Peck (1810)
In 1795, the Georgia state legislature passed a land grant awarding territory to four companies. The following year, however, the legislature voided the law and declared all rights and claims under it to be invalid. In 1800, John Peck acquired land that was part of the original legislative grant. He then sold the land to Robert Fletcher three years later, claiming that past sales of the land had been legitimate. Fletcher argued that since the original sale of the land had been declared invalid, Peck had no legal right to sell the land and thus committed a breach of contract.

Could the contract between Fletcher and Peck be invalidated by an act of the Georgia legislature?

First instance of the court striking down a state law.

In a unanimous opinion, the Court held that since the estate had been legally "passed into the hands of a purchaser for a valuable consideration," the Georgia legislature could not take away the land or invalidate the contract. Noting that the Constitution did not permit bills of attainder or ex post facto laws, the Court held that laws annulling contracts or grants made by previous legislative acts were constitutionally impermissible.
“The question, whether a law be void for its repugnancy to the Constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.”
Chief Justice Marshall, Fletcher v. Peck (1810)
“The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power.”
Chief Justice Marshall, Fletcher v. Peck (1810)
“But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed that may be found in its own Constitution. She is a part of a large empire; she is a member of the American Union; and that Union has a Constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several States which none claim a right to pass. The Constitution of the United States declares that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. “
Chief Justice Marshall, Fletcher v. Peck (1810)
McCulloch v. Maryland (1819)
MD passes legislation to tax all banks not part of the states so it attempts to tax the national bank.

Justice Marshall:

1) Does the Federal Government have the Constitutional power to create a bank?
2) Does Maryland have the right to tax the bank?

1) Yes. Congress has the power to create a bank because of implied powers and its governing forever over large area so needs to be able to interpret necessary and proper clause a little loosely so it can be useful. The National Bank is a constitutional exercise of power under Necessary and Proper Clause.
2) No. Power to tax is power to destroy. The problem is the states would be controlling the federal government because if allowed, the power to tax could be applied to all Federal things. States can’t tax Federal Government because the Federal Government is supreme.
“But there is no phrase in the instrument (constitution) which, like the Articles of the Confederation, excludes incidental or implied powers and which require that everything granted shall be expressly and minutely described.”
Chief Justice Marshall; McCulloch v. Maryland (1819)
“ Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
Chief Justice Marshall; McCulloch v. Maryland (1819)
“This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
Chief Justice Marshall; McCulloch v. Maryland (1819)
“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…”
Chief Justice Marshall; McCulloch v. Maryland (1819)
“The object of the instrument is not a single one which can be minutely described, with all its circumstances. The attempt to do so, would totally change its nature, and defeat its purposes. It is intended to be a general system for all future times, to be adapted by those who administer it, to all future occasions that may come within its own view… the legislature is an emanation from the people themselves. It is a part chosen to represent the whole…”
John Marshall “A Friend of the Constitution” 1819
Martin v. Hunter’s Lessee (1816)
Dispute: VA trying to take land from a man who claims protection by the Jay Treaty. Supreme Court rules that land needs to be returned to the owner. VA Ct. says this is unconstitutional because Supreme Court can’t rule over the States because of State Sovereignty. Sec. 25 of Judiciary Act is unconstitutional.

Justice Story: the Constitution says that the S Ct. is the highest in the land. States part of a higher union for S Ct. supposed to supervise the St. Cts.Obligation for States to obey Supreme Law of Land. Another problem lies in the need to have uniformity of interpretation of the constitution among the states.
This case involves jurisdiction. Does the S Ct. have the authority to hear this kind of case? Ct. has authority to hear civil cases from the States Cts. If there are Federal issues present. This case involves a treaty which is a Federal thing. Sec 25 of the Judiciary act give power to S Ct. to pull out civil state cases involving Federal Law.
“ The Constitution has presumed (whether rightly or wrongly we do not inquire) that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control or be supposed to obstruct or control, the regular administration of justice….”
Justice Story; Martin v. Hunter’s Lessee (1816)
Cohen v. Virginia (1821)
Congress authorized a lottery within D.C. Cohen sells tickets to VA and VA punished them because lotteries not allowed in VA. Cohen argues that state law conflicts with federal law. VA contends that S Ct. can’t rule in case

S Ct. can step in with appellate power. S Ct. supremacy central to power of Fed. Govt. S Ct. has jurisdiction to review criminal cases from state ct. if there is a federal issue.

This moves Martin one step further because no state is one of the parties.

This isn’t a federal law because it is a community issue so the ct. not going to get involved but it could if it wanted to.
“ We think that, in a government acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme so far as respecting those objects and so far as it is necessary to their attainment.”
Marshall; Cohen v. Virginia (1821)
“ This practice of Judge Marshall, of travelling out of his case of prescribe what the law would be in a moot case not before the court, is very irregular and very censurable.”
Letter to William Johnson from Thomas Jefferson (June 12, 1823)
on Cohen v. Virginia (1821)
“ On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which is was passed.”
Letter to William Johnson from Thomas Jefferson (June 12, 1823)
on Cohen v. Virginia (1821)
New Jersey v. Wilson (1812)
In 1758, the New Jersey colonial legislature made an agreement with the Delaware Indians, granting to them a portion of land which would remain an Indian possession forever. Part of the contract provided that the land could never be sold or taxed. In 1801, the Indians gained permission to sell the land. In 1804 the state legislature repealed the land's tax exemption.

Did the repeal of the tax exemption impair the obligation of a contract between the state and the new owner of the land?

Yes. The unanimous Court held that the tax-exempt privilege, though originally enacted for the benefit of the Indians, was "annexed, by the terms which create it, to the land itself." The purchaser was entitled to "all the rights of the Indians" by virtue of claiming "the benefit of their contract."
The contract, not the people define terms of land. State can only change terms before sale.
“The state of New Jersey might have insisted on a surrender of this privilege as the sole condition on which the sale of the property should be allowed.”
Marshall; New Jersey v. Wilson (1812)
Dartmouth College v. Woodward (1819)
In 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. The legislature changed the school's corporate charter by transferring the control of trustee appointments to the governor. In an attempt to regain authority over the resources of Dartmouth College, the old trustees filed suit against William H. Woodward, who sided with the new appointees.

Did the New Hampshire legislature unconstitutionally interfere with Dartmouth College's rights under the Contract Clause?

In a 6-to-1 decision, the Court held that the College's corporate charter (royal charter) qualified as a contract between private parties, with which the legislature could not interfere. The fact that the government had commissioned the charter did not transform the school into a civil institution. Chief Justice Marshall's opinion emphasized that the term "contract" referred to transactions involving individual property rights, not to "the political relations between the government and its citizens."

Public concern does not make private property public. None of aspects of the College public.
“Taken in its broad, unlimited sense, the clause (contract) would be an unprofitable and vexatious interference with the internal concerns of a state…. “
Marshall; Dartmouth College v. Woodward (1819)
Gibbons v. Ogden (1824)
A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters.

Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce?

The Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade. The New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall's was one of the earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress.
Must read constitution in a broad sense so commerce includes navigation. States can creates laws for state commerce if Federal law doesn’t exist, but Federal regulations trump state regulations.
“…for that narrow construction which would cripple the government and render it unequal to the object for which its is declared to be instituted, and to which the powers given….”
Chief Justice Marshall; Gibbons v. Ogden (1824)
“Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It described the commercial intercourse between nations, and parts of nation, in all its branches, and is regulated by prescribing rules for carrying on the intercourse.”
Chief Justice Marshall; Gibbons v. Ogden (1824)
“It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution.”
Chief Justice Marshall; Gibbons v. Ogden (1824)
Wilson v. Blackbird Creek Marsh Company (1829)
A creek is blocked by a dam
Marshall – Congress has not regulated this water so still falls under State power. This is purely a state power and while Congress retains power to regulate commerce in its “dominant” state. But in this case it doesn’t apply yet.
“Measures calculated to produce these objects, provided they do not come into collision with the powers of the General Government, are undoubtedly within those which are reserved to the States.”
Marshall; Wilson v. Blackbird Creek Marsh Company (1829)
“We do not thing that the Act empowers the Black Bird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant State…”
Marshall; Wilson v. Blackbird Creek Marsh Company (1829)
“We believe… in the principle of democratic republicanism, in its strongest and purest sense. We have an abiding confidence in the virtue, intelligence, and full capacity for self-government, of the great mass of our people, our industrious, honest, manly, intelligent millions of freemen.”
“An Introductory Statement of the Democratic Principle” The Democratic Review
“ The best government is that which governs least.”
“An Introductory Statement of the Democratic Principle” The Democratic Review
“… I am not able to view it in any other light than as a measure of purely local character…”
Andrew Jackson, Veto of Maysville Road Bill May 27th 1830
“It has no connection with any established system of improvements; is exclusively within the limits of a State, starting at a point on the Ohio River and running out 60 miles to an interior town, and even as far as the State is interested conferring partial instead of general advantages.”
Andrew Jackson, Veto of Maysville Road Bill May 27th 1830
“This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may – State right, veto, nullification, or by any other name – I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself…”
John C. Calhoun “Fort Hill Address” (1831)
“For myself, Sir, I do not admit the competency of South Carolina, or any State, to prescribe my constitutional duty
Daniel Webster, Speech on Nullification (1830)
“We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the States….and are null, void and no law, nor binding upon this State its officers or citizens; an all promises, contracts, and obligations, made of entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter in affirmance thereof, and shall be held utterly null and void.”
South Carolina Ordinance of Nullification, 11/24/1832
“Done in convention at Columbia …. And in the fifty-seventh year of the Declaration of the Independence of the United States of America.”
South Carolina Ordinance of Nullification, 11/24/1832
“ I consider then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”
Andrew Jackson, Proclamation on Nullification (1832)
Charles River Bridge v. Warren Bridge (1837)
Oh hey we rowed there!!!!
In 1785, the Massachusetts legislature incorporated the Charles River Bridge Company to construct a bridge and collect tolls. In 1828, the legislature established the Warren Bridge Company to build a free bridge nearby. Unsurprisingly, the new bridge deprived the old one of traffic and tolls. The Charles River Bridge Company filed suit, claiming the legislature had defaulted on its initial contract.

Did the legislature enter into an economic contract with the Charles River Bridge Company that was impaired by the second charter in violation of Article I Section 10 of the Constitution?

In a 5-to-2 decision, the Court held that the state had not entered a contract that prohibited the construction of another bridge on the river at a later date. The Court held that the legislature neither gave exclusive control over the waters of the river nor invaded corporate privilege by interfering with the company's profit-making ability. In balancing the rights of private property against the need for economic development, the Court found that the community interest in creating new channels of travel and trade had priority.
“ The object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the government intended to diminish its power of accomplishing the end for which is was created.”
Chief Justice Taney; Charles River Bridge v. Warren Bridge (1837)
“While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation.”
Chief Justice Taney; Charles River Bridge v. Warren Bridge (1837)
“…You will soon find the old turnpike corporations awakening from their sleep, and calling upon this Court to put down the improvements which have taken their place.”
Chief Justice Taney; Charles River Bridge v. Warren Bridge (1837)
“We shall be thrown back to the improvements of he last century and obliged to stand still …”
Chief Justice Taney; Charles River Bridge v. Warren Bridge (1837)
“for my own part, I can conceive of no surer plan to arrest all public improvements founded on private capital and enterprise that to make the outlay of that capital uncertain and questionable, but as to security and productiveness….”
Justice Story in dissent; Charles River Bridge v. Warren Bridge (1837)
Mayor of New York v. Miln (1837)
A state law required all vessels docking in New York City to provide a list of passengers and to post security against the passengers from becoming public charges. Miln, the master of the ship "Emily," refused to comply with the law. The city sought to collect a penalty for Miln's failure to file the report.

Does the New York law violate the Commerce Clause which vests all power over interstate and foreign commerce in Congress?

The Court upheld the state law. The justices ducked the Commerce Clause issue and invoked what was to become the state "police power" (under 10th)-- the right of a sovereign to take all necessary steps to protect the health, safety, and welfare of its citizens. According to Barbour, who wrote the majority opinion, a state is as competent "to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possible convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported." The Court reversed Miln in 1941. (See Edwards v. California)
“We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convict; as it is to guard against the physical pestilence, which may arise from unsound and infection articles imported, or from a ship, the crew of which may be laboring under an infectious disease…”
Justice Barbour; Mayor of New York v. Miln (1837)
Luther v. Borden (1849)
Revolution in RI government (Dorr’s Rebellion)
Luther was an insurgent who claimed that the old charter government was “not a republican form of government” as required by Article IV and that all its acts were thereby invalid.
Taney- Not up to courts to choose this. It is the right of the Political Branches. This is a political case, the republican guarantee is a political question not to be decided by the Court.
Cooley v. Board of Wardens (1852)
A Pennsylvania law required that all ships entering or leaving the port of Philadelphia hire a local pilot. Ships that fail to do so would be subject to a fine, which would go to a fund for retire pilots and their dependents. This fund was administered by the Board of Wardens of the Port of Philadelphia. Cooley was a ship owner. He refused to hire a local pilot and he also refused to pay the fine.

Does the law violate the Commerce Clause of the Constitution?

According to Justice Curtis, who wrote the majority opinion, the pilotage law did not violate the Constitution. Congress had provided in 1789 that state pilotage laws should govern. Navigation was commerce; and, piloting was navigation. Though the subject to be regulated was commerce, the interesting twist here was whether the Commerce Power was exclusive. Some subjects demand a single uniform rule for the whole nation, while others, like pilotage, demand diverse local rules to cope with varying local conditions. The power of Congress was therefore selectively exclusive.
“Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States…”
Justice Curtis; Cooley v. Board of Wardens (1852)
“Slavery, then, has its origins in force; but as the world agreed that it is a legitimate result of force, the state of things which is this produced by general consent, cannot be pronounced unlawful.”
Justice Marshall; The Antelope (1825)
“The clause is founded in the national constitution, and not in that of any state. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of he national government, no where delegated or intrusted to them by the constitution.“
Justice Story; Prigg v. Pennsylvania (1842)
Prigg v. Pennsylvania (1842)
a United States Supreme Court case in which the court held that the Federal Fugitive Slave Act precluded a Pennsylvania state law that gave procedural protections to suspected escaped slaves
Prigg v. Pennsylvania (1842)
The Pennsylvania legislature passed laws in 1788 and 1826 prohibiting the removal of Negroes out of the state for the purpose of enslaving them (personal liberty laws). In 1832, a black woman named Margaret Morgan moved from Maryland to Pennsylvania. Although she was never formally emancipated, her owner John Ashmore granted her virtually full freedom. Ashmore's heirs wanted her returned as a slave and sent Edward Prigg to capture her in Pennsylvania. After returning Morgan to Maryland, Prigg was convicted in a Pennsylvania court for violating the 1826 law. Prigg unsuccessfully argued before the Pennsylvania Supreme Court that both the 1788 and 1826 laws violated the constitutional guarantee of extradition among states and the federal government's Fugitive Slave Law of 1793.

Did Pennsylvania's law prohibiting the extradition of Negroes to other states for the purpose of slavery violate Article IV, Section 2 of the Constitution? Did the law violate the Fugitive Slave Law of 1793 as applied by the Supremacy Clause?

Rights of slave owners imbedded in the Constitution. Fugitive Slave Clause of Constitution allows for master’s rights andFugitive Slave laws enforce the clause. Personal liberty laws are unconstitutional. States can’t pass any law about fugitive slaves as it is a federal issue. Story granted that the state laws put in place by slave states to recapture slaves in free states only had to be enforced by federal officials, and not state magistrates.
“The clause is founded in the national constitution, and not in that of any state. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of he national government, no where delegated or intrusted to them by the constitution.
Justice Story; Prigg v. Pennsylvania (1842)
Dred Scott v. San(d)ford (1857)
Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution.

Was Dred Scott free or slave?

Slaves/ Free blacks cannot be citizens of the United States. Uses historical references to reach decision as the founders did not consider blacks citizens at time of writing the Constitution. Slaves and Free blacks have no right to sue in Federal Court. There is a difference between the rights of the citizen of the state and the citizen of the nation. A person can have rights as a citizen of the state and not be a citizen of the nation. Congress lacks constitutional power to pass Missouri Compromise. Congress cannot regulate slavery in territories not found at the time of the writing of the Constitution in 1789.
“The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States and as such become entitled to all the rights…”
Justice Taney; Dred Scott v. San(d)ford (1857)
“…The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the territory all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States – that is, to a territory then in existence, and then known or claimed as the territory of the United State….”
Justice Taney; Dred Scott v. San(d)ford (1857)
Ableman v. Booth (1858)
States were looking for a way to obstruct the Federal Fugitive Slave laws. Booth was arrested and charged with helping a fugitive slave escape custody of a U.S. marshal. Booth was held by the marshal and sought a writ of habeas corpus from a justice of the Wisconsin Supreme Court. The justices issue the writ and ordered Booth’s release. Ableman (marshal) appealed and Wisco Ct. held Fugitive Slave Act unconstitutional. Booth was convicted in Federal Court and again sought relief from Wisco court that he received. Supreme Court asked for the transcripts from the Wisco court for the new case and Wisco denied.
Taney: State Courts cannot obstruct Federal Court proceedings. They must assist.
The role of the judiciary in the Civil War and its immediate aftermath
• Taney defied by Lincoln when he tries to take a strong stance in Merryman
• Court punts issue to executive in The Prize Cases
• Court stands up to Lincoln after he's dead and after the war is over in Milligan
Ex parte Merryman (1861)
Merryman charged with collaborating with the Confederacy. He was arrested without a warrant. He was held in a Military prison. Merryman wanted a writ of Habeas Corpus. He wanted his change in Court. Lincoln suspended right to habeas corpus.

Taney – President without authority to suspend Habeas Corpus because suspension clause appears in Article I. Even in cases of emergency, the military can’t take over the law.
“…but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.”
Justice Taney; Ex parte Merryman (1861)
“It will then remain for that high officer, in fulfillment of his constitutional obligation to “take care that the laws be faithfully executed,” to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”
Justice Taney; Ex parte Merryman (1861)
The Prize Cases (1863)
Lincoln proclaimed a blockade of southern ports in April 1861. Congress authorized him to declare a state of insurrection by the Act of July 13, 1861. By the Act of August 6, 1861, Congress retroactively ratified all Lincoln's military action. These cases involved the seizure of vessels bound for Confederate ports prior to July 13, 1861.

Did Lincoln act within his presidential powers defined by Article II when he ordered the seizures absent a declaration of war?

The President had the power to act. A state of civil war existed de facto after the firing on Fort Sumter (April 12, 1861) and the Supreme Court would take this fact into account. Though neither Congress nor the President can declare war against a state of the Union, when states waged war against the United States government, the President was "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name."
“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents”
Grier; The Prize Cases (1863)
“The president was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”
Grier; The Prize Cases (1863)
Ex parte Milligan (1866)
Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court.

Does a civil court have jurisdiction over a military tribunal?

Davis, speaking for the Court, held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating.
“The importance of the main question presented by this record cannot be overstated, for it involves the very framework of the government and the fundamental principles of American liberty.
During the late and wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, consideration of safety were mingled with the exercise of power and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question as well as others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”
Justice Davis; Ex parte Milligan (1866)
Reconstruction and Gilded Age
• making the world over socially/culturally
• achieving equal citizenship for African Americans (primary focus of Reconstruction)
• making the world over economically
• constructing an industrial economy (primary focus of the Gilded Age)

The role of the Court in making the world over
• stunting the development of African-American citizenship
• narrow interpretations of the 14th Amendment in The Slaughterhouse Cases and The Civil Rights Cases
• facilitating the growth of an industrial economy
• striking down state railroad regulation in Wabash and federal anti-trust legislation in EC Knight
Champion v. Ames (1903)
The defendants in the case were arrested and convicted under an Act of Congress of 1895 that made it illegal to send or conspire to send lottery tickets across state lines. Champion argues that the act criminalizing the transport of lottery materials exceeded congressional commerce clause authority.

Harlan: Lottery tickets subject to regulation because clearly interstate commerce. Congress regulating something within its power.
Chief Justice Fuller dissenting: This should be a police power left to states. This is a moral issue.
“These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay him the amount of the prize drawn…”
Harlan; Champion v. Ames (1903)
“To hold that Congress has police power would be to hold that it may accomplish objects not intrusted to the general government, and to defeat the operation of the 10th Amendment…”
Chief Justice Fuller dissenting; Champion v. Ames (1903)
McCray v. US (1904)
At the urging of dairy farmers, Congress passed an act imposing a tax of 10 cents per pound on oleomargarine that was artificially colored yellow. Noncolored margarine was taxed only one-quarter of a cent per pound. McCray, a licensed dealer, did not pay the higher tax while selling the colored product. After losing his case in lower courts, McCray appealed to the Supreme Court.

Did the congressional act overstep the boundaries of the taxing powers established in the Constitution?

Justice White: In a 6-to-3 decision, the Court held that the taxes levied on colored and noncolored oleomargarine were constitutional. The Court held that the right of Congress to tax within its delegated powers was essentially "unrestrained," and that "no want of due process of law could possibly result" from exercises of that power. The Court argued that to question the purpose and motive of Congress in exerting its delegated powers would be to "usurp the functions of the legislative in order to control that branch of the government in the performance of its lawful duties
“Let us concede that, if a case was presented where the abusing of the taxing power was so extreme as to be beyond the principles which we have previously stated, and where it was plainly to the judicial mind that the power has been called into play not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests, that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred.”
White; McCray v. US (1904)
Hoke and Economides v. US (1913)
Mann act prohibits the shipment of women and girls over state lines for prostitution. Hoke argues that act violates privileges and immunities of citizens specifically right to travel and exceeds commerce clause.

Justice McKenna: It is within congressional power because it is between states and law is intended to be policing but that does not mean that it can be prohibited as prostitution can be regulated by congress because of commerce clause.
Hammer v. Dagenhart (1918)
Keating –Owen Child Labor Act banned child labor. Dagenhart argues this oversteps commerce clause and violation 5th right not to be denied property without due process of law.

Justice Day: Act aims to standardize child labor. The goods are harmless so they should not be prohibited by congress. The act not regulating commerce it is regulating manufacturing. Congress can’t regulate child labor because goods themselves are harmless. If the court allowed this act, Federal Government could regulate everything.
Bailey v. Drexel Furniture Co. (1922)
Legislature passes a punitive tax on child labor after Keating- Owen struck down. Drexel argues that such a tax was really regulatory and thus violated the 10th amendment.

Taft: Need to look at the intent of the law. Determines tax intended to regulate child labor. Congress cannot use taxation power to regulate something/ object not otherwise within its jurisdiction.
“ We must construe the law and interpret the intent and meaning of Congress form the language of the act.”
Justice Taft; Bailey v. Drexel Furniture Co. (1922)
“Its prohibitory and regulatory effect and purpose are palpable. All others can see and understand this. How can we properly shut our minds to it?”
Justice Taft; Bailey v. Drexel Furniture Co. (1922)
Allgeyer v. Louisiana (1897)
A Louisiana statute prohibited foreign (out-of-state) insurance corporations from conducting business in Louisiana without maintaining at least one place of business and an authorized agent in the State. Louisiana implemented the statute as an exercise of its police powers, intending to protect its citizens from deceitful insurance companies. Allgeyer and Company violated this statute by purchasing insurance from a firm based in the State of New York which did not meet the requirements of the Louisiana law.

Does the Louisiana law violate the Fourteenth Amendment's due process clause which, according to Allegyer and Company, protects its liberty to enter into contracts with businesses of its choice?

Yes. In a unanimous decision, the Court found that the Louisiana statute deprived Allgeyer and Company of its liberty without due process of law as protected by the Constitution's Fourteenth Amendment. The Court reasoned that even though the Atlantic Mutual Insurance Company of New York did not maintain an office or agent in Louisiana, Allgeyer and Company could still, as it did, enter into a contract with Atlantic Mutual in the state of New York to insure its Louisiana property. Justice Peckham's opinion makes clear the linkage between an individual's economic liberty and the due process clause.
“… and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose above mentioned…”
Justice Peckham; Allgeyer v. Louisiana (1897)
Lochner v. New York (1905)
NY imposes maximum work week for bakers of 60 hrs a week and 10 hours a day. NY trying to help big business. NY claims purpose is to regulate public health under police power. Lochner argues this is a violation of 14th and liberty of contract

Justice Peckham : State has no reasonable grounds to use police powers. Liberty of contract forbids max hrs legislation.

Problems with this case: The court legislating. It has substituted substantive due process (the courts judgment over the state legislature) The substance of law may be so arbitrary that it deprives due process even if the legislature goes through the entire due process of law making.
“In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.”
Justice Peckham; Lochner v. New York (1905)
Muller v. Oregon (1908)
Oregon enacted a law that limited women to ten hours of work in factories and laundries.
Does the Oregon law violate a woman's freedom of contract implicit in the liberty protected by due process of the Fourteenth Amendment?

There was no constitutional violation. The factory and laundry owners claimed that there was no reasonable connection between the law and public health, safety, or welfare. In a famous brief in defense of the Oregon law, attorney Louis Brandeis elaborately detailed expert reports on the harmful physical, economic and social effects of long working hours on women. Brewer's opinion was based on the proposition that physical and social differences between the sexes warranted a different rule respecting labor contracts. Theretofore, gender was not a basis for such distinctions. Brewer's opinion conveyed the accepted wisdom of the day: that women were unequal and inferior to men.
“Differentiated by these matters from the other sex, she is properly placed in class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends on him.”
Brewer; Muller v. Oregon (1908)
Adkins v. Children’s Hospital (1923)
In 1918, Congress enacted a law which guaranteed a minimum wage to women and children employed in the District of Columbia. This case was decided together with Children's Hospital v. Lyons.

Did the law interfere with the ability of employers and employees to enter into contracts with each other without assuring due process of law, a freedom guaranteed by the Fifth Amendment?

The Court found that upholding the statute would dangerously extend the police power of the state and, thus, found it unconstitutional. Justice Sutherland recognized that the freedom of individuals to make contracts is not absolute and curtailments of this right may be justified in the face of "exceptional circumstances." However, in this case, the statute's implementation procedures were overly vague and did not act to regulate the character or method of wage payments, or the conditions and hours of labor, areas in which regulation to protect the public welfare were legitimate. The Congress simply had enacted a "price-fixing law."
“But the freedom of contracts is, nevertheless, the general rule, and restraint the exception, and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.”
Sutherland; Adkins v. Children’s Hospital (1923)
Nebbia v. New York (1934)
To combat the effects of the Great Depression, New York adopted a Milk Control Law in 1933 which established a board empowered to set a minimum retail price for milk. Nebbia was a store owner who violated the law.

Did the regulation violate the Due Process Clause of the Fourteenth Amendment?

No. In a case which included a lengthy discussion of the Due Process Clause, the Court held that since the price controls were not "arbitrary, discriminatory, or demonstrably irrelevant" to the policy adopted by the legislature to promote the general welfare, it was consistent with the Constitution. There was nothing "peculiarly sacrosanct" about prices which insulates them from government regulation, argued Justice Robert
Schechter Poultry v. US (1935)
Section 3 of the National Industrial Recovery Act empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The codes had standing as penal statutes.
Congress has illegally delegated powers
Not interstate commerce so it can’t be regulated.

Did Congress unconstitutionally delegate legislative power to the President?

The Court held that Section 3 was "without precedent" and violated the Constitution. The law did not establish rules or standards to evaluate industrial activity. In other words, it did not make codes, but simply empowered the President to do so. A unanimous Court found this to be an unconstitutional delegation of legislative authority.

Schechter challenges are right on both counts. Can’t delegate power to legislate to President and can’t use interstate commerce because the flow of commerce has stopped in Schechter’s firm. There is a difference between indirect and direct effects on interstate commerce and Congress can only regulate direct effects.
“this is delegation run riot.”
Cardozo concurring in Schechter Poultry v. US (1935)
US v. Butler (1936)
As part of the 1933 Agricultural Adjustment Act, Congress implemented a processing tax on agricultural commodities, from which funds would be redistributed to farmers who promised to reduce their acreage. The Act intended to solve the crisis in agricultural commodity prices which was causing many farmers to go under. Farmers who had to pay the tax contended that this amounted to a de facto regulation and this an invalid use of the taxing and spending power of the Constitution.

Roberts: Problematic aspect of this statute is tax regulates powers left to states by the 10th amendment. This is a coercive tax so it is regulatory, not for raising revenue.
Carter v. Cater Coal (1936)
In 1935, Congress enacted the Bituminous Coal Conservation Act, also known as the Guffey Coal Act. The Act regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. Although compliance was voluntary, tax refunds were established as incentives to abide by the regulations. Carter, a stockholder, brought suit against his own company in an attempt to keep it from paying the tax for noncompliance. Carter argues that the act exceeds congressional power under the commerce clause.
Congress in this case is regulating production not commerce. Congress can’t regulate production under commerce clause because it is a purely local concern. In striking down the law, Justice Sutherland argued that "[e]verything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce. . . would practically disappear."
"[e]verything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce. . . would practically disappear."
Sutherland; Carter v. Cater Coal (1936)
“Congress was not condemned to inaction in the face of price wars and wage wars so pregnant with disaster.”
Cardozo dissent in Carter v. Carter Coal
“Last Thursday I described the American form of government as the three-horse team provided by the Constitution to the American People so that their field might be plowed. The three horses are, of course, the three branches of government – the Congress, the executive, and the courts. Two of the horses, the Congress and the executive, are pulling in unison today; the third is not. “
Franklin Roosevelt, Fireside Chat on Court-Packing Plan (1937)
Morehead v. Tipaldo (1936)
NY designed a law regulating the minimum wage by empowering the state labor commission to fix wages in relation to the class of service rendered, as an attempt to satisfy the SC’s narrow view of minimum wage in Adkins. Tipaldo challenged law.

Butler – The States cannot pass minimum wage laws. Freedom of contracts is the general rule.
West Coast Hotel Co. v. Parrish (1937)
Elsie Parrish, an employee of the West Coast Hotel Company, received sub- minimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. Hotel argues that the state minimum wage law violates the liberty of contract rooted in the 14th amendment.

Chief Justice Hughes:
Reconsiders the absolute freedom of contract set forth in Adkins. The constitution speaks of liberty generally. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally "free" in negotiating contracts, since employees often were constrained by practical and economic realities. Minimum wage laws area valid exercise of state police power.
“We think that the question which was not deemed to be open in the Morehead case is open and is necessarily presented here.”
Hughes; West Coast Hotel Co. v. Parrish (1937)
National Labor Relations Board v. Jones and Laughlin Steel (1937)
With the National Labor Relations Act of 1935, Congress determined that labor- management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the national government. In this case, the National Labor Relations Board charged the Jones & Laughlin Steel Co. with discriminating against employees who were union members. Jones & Laughlin Steel Co. argued the NLRA by imposing restrictions on manufacturing, exceeded congressional Commerce powers.

NLRA (Wagner Act) is constitutional because manufacturing has the potential to influence or affect interstate commerce even if intra-state. It is a question of industrial peace. Labor disputes are potentially harmful for interstate commerce so protection of labor and unions is constitutional.
Steward Machine v. Davis (1937)
The Steward Machine Company challenged the validity of a tax imposed by the Social Security Act. The Act established a federal payroll tax on employers; however, if employers paid taxes to a state unemployment compensation fund (created by the states subject to federal standards), they were allowed to credit those payments toward the federal tax. Steward Machine says this is a violation of the 10th taking power away from the states.

Looks at context of Great Depression in opinion. There is no power being stripped of the individual states. States can regulate this, but a tax of employers when citizens under economic duress is legal. Tax on employers to fund SS is within congressional authority.
US v. Darby (1941)
In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages, maximum weekly hours, and child labor. Corporations which engaged in interstate commerce or produced goods which were sold in other states were punished for violating the statute. Darby contended that these regulations on manufacturing exceeded the federal government’s Commerce Clause powers and conflicted with the 10th Amendment.

Stone: Congress acted with proper authority in outlawing substandard labor conditions since they have a significant impact on interstate commerce. This a rejection that there are powers that are prohibited to Federal government.
“…Hammer v. Dagenhart… The distinction on which the decision was rested, that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property …has long since been abandoned…the conclusion is inescapable that Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision, and that such vitality, as precedent, as it then had, has long since been exhausted. It should be and now is overruled…”
Stone; US v. Darby (1941)
“Our conclusion is unaffected by the 10th Amendment which provides: “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people.” The amendment states but a truism that all is retained which has not been surrendered.”
Stone; US v. Darby (1941)
Myers v. US (1926)
An 1876 law provided that postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval. Government claimed that Art. II only requires the advice and consent of Senate for nominations but left the President wit the discretion to remove executive officers.

President has the authority to remove post master because of historical precedence. The president has full authority rendered under article II to remove executive branch officials.
Humphrey’s Executor v. US (1935)
President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." Since Humphrey died shortly after being dismissed, his executor sued to recover Humphrey's lost salary. Government contends that Roosevelt had Art. II authority to fire an administrative agency staffer.

The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president. Justice Sutherland dismissed the government's main line of defense in this case which relied heavily on the Court's decision in Meyers v. United States (1926). In that case the Court upheld the president's right to remove officers who were "units of the executive department." The FTC was different, argued Sutherland, because it was a body created by Congress to perform quasi- legislative and judicial functions. The Meyers precedent, therefore, did not apply in this situation.
J.W. Hampton v. US (1928)
The Tariff Act of 1922 delegated the authority (to the president) to set and impose customs duties on articles of imported merchandise. When, under a proclamation of the President, J.W. Hampton & Company was assessed a higher customs duty than was fixed by statute, the company sought relief in the courts. Argued that delegation of rule-making authority violated separation of powers.

Congress can delegate this power because it isn’t a legislative power, it is authority granted with limits and parameters. As long as intelligible principle is evident from congress, president can be granted this job.
US v. Curtis – Wright Export (1936)
Congress passes resolution to give President power to ban weapons sales to Bolivia after consultation with the other governments of the American Republics. C-W argues that this is an unconstitutional delegation of powers.

Sutherland – President has broad powers when dealing with external power. Executive sole organ of external affairs. He has broad un-enumerated source of power.
“The two classes of power are different both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers are necessary and proper to carry into effect the enumerated powers is categorically true only in respect of our internal affairs.”
Sutherland; US v. Curtis – Wright Export (1936)
Korematsu v. US (1944)
During World War II, Presidential Executive Order 9066 and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from areas deemed critical to national defense and potentially vulnerable to espionage. Korematsu remained in San Leandro, California and violated Civilian Exclusion Order No. 34 of the U.S. Army.

The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril."

Classification of people on race requires strict scrutiny which is almost impossible to pass, but in this case the government has met the burden in the court’s eyes.
“But hardships are part of war, war is an aggregation of hardship. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.”
Black; Korematsu v. US (1944)
Yougstown Sheet and Tube v. Sawyer (1952)
In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. Steel companies argued that that this exceeds the president’s powers.
In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."
US v. Carolene Products (1938)
Insignificant case, extremely significant footnote
Congressional ban on interstate shipment and commerce of filled milk.
Stone: this is a const exercise of power. Outlining judicial deference to Congress. If it isn’t unconstitutional on its face, the court will allow it.
“Statute is not unconstitutional on its face…”
Stone; US v. Carolene Products (1938)
Wickard v. Filburn ( 1942)
Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted the wheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use.

According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"
"it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"
Justice Jackson, Wickard v. Filburn ( 1942)
Southern Pacific v. Arizona (1945)
Chief Justice Stone:
State law cannot impede flow of interstate commerce or impinge on intent of congress to have a national policy.
Black dissent: Court can’t act as super legislature.
Dean Milk v. Madison (1951)
A Madison, Wisconsin ordinance prohibited the sale of milk within city limits unless it came from a local farm or was pasteurized at an approved plant within five miles of the center of Madison. When the Dean Milk Company, located in Illinois, was denied a permit to sell milk, it filed suit against the city. Argued this was a burden on interstate commerce.

In a 6-to-3 decision, the Court held that the Wisconsin ordinance imposed an "undue burden" on interstate commerce. The Court argued that general discrimination against non-local producers was not narrowly tailored to serve the city's interests. Reasonable, nondiscriminatory alternatives were available to ensure milk sold in the city was wholesome and properly pasteurized. "To permit Madison to adopt a regulation not essential for the protection of local health interest and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause."
"To permit Madison to adopt a regulation not essential for the protection of local health interest and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause."
Dean Milk v. Madison (1951)
“I find it difficult to explain why the Court uses the “reasonable alternative” concept to protect trade when today it refuses to apply the same principle to protect freedom of speech…If, however the principle announced today is to be followed, the Court should not strike down local health regulations unless satisfied beyond a reasonable doubt that the substitutes it proposes would not lower health standards. I do not think that the Court can do satisfy itself on the basis of its judicial knowledge.”
Black dissent: Dean Milk v. Madison (1951)
Williamson v. Lee Optical of Oklahoma (1955)
An Oklahoma law prohibited persons who were not licensed optometrists or ophthalmologists to fit lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law, bringing a suit against the state Attorney General, Mac Q. Williamson. Argues this is a violation of he 14th due process clause.
In a unanimous decision, the Court held that while the law may have been "needless" and "wasteful," it was the duty of the legislature, not the courts, "to balance the advantages and disadvantages of the new requirement." The Court emphasized that "[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought."
“The Oklahoma law may exact a needless, wasteful requirement in many cases.”
Douglas; Williamson v. Lee Optical of Oklahoma (1955)
“The day is gone when this Court uses the Due Process Clause of the 14th amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. We emphasize again what Chief Justice Waite said in Munn v. Illinois, “For protection against abuses by the legislature the people must resort to the polls not the courts.”
Douglas; Williamson v. Lee Optical of Oklahoma (1955)
Ferguson v. Skrupa (1963)
A Kansas statute made it a misdemeanor to enter into contracts for "debt adjusting" (a practice in which a debtor agrees to pay a monthly fee to an adjustor who then makes payments to the debtor's creditor). Skrupa was in business as a "Credit Advisor" and engaged in this practice. A lower court held that the Kansas statute was an "unreasonable regulation of a lawful business" and struck it down.

Black- Laws are presumed to be constitutional. The question of whether laws is good or not belongs to the legislature, not the courts.
“The doctrine that prevailed in Lochner…and in like cases…has long since been discarded.”
Black; Ferguson v. Skrupa (1963)
• Plessy v. Ferguson (1896)
o Plessy was 1/8th black, but he was still considered a colored person according to Louisiana law. Plessy maintained that not being allowed to sit in the white section of the train was an unconstitutional violation of his 13th and 14th Amendment rights.
o Majority opinion said that racially segregated public facilities do not violate the 14th Amendment Equal Protection clause.
o 14th Amendment not designed for social equality.
“If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane”
Justice Brown; Plessy v. Fergusson
There is no caste here. Our constitution is color blind, and neither knows nor tolerates classes among citizens. In the respect of civil rights, all citizens are equal before the law…”
Justice Harlan in Dissent) Plessy v. Ferguson (1896)
• Brown v. Board of Education (1954)
o Separate but equal is inherently unequal. With this decision, the court overruled the decision made in Plessy v. Ferguson. Court mandates that racially segregated schools are unconstitutional in a unanimous decision.
“A sense of inferiority affects the motivation of a child to learn. Segragation with the sanction of law therefore has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system”
Brown v. Board of Education (1954) (Earl Warren)
o “We conclude that, in the field of Public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal”
Brown v. Board of Education (1954) (Earl Warren)
• Boling v. Sharpe (1954)
o Companion case to Brown. Court decides that 5th amendment prevents segregation in Washington DC because racially segregated schools deprive students of liberty, thereby making it a depravation of due process. Boling is known for being a use of substantive due process.
• Brown v. Board of Education II (1955)
o Implementation of the Brown I ruling. Local federal courts are charged with dealing with implementation. Very ambiguous desegregation instructions provided.
: “While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable star towards full compliance with our May 17th, 1954 ruling”
Brown v. Board of Education II (1955) (warren)
• Cooper v. Aaron (1958)
o Unanimous decision of the court signed by all nine justices in response to Governor Faubus of Arkansas obstructing the efforts of desegregation. Court declares that the Constitution is supreme and the court is charged with interpreting the constitution, therefore what the court says is supreme. State officers CANNOT defy the court.
“This decision (Marbury v. Madison) declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected the court and the country as a permanent and indispensible feature of our constitutional system”
Cooper v. Aaron (1958) Per Curiam
• Palko v. Connecticut (1937)
o Frank Palko tried for first-degree murder, convicted of second-degree murder instead. State retried Palko and secured first-degree conviction on second attempt. Palko argued that prohibition against double jeopardy in the 5th Amendment protected him because the 14th Amendment applied it to the states.
o Ruling was that 5th amendment prohibition against double jeopardy is not “Fundamental enough” to be incorporated, according to Justice Cardozo. Only things that are fundamental enough in the concept of ordered liberty can be incorporated.
In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the 14th Amendment, become valid against the states”
Cardozo; Palko v. Connecticut (1937)
• Adamson v. California (1947)
o Similar to Palko Case. Adamson argued that his right against self-incrimination under the 5th amendment was incorporated by the 14th amendment.
o Ruling was that 5th Amendment right against self incrimination was not fundamental enough to be incorporated.
“It accords with the constitutional doctrine of federalism by leaving to the states the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship. This construction has become embedded in our federal system as a functioning element in preserving the balance between national and state power”
Reed; Adamson v. California (1947)
I further contend that the “natural law” formula which the court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution”
Black, dis; Adamson v. California (1947)
“I cannot consider the bill of rights to be an outworn 18th century strait-jacket, as the Twining opinion did. Its provisions may be thought outdated abstractions by some and it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged form century to century wherever excessive power is sought by the few at the expense of the many”
Black, dis; Adamson v. California (1947)
Engel v. Vitale (1962)
o Issue at hand is one of school prayer. Supreme court ruling establishes that 1st Amendment prohibits even voluntary, non-denominational school prayer.
“The Establishment clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate”
Black; Engel v. Vitale (1962)
Griswold v. Connecticut (1965)
o Griswold publicly violated a Connecticut statue that prohibited the use of contraception, arguing that the law violated the 14th amendment. Court sided with Griswold, overturning Connecticut law under an argument that “zones of privacy” were created by the 1st, 3rd, 4th, 5th, and 9th amendments.
“I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons, I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional”
Black dis; Griswold v. Connecticut (1965)
“But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do”
Justice Stewart in dissent; Griswold v. Connecticut (1965)
• Miranda v. Arizona (1966)
o Miranda charged with armed robbery, cops convinced him to sign a confession to a different crime and rape. Argued that confession was a violation of Fifth Amendment right to self-incrimination. Court ruled that 5th amendment prohibition against self-incrimination guarantees suspects a set of basic procedural rights. Incredibly broad statement by court.
In conclusion: nothing in the letter or spirit of the constitution or in the precedents squares with the heavy-handed and one sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities”
Justice Harlan in dissent; Miranda v. AZ
• Brandenburg v. Ohio (1969
o Brandenburg was the leader of a local KKK group and delivered a hate speech. Ohio convicted him under a law that made it illegal to advocate terrorism as a means of overthrowing established government. Court ruled that 1st amendment protects political speech, so long as it does not present an imminent threat of lawless action, with “imminent threat” becoming the new legal standard.
• Roe v. Wade (1973)
o Zones of privacy encompass abortion decision due to its breadth. Establishes a framework for when abortion is permissible, breaking pregnancy into three distinct terms in order to balance a woman’s rights and state interests in protecting an unborn life.
• Powell v. McCormack (1969)
o Adam C. Powell won reelection to the House despite accusations of financial improprieties. Majority of house voted to exclude Powell. This case fell under the political questions doctrine, namely that if there is a matter entrusted to a specific branch, should the matter be left to that branch? The Court agreed to take the case and in doing so opened up a whole new area to legal scrutiny. Court rules that Congress cannot exclude a member who meets eligibility requirements. However, Congress can expel a member with a supermajority. Court can now oversee internal organization of other branches
“Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch”
Warren • Powell v. McCormack (1969)
• US v. Nixon (1974)
o Nixon refused to give up his private tapes, citing executive privilege. Congress ruled that the President cannot claim executive privilege in absolute. Unqualified terms to protect himself from judicial proceedings.
• INS v. Chadha (1983)
o Legislative veto overruled Attorney General in order to force Jagdish Chadha’s deportation. Chadha argued that legislative veto violated separation of powers. Supreme court ruled that there is a finely wrought, exhaustive procedure that was intended for law making and that the legislative veto does indeed violate the separation of powers. ****Quesiton of what the Constitution says versus what is workable********
“With all the obvious flaws of delay, untidiness, and potential abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the constitution”
Burger; INS v. Chadha (1983)
“ Without the legislative veto, congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire political landscape, or in the alternative, to abdicate its lawmaking function to the Executive branch and independent agencies”
Justice White in dissent ; INS v. Chadha (1983)
• Bowsher v. Synar (1986)
o By removing the Comptroller General, who was charged with the execution of a congressional act, Congress is violating the separation of powers. Congress cannot have control over someone who is responsible for the execution of the laws.
• Morrison v. Olson (1988)
o Ethics in Government act authorized creation of “independent counsels” to investigate executive branch officials if Attorney General thought an investigation was warranted. Argument was that such an official violated separation of powers because independent counsel was not accountable to anyone. Court ruled that since the independent counsel was an inferior officer, and does not impermissibly interfere with executive functions.
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such a fashion as to preserve the equilibrium the Constitutions ought to establish…Frequently an issue of this sort will come before the court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by careful and perceptive analysis. But this wolf comes as a wolf”
Scalia in dissent • Morrison v. Olson (1988)
• Mistretta v. US (1989)
o Congress may obtain assistance with its functions, so long as some guiding principle exists. Congress was attempting to create national sentencing guidelines via an independent commission in the judicial branch. Argument that it was an unconstitutional exercise of legislative power was struck down.
: “In other words, the Constitution, at least as a per se matter, does not forbid judges from wearing two hats; it merely forbids them from wearing both hats at the same time”
Blackmun• Mistretta v. US (1989)
• National League of Cities v. Usery (1976)
o National League of Cities argues that Fair Labor Standards act exceeds interstate commerce powers under commerce clause and violated state sovereigny. Court ruled that Congress cannot regulate or displace the state in regulating what are traditionally state functions under police powers.
“My brethren do more than turn aside longstanding constitutional jurisprudence that emphatically rejects today’s conclusion. More alarming is the startling restructuring of our federal system and the role they create therein for the federal judiciary. The Court is simply not at liberty to erect a mirror of its own conception of a desirable governmental structure”
Justice Brennan in dissent• National League of Cities v. Usery (1976)
“My brethren thus have today manufactured an abstraction without substance, found neither in the words of the Constitution nor on precedent. An abstraction having such profoundly pernicious consequences is not made less so by characterizing the 1974 amendments as legislation directed against the States qua States”
Justice Brennan in dissent• National League of Cities v. Usery (1976)
• Garcia v. Samta (1985)
o Overturned National League of Cities. Idea of traditional state government functions that was established in National League of Cities is declared to be unworkable and unwise. Federalism is to be protected by the political process, not by judges.
“The Court today surveys the battle scene of Federalism and sounds a retreat”
Justice O’Connor, in dissent• Garcia v. Samta (1985)
• US v. Lopez (1995)
o Lopez argued that Gun Free School Zones Act of 1990 violated commerce clause authority because it provided for federal penalties for gun possession. Court ruled that Congress cannot use commerce clause to regulate behavior that does not regulate economic activity. Majority opinion believes this creates police power for the federal government.
“The proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce”
Rehnquist • US v. Lopez (1995)
In a future case, we ought to temper our Commerce Clause Jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that clause”
Thomas, concurring • US v. Lopez (1995)
The economic clinks I have just sketched seem fairly obvious, why then is it not equally obvious, that in light of those links, that a widespread, serious, and substantial physical threat to teaching and learning also substantially threatens the commerce to which that teaching and learning is inextricably tied?”
o Breyer, in dissent US v. Lopez (1995)
• Printz v. US (1997)
o Law enforcement officials contended that the national government lacked the authority to force state police to perform background checks under the Brady Act. The Court ruled that Congress cannot force state officials to perform a federal duty because of a Constitutional system of dual sovereignty
“Because there is no constitutional text speaking to this precise question, the answer…must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court”
Scalia • Printz v. US (1997)
• Alden v. Maine (1999)
o Maine officials sued the state for violating overtime provisions of Fair Labor Standards act and sought damages in federal court, where their suit was dismissed. However, they filed the same claim in state court where the Main Supreme Court argued that state sovereign immunity prevented the state from being sued as a result of federal legislation. US Supreme Court ruled that Congress cannot limit state sovereign immunity in state court, state can only be sued if it consents to suit in state court.
If the Court’s reasoning is correct, the 11th Amendment itself was unnecessary”
Souter dis • Alden v. Maine (1999)
“Hence the flaw in the Court’s appeal to federalism. The state of Maine is not sovereign with respect to the national objective of the FLSA. IT is not the authority that promulgated the FLSA, on which the right of action in this case depends. The authority is the United States, acting through Congress…”
Souter dis • Alden v. Maine (1999)
• US v. Morrison (2000)
o Morrison claimed that Congress laced authority to enact the provision in question under the commerce clause or the fourteenth amendment, which congress identified as their source of authority for passing the Violence Against Women Act, which gave congress the power to remedy gender motivated violence. Court ruled that Congress cannot regulate private discrimination under the 14th Amendment or the Commerce clause if such activity is not related to commerce.
, “If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia and not by the United States”
Rehnquist • US v. Morrison (2000)
Bush v. Gore (2000)
o Hand recount scheme violates 14th Amendment equal protection clause. Presidency goes to George W. Bush, because the recount is called off.
• Home Building and Loan vs. Blaisdell (1934)
o Emergency and crisis may furnish occasion for exercise of power. Constitutional meaning can vary with need and context.
“While emergency does not create power, emergency may furnish the occasion for the exercise of power. The constitutional question presented in light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions. Thus, the war power of the Federal Government is not created by the emergency of war but it is a power given to meet that Emergency”
Hughes • Home Building and Loan vs. Blaisdell (1934)
“For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon a clearly stated prior law, is judicial adventurism of the worst sort”
Scalia dis • Rasul v. Bush (2004)
Rasul v. Bush (2004)
o Rasul’s petitioned for a writ of Habeas Corpus while Rasul was being held in Guantanamo Bay. A district court ruled that Guantanamo was outside the sovereign territory of the US and as such Rasul had no right to the write. The Supreme Court ruled that Guantanamo Bay falls under US jurisdiction and that habeas corpus is not dependent on citizenship.
• Boerne v. Flores (1997)
o Issue at heart is section 5 of the 14th Amendment. Court rules that Congress cannot enforce a constitutional right by changing what it means. Argument is that congress is trying to change the First Amendment meaning using 14th amendment power. Supreme Court is telling congress to back away. Interpretation is the Court’s sphere.
The design of the Amendment and the text of section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the 14th amendment’s restrictions on the states. Legislation which alters the meaning of the free exercise clause cannot be said to be enforcing the clause. Congress does not enforce a constitutional right by changing what the right is. IT has been given the power to enforce, not the power to determine what constitutes a constitutional violation”
Kennedy • Boerne v. Flores (1997)