Con Law Outline – GULC – Cook – F2007 – 1

Constitutional Law – GULC – Cook – Fall 2007 – 1

I.                   INTRODUCTION

a.       The Counter-majoritarian dilemma – the role of the court within the governmental framework. What is the justification for the power to overrule the majority?

i.      Example: Brown v. Board of Education

1.      Held that separate but equal has no place in public education. But the central question is what does that holding really mean?

2.      After the criteria shifts – schools based on residency don’t really change the situation because there is residential segregation already existing.

3.      Should the law be able to reach this issue? Brown’s facts suggest only de jure racial classification, and are not applicable to de facto classification. With that intention, the problem will not really be solved.

b.      Frameworks for interpretation:

i.      Originalism

1.      Explores what the framers “intended” by exploring the factual situations and historical context surrounding the adoption of the constitution and applies to the facts in a neutral way.

2.      Problem:

a.       It is sometimes difficult to ascertain what the “intention” is – meaning of the word at the time and the commonly understood meaning.

ii.      Textualism

1.      The notion that the words have a plain meaning, and that this plain meaning should be applied to the factual situation. No matter what the intent was in framing a section, it’s what is said that matters.

2.      Problem:

a.       In Brown v. Board, the historical context does not suggest that their interpretation doesn’t hold water when applied to the public schools.

b.      Probably the predominant meaning is not the interpretation in Brown, but can be argued that textualism would allow for this interpretation.

iii.      Process Theory

1.      Looks at the political process to determine whether to intervene in a situation. Sees the primary role of the court is to determine whether democratic process is working properly.

2.      Answers the counter-majoritarian dilemma

3.      Guards the operation of democracy by facilitating democratic processes and institutions.

4.      In Brown v. Board for example, blacks had not voice and no representation, oppressing a group that had no chance to vote against those laws and participate in that process.

5.      Doesn’t guarantee winners in every vote or solve all the problems. There are certain histories that warrant additional concern and the court will not be concerned with winners and losers in general who are on an equal playing field or if it won’t impact a particular group over time, but where there is a history of malice, then the court will be concerned and apply additional scrutiny.

6.      Process theory offers another solution to what judges can do while remaining neutral

iv.      Natural Rights Theory

1.      Have the task of protecting and are justified in acting where they are being infringed.

c.       Criteria of Legitimacy for a Constitution

i.      The Constitution required ratification by only 9 states – was it really valid without ratification by all 13 colonies?

1.      Representation of State Interests:

a.       Several states were concerned about abdication of their sovereignty

b.      Rhode Island held out for a long time in accepting the constitution.

c.       Bicameralism was adopted as means of pacifying those with concerns about retention of equal power after ratification.

2.      Argued that the Articles of Confederation were really only a treaty, so 9 states essentially dissolved the treaty and created a new arrangement.

ii.      The Constitutional framers consisted of wealthy, politically influential white males, excluding a vast majority of the population at the time. How can an agreement made by these elites be biding on everyone?

1.      Put a process in place that made change possible in the future.

2.      Thought they were making good decisions.

3.      Not everyone is going to be represented, but the individuals who can vote will represent the people more generally understood.

4.      Burkeian notion of representation assumes too much about the integrity of politicians

5.      There will always be a divergence of ideas – the universal franchise was seen as the solution.

6.      Certain members of the population are more capable of leading – don’t want the illiterate to govern.

7.      Propertied peopled tended to be more educated, etc. and had more of a stake in the polity – more of a vested interest in the success of the government and in policies.

8.      Without the franchise, though would anyone else even be able to qualify?

a.       View of some people as inherently incapable of acquiring the capability would only perpetuate the status quo.

iii.      Fundamental compromises with regard to slavery – without these the constitution would not have been ratified in the southern states (concerns about representation etc.)

1.      Articles in the Constitution regarding fugitive slaves

2.      Counting slaves as 2/3 of a person for purposes of determining population for representation.

iv.      While there may be some questions about legitimacy, the passage of time can make what was illegitimate, legitimate

1.      Similar to Contract Law:

a.       The contract is ratified by the benefits received by future generations which then concede legitimacy

d.      Interpretation

i.      When there are conflicts, how do we determine the interpretation of the Constitution – are there rules of construction that should always be applied and how should they be interpreted?

1.      Strict Construction/Madison’s view:

a.       Doesn’t think that the Constitution allows for broad interpretation à could just run roughshod over the states’ rights.

b.      Argued for a plain meaning rule

i.      The grant of powers to the federal government is not a general grant with powers excepted to the states; it is instead a grant of particular powers, leaving the general mass in other hands.

c.       Strict constructionists – federal power should be reined in.

d.      In regard to the national bank – necessary and proper clause of the federal constitution.

i.      Show that legislation is absolutely necessary

ii.      Wants to define necessary as indispensable

iii.      Without this very limited interpretation, power of the federal government becomes nearly unlimited.

e.       Views the 10^th Amendment as very important – the powers not delegated to the federal government are reserved to the states or to the people.

2.      Hamilton’s view of the Bank and of Constitutional Interpretation – Deferential Standard

a.       Implied powers are also in the constitution.

b.      Necessary and proper justifies the implied powers if Congress has made the determination that it is necessary and proper to create a bank. The courts should pay deference.

c.       Refuted the argument that the construction should be limited to what is absolutely necessary:

i.      The suggested interpretation of necessary is so restrictive as to mean only that which would otherwise render a power nugatory. However, the more common understanding of the term includes needful, requisite, incidental, useful or conducive.

ii.      Furthermore, if the clause is interpreted in this way, it will make the operation of the government nearly impossible because every action must hen survive a sever test each time it must justify that an action is in fact necessary and not merely useful to carry out the powers granted to it.

d.      Really argued whether those grants of power should include only explicit grants of power or also include implicit grants of power.

e.       Did not believe it was really possible that the framers intended that they only be endowed with explicit powers.

i.      If necessary is to be construed as indispensable, what is the process of determining whether it really is so? Who would hear the challenge?

ii.      Would have to have a body that would determine what is indispensable and is really a value judgment about whose way is really indispensable.

iii.      Would the burden be simply to show that there are other means?

iv.      Is, then, the burden too high for Congress because there will always be another way?

v.      How could the court even manage this?

1.      No manageable set of criteria

2.      Will always be alternative

ii.      McCulloch v. Maryland

1.      Marshall had already decided in Marbury v. Madison that the court is the final arbiter.

2.      Marshall’s methods of Constitutional interpretation:

a.       Appeals to the text and rules for construction

i.      The “plain meaning” suggests an interpretation that should be adhered to.

ii.      Definition of “necessary” – “don’t need to strain the meaning” the suggested interpretation may be one of the ways of understanding the word, but the common understanding doesn’t have to have that nuanced meaning. The more popular meaning is consistent with the task before Congress.

1.      It is not subjectively what he thinks the word means.

2.      The problem, of course, is that not all people have the same idea of what a word means (not taking a poll of what people’s opinions are)

b.      Looks to the Structure of the text for guidance as to how the phrase should be interpreted

i.      Points to Article I Section 9 Limits on Congress

1.      Could have excluded the power to create corporations/banks (this was discussed during the framing)

ii.      Looks to the phrasing of the necessary and proper clause

1.      Could have included the term “absolutely necessary”

a.       This option was discussed during the framing and was decided against

iii.      Looked to the 10^th Amendment

1.      Could have included the word “expressly” but chose not to – left open the possibility that there could be implied powers.

2.      “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”

iv.      Argued that the text is not actually susceptible to the suggested interpretation based on other clauses where the framers showed that they understood the implications of the wording and chose not to impose limitations.

c.       Balance created by the new constitution – Marshall sees federal government as being supreme. If there is a conflict, the federal law is supreme – state law must give way. This is the basis for his decision (Article 6 – Supremacy Clause).

d.      Prudentialism (Looks to the Likely consequences of the decision)

i.      Alternatively may look at the consequence of whether the court makes the decision (it may be better left to another body to make the decision)

ii.      Have to be able to rank the consequences in order to come out with a decision

iii.      Consequentialists say you don’t have to worry any more about biases, etc.

iv.      Pragmatism – do what has the best consequences – makes the judges policy makers the same type of inquiry engaged in by legislators

v.      Argument against this view: If the judges are really lawmakers, they should do so more overtly.

e.       Appeals to History

i.      Originalism – what the framers intended at the time and broadens scope to what the general understanding was at the time.

1.      Example: Jefferson’s argument that they had a debate about an issue and rejected that argument because they did not want the federal government to have that power and drive out private business.

2.      Marshall doesn’t mention this history, but the framers did look at this. Marshall answers this by saying that it has already been debated since then by Congress and decided that it is necessary.

3.      It is difficult to base a decision on “what was intended” especially when leaping from one decision and applying it to another.

ii.      Precedent

1.      May be a good thing – but should not be blind adherence to precedent. Has no independent value for the pragmatist/realist.

e.       Justifications for Judicial Review

i.      Supervising and resolving inter and intra governmental relations – regulating between the states and federal and between the branches. Need an arbiter between the governments for some conflicts without some institution to establish what the law is.

ii.       Martin v. Hunter’s Lessee – Uniformity of interpretation

1.      VA Court of Appeals refused to obey the Supreme Court’s mandate reversing the judgment in a case involving preemption of state laws by federal treaties.

2.      The court held that there cannot be multiple interpretations – a state cannot invalidate treaties – supremacy clause.

3.      No country would enter into treaties with the US if they are subject to question of every state where it has application.

iii.      Application to federal Branches – Marbury v. Madison

1.      Dispute between judiciary and executive.

2.      Why would Marshall accept jurisdiction in this case – why step into this dispute.

3.      Supreme Court stepped in to say that an act of Congress was unconstitutional – could have been decided on more technical grounds, but Marshall deemed the act unconstitutional because he feared he might be impeached if he didn’t toe the line with the Jeffersonians.

iv.      Is it within the power of Congress to take away the power of the Judiciary?

1.      Article II seems to suggest that Congress has the power – it gives them the power to establish appellate jurisdiction in the Federal Courts (Section 2(2)).

2.      Despite this appearance of power, Congress has continued to acquiesce in the state of things and has never challenged the power of the judiciary to question it.

v.      Preserving fundamental values:

1.      Difficult to know what this means

2.      Judges can deliberate over preservation of enduring values that legislators do not have – the court is very important in that respect.

vi.      Protecting the integrity of the democratic process – Ely’s Theory

1.      Ely says that the court should intervene when

a.       The process has been distorted by majoritarianism because accountability has gone out the window

b.      Where legislation impacts insular and discrete groups

c.       Also where fundamental rights are in question

2.      In the absence of the above, the court should pay deference to the democratic process.

II.                THE PROTECTION OF PROPERTY RIGHTS & THE NATURAL LAW TRADITION

a.       Fletcher v. Peck (1810)

i.      Land grant scandal – a majority of the GA legislature had been bribed to convey 35 million acres of state land to private companies at a bargain price. The legislature later rescinded the grant, but not before large parcels had been sold to northern investors. A suit on a warranty of title presented the question whether the rescission could affect the rights of bona fide purchasers not themselves part of the initially fraudulent scheme and without notice of it.

ii.      The harm caused by the fraudulent sale occurred because the legislature should have sold for market value, and therefore selling at a lower price harmed the GA coffers.

iii.      Marshall protected the property rights of the northern investors who had purchased without notice of the defect.

1.      The market would therefore be bolstered because investors are more confident that once they have a vested property interest, the court will not intervene.

2.      These buyers could have had constructive notice – should have known based on the circumstances of the deal – but Marshall’s decisions has more to do with the court as an arbiter between states and deference to property owners – sees property as central to creation of the new nation.

b.      Sources of Natural Law Rights:

i.      Locke would argue that the reason why the civil compact was created

1.      State of nature more like the Garden of Eden.

2.      Wealth creates problems and currency that allows for amassing wealth. Jealousies are created that make government necessary. Therefore, society is primarily about property.

3.      Constitutional deference to property – contracts clause, response to debtor relief legislation to make sure that did not happen again.

a.       Ogden v. Sanders

i.      Marshall’s dissent: Individuals do not derive from government their right to contract, but bring that right with them into society; that obligation is not conferred upon contracts by positive law, but is intrinsic, and is conferred by the act of the parties.

1.      He accepted the right of states to pass laws affecting remedies, but argued against bankruptcy laws that turn contracts into “de facto” conditional promises.

4.      Property was seen as an extension of the individual and the social compact was largely designed to protect whatever distributions of wealth came about through the varying talents and efforts of the members of society.

5.      The three “absolute rights of individuals” (Blackstone):

a.       The right of personal security which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, hi health, and his reputation

b.      The right of personal liberty, which consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law, and

c.       The absolute right, inherent in every Englishman, of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.

c.       Calder v. Bull – The Judicial Protection of Vested Rights

i.      A Connecticut Probate Court had disapproved of a will designating the respondent as beneficiaries, allowing petitioners to inherit as decedent’s heirs at law. The Connecticut legislature passed a resolution setting aside the decree and granting a new hearing, at which the will was approved. To petitioner’s claim that the legislative act was an ex post facto law, the Court responded that the clause was limited to criminal legislation. The Supreme Court considered whether, apart from this or any other specific provision of the Constitution, a government could deprive a citizen of a vested property right.

ii.      Chase’s Opinion:

1.      The court held that no rights had vested in the court’s original decision, but that fundamental rights are limitations on the legislature’s power, and therefore, courts can reference this moral code.

2.      “There are act which the federal or state legislature cannot do without exceeding their authority.” “An act of the legislature contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.”

iii.      Iredell’s Opinion:

1.      Even the ablest and purest men have differed on what these abstract principles are.

2.      The ideas of natural justice are regulated by no fixed standards – all that the court could properly say in such an event would be that the Legislature possessed of an equal right of opinion, had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of justice.

iv.      This case gets to the fundamental question of the natural rights framework – when a judge believes the constitution is silent, is he ever justified in turning to natural law principles?

1.      Conflict exists in defining what these principles are

2.      Epistemological question as to what are these rights

3.      Lending the “natural law” title makes something seem immutable – may come into question later, but harder to change.

v.      The Antelope (1825)

1.      Slave ship was raided by pirates – slaves then confiscated by the US- the question was whether the US should return the slaves to their “owners” or set them free.

2.      Marshall turned to positive law even though he sees the moral question.

3.      Applied “law of nations” as if it were some positive law and makes the decision as if it is mandated, but really a policy decision.

III.             MARSHALL ON INTERSTATE COMMERCE – REGULATION OF THE NATIONAL ECONOMY

a.       Gibbons v. Ogden

i.      FACTS
NY state legislature granted R Livingston and R Fulton the exclusive right to operate steamboats in NY waters for a period of years. L&F assigned the right to Ogden. O brought action to enjoin Gibbons from operating steamboats between New York and New Jersey. G stated that his boats were licensed pursuant to an act of Congress, and that the licenses entitled him to navigate between the states, notwithstanding the state granted monopoly.

ii.      RESULT
Gibbon’s license under the federal statute entitled him to engage in interstate navigation and trade, notwithstanding O’s claims to exclusive franchise.

iii.      RATIONALE
Strict construction requires looking at the understood meaning of a word. The interstate commerce clause states that Congress shall have power to regulate commerce… among the several states…” Commerce, properly understood, not only encompasses trade, but also includes intercourse and navigation.

1.      Commerce among the states cannot stop at the external boundary line of each state, but must be introduced into the interior. Commerce among the states must, of necessity, be commerce with the states.

a.       The state argued that the method of interpretation should be narrow – otherwise, does a disservice to the states.

b.      Marshall believes that his interpretation is a strict construction – there has to be some question of the purpose of the statute, but the state wanted to define commerce to only mean “traffic, to buying and selling”

i.      Marshall’s interpretation is that in encompasses the entire intercourse – the entire understanding of the term to include navigation.

2.      The ability to regulate interstate commerce does not interfere with the state right to regulate commerce within its boundaries, because Congress has no power to regulate beyond the power granted in the interstate commerce clause.

a.       Internal matters will be left to the state unless it is incidental to the power of the federal government. But, if Congress stepped in legislated, the supremacy clause kicks in.

b.      States still have the power to regulate health and inspection laws – this happens before commerce actually happens, and is more like preparation for commerce

3.      Should there be a collision between state and federal regulations of commerce, it is immaterial whether those laws were passed in virtue of the concurrent power. The acts of the state legislature must yield to the law of Congress.

a.       Marshall held that the game has changed under the federal constitution – 10^th Amendment does allow some sovereignty in the states, but the federal laws are supreme law of the land.

b. Wilson v. Black-Bird Creek Marsh Co.

i.      Addressed constitutionality state law in absence of a preemptive federal regulation.

ii.      HELD: Although the federal government may have the power to act in a particular area, when it has not enacted any legislation in regard to the current question, the state law is not in violation of the commerce clause.

IV.             THE TANEY COURT – INTERSTATE & FOREIGN COMMERCE AND PERSONAL MOBILITY

V.                THE TANEY COURT & SLAVERY

a.       Groves v. Slaughter

i.      FACTS:
MS statute prohibited the importing slaves into the state for sale there – challenged as an impermissible restriction of interstate commerce.

ii.      ISSUE – If slaves were an item of commerce, Congress could prohibit the interstate slave trade by ordinary legislation under the commerce power, but the Marshallian view of congressional exclusivity suggested in Gibbons cast doubt on the validity of any state law regulating the slave trade, it did not distinguish between MS’s pro-slavery protectionist law and Ohio’s ban on the slave trade as its prohibition of slavery in general. Therefore, the court had to straddle the dilemma.

iii.      Mississippi argued that it was an internal state commerce issue – the majority avoided the issue by saying that the constitutional provision required statutory activation, and was therefore not ripe for challenge.

iv.      McLean’s Concurrence:

1.      It is a power of the states, because slaves are not articles of commerce

a.       The constitution recognizes them as 3/5 of a person rather than the traditional notion of property.

v.      Taney’s opinion:

1.      Slavery is within the province of the states and Congress cannot intervene.

vi.      Baldwin’s Opinion:

1.      Can’t allow slavery and then prohibit the trade.

2.      Furthermore, under the privileges and immunities clause, one cannot restrict the rights of citizens of other states simply because they are from outside – can result in discord between the states.

b.      Prigg v. Pennsylvania

i.      Prigg forcibly captured a free black woman who he had inherited a slave. He was charged in PA for removing an alleged fugitive, and PA did not allow self help. Prigg claimed that the PA statute was unconstitutional.

ii.      Article IV §3 Said that a person who escaped to another state could not be released from servitude.

iii.      HELD:

1.      Act of Pennsylvania is void and unconstitutional because it punishes the act of seizing and removing a slave by his master, which the constitution was designed to uphold.

2.      Congress has exclusive jurisdiction over this matter – Fugitive Slave Act is absolute.

iv.      Majority – Story

1.      Article IV was an essential component of the ratification of the Constitution

a.       Self executing – so even if the Fugitive Slave Act were unconstitutional, every law that frustrates the purpose of Art IV is unconstitutional. Potentially disruptive to the balance between slave and non-slave states.

2.      Fugitive Slave Act

a.       Constitutional because it was necessary for Congress to regulate between the states to keep the peace.

b.      Requirement that owners seek permission to get slaves back was in conflict with this Act.

3.      Exclusive jurisdiction

a.       Slave owner is clothed with the entire authority in every state to capture his slave so long as he does so without violence.

b.      Is Article IV another clause giving Congress power to restrain the states from assisting returning fugitives?

i.      Multiple abuses took place – abolitionists made more stringent requirements for return of fugitive slaves, etc.

c.       Dred Scott v. Sanford – 1857

i.      Facts:

1.      Slave argues that having been taken into a free state mad him free under the Somerset Rule

a.       SR: Out of English Common Law – since no state was required to be a slave state and jurisdiction that had not created slavery by positive law, once touched by a slave, set the slave free.

ii.      ISSUE:

1.      For Scott to have standing in diversity, he needs to be a citizen of one state.

2.      Is Scott a citizen of the state of Missouri?

iii.      HOLDING: No, Scott is not a citizen.

iv.      Majority – Taney

1.      Could simply have said that the Somerset rule doesn’t apply or that Scott reverted to slavery when he left Missouri, or that freedom does not make him a citizen, but Taney’s agenda was pontification on the constitutionality of the Missouri compromise.

a.       Slaveholders have 5^th Amendment Right to property – nothing a federal enactment does can change that – have a right to enjoy property in every state – to say that Dred Scott was free would be an unlawful taking under the 5^th Amendment.

b.      Politics surrounding this decision meant that non-slave states could not restrict use of slaves within their jurisdiction

i.      Slaveholders from slave states could contract with companies in non-slave states for the use of the slaves as cheap labor, and the state could not intervene.

2. Primary Framework – Originalism

a.       Intent of the framers could not have been to include blacks in the possible citizenry, as they had always been considered at the level of property throughout the history of the framing.

b.      Intent of Framers and commonly understood phrases used in Constitution

i.      Connection to Article IV

1.      Cannot be afforded citizenship in other states based on his state granted citizenship status

ii.      Prohibitions on Marriage – interpreted as restricting citizenship.

1.      Implication of these restrictions, though is that a right has been taken away – suggests that a right existed, changed by regulation. Throws Taney’s argument into doubt.

c.       Where trying to understand the definition of citizenship in history – is Taney’s lens broad enough?

i.      Avoids the controversy that truly took place

ii.      Example:

1.      Early state codes – classification of persons did not include slaves until 1640s, race was originally not an issue – then had to have laws to declare who was a slave and who was not – hence miscegenation laws.

2.      Prejudice did not cut people off completely from civil rights even in states where they could have been slaves à relative inclusion in political society in many instances despite prejudice – Taney’s argument is too broad – may exclude them from certain social rights without excluding them from political rights.

3.      Dissent – J. Curtis

a.       To find out if free Blacks are citizens of the US, it is only necessary to know whether such persons were citizens o any of the states under the Confederation at the time of the adoption of the Constitution.

i.      In some states they were full-fledged citizens

ii.      Some were even electors

b.      Curtis maintain idealism, despite what political actors do at the time

i.      Principle over practice. Do as I say, not as I do

c.       Declaration of Independence: If wouldn’t be hypocritical for the framers to believe in the text of the declaration as applying to all men, since doing otherwise would be doing more evil than good.

d.      Articles of Confederation:

i.      The framers knew that blacks were citizens of some states, yet they signed it anyway.

ii.      History: IN drafting Article IV, a provision stating that only “free WHITE inhabitants” was voted down 8-2 with one state split. This is a strong argument- we know what they considered and what they rejected.

e.       Congress’ Laws

i.      Naturalization

ii.      Militia Law: The language of the law says “every free, able-bodied, white male citizen.”

1.      An assumption that one but white persons are citizens would be as inconsistent as that all citizens are able-bodied or males.

d.      Lincoln and Douglas Debate over the Constitutionality of Dred Scott – Judicial Supremacy and Dred Scott

i.      Lincoln – Says he would challenge Taney’s decision, in Congress, as a Representative on political grounds.

ii.      Douglas – Criticizes Lincoln for not respecting the decision, in that there would be no security for one’s property if court decisions weren’t upheld. Douglas thinks that one branch must be supreme – if not the SC, then it must be Congress. Misses Lincoln’s point.

iii.      Lincoln – clarifies position by saying that he would oppose the ruling on political grounds; defends his stance by saying that each branch is responsible to support the Constitution independently, and as he understands it, regardless of how the SC decides.

1.      Points to Andrew Jackson’s crack at the bank after the SC ruled on it.

2.      Citizens should have their own constitutional take, and vote for those that share one’s ideals.

a.       Picks up on Jefferson’s vision of co-equal branches interpreting the constitution; so what happens when branches disagree? Respecting specific cases, but not following the case law on political grounds.

3.      He has sworn to uphold the Constitution, and he therefore has the power to interpret it.

4.      Accountability for his interpretation, even more so than for supreme court returning the issue to the political sphere.

iv.      Douglas – Criticizes the position by hypothesizing that Lincoln would create a “Litmus Test” for judicial nominees, thereby only appointing nominees that would be tools of the Executive Branch.

v.      Lincoln – Douglas would impose one branch’s ruling on all departments and branches.

VI.             “AND THE WAR CAME”: THE PRESIDENT AS COMMANDER IN CHIEF AND THE PRESERVATION OF THE UNION

a.       The Debate over Secession

i.      Lincoln viewed any secession as unconstitutional

ii.      Benjamin and others saw the constitution as being capable of being disbanded – anything that has been ratified can be unratified, any union that has been created by a vote can thereby be disbanded. Furthermore, the Constitution was created from a perpetual compact when 9 states ceded from it – therefore, this “perpetual compact” can be undone by the same actions.

iii.      Lincoln turns to contract law – cannot be dissolved without consent of all parties.

b.      The Authority of the President to Repel Attacks Against the Union

i.      The Prize Cases

1.      FACTS:

a.       President has no power to initiate or declare war against a foreign nation or domestic states, but Congress passed legislation to authorize the president to call out the militia and use the military and navy to suppress insurrection.

b.      The president did not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.

i.      The southern states had brought violence on Fort Sumter so Lincoln brought war.

ii.      Congress was not in session yet. Executive order was issued to cut off life line to foreign nations – ordered that ships could not deliver to southern states.

iii.      Generally was not the practice even in times of war to confiscate property, but Lincoln sought to prevent insurrection, and believed he had the power to respond.

2.      HOLDING:

a.       Congress retroactively authorized Lincoln’s unilateral proclamations and actions and the court saw no problem here but without admitting that such an act was necessary, it found that Congress’ ratification was without constitutional objection.

3.      Dissent, Nelson:

a.       Before the insurrection can be dealt with, it must be recognized or declared by the war-making power of the government.

b.      Whether the insurrection exists as war in a material sense carries no weight when the question is what constitutes war in a legal sense, by Congress.

c.       BUT< what about the contention that what would happen to the Union if we had to wait for congress to assemble before taking action?

d.      The framers anticipated this, and by the passage of the act of 1795, Congress provided for the President to call forth the militia to suppress insurrections.

ii.      Modern Examples of Presidential Authority in War Time

1.      The Steel Cases

a.       Congress had already determined not to give the authority – found that there are 3 possible areas where the president’s conduct may fall

i.      Clear Authority – maximum power

ii.      Absence of congressional power – twilight zone

iii.      Incompatible with Congress = very high burden on the executive to justify and outside the most dire circumstances does not pass the constitutional muster

iii.      Presidential Suspension of Liberties in War Time

1.      Ex Parte Milligan

a.       Critics of the war were arrested in Indiana, and charged with planning an armed uprising to seize the union weapons, liberate confederate prisoners of war, and kidnap the governor of Indiana. Despite the availability of local courts to try the case on treason, Milligan was tried in front of a military court.

b.      Issue:

i.      Whether Milligan’s right to trial by jury was violated by the use of the military tribunal where a local court was available.

c.       Milligan took place after the Civil War – Therefore, the Court held that the trial by military tribunal was unconstitutional because civilian courts were still operating, and the Constitution only provided for suspension of habeas corpus if these courts are actually forced closed.

i.      If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and rule until the laws can have their free course

ii.      Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.

d.      Are there constitutional provisions that prohibit Congress from granting authority to president to establish military tribunals?

i.      Article II(2)(3): All crimes shall be tried by a jury

ii.      6^th Amendment: Right to speedy and public trial by jury

iii.      These two provisions seem to indicate that there is a constitutional right to a trial by jury

iv.      Article III(1) Courts can only be established by Congress

v.      Executive must have the grant from Congress in order to establish tribunals

e.       5^th Amendment

i.      Must have an indictment by a Grand Jury

ii.      Capital Crimes

iii.      Due Process

f.       How does the president counter this conclusion?

i.      Have to construe presidential powers in times of war

ii.      Article 2 Section 2 – most often stated as justification for things done by the president

1.      Emergency powers are created – to prosecute the was as he “sees fit”

2.      But, this deference can go too far – jeopardizing civil liberties v. security concerns.

2.      Ex Parte Quirin

a.       Eight Nazi Military saboteurs who were landed by submarine near the US in 1942. It was intended that they destroy targets in the US. They were captured by the FBI while in civilian clothes, meaning that they could be summarily executed.

i.      The president convened a military tribunal that sentenced them to death

b.      HOLDING: The court upheld the jurisdiction of the US military tribunal over the trial of the German saboteurs in the US.

i.      FACTORS:

1.      “…The law of war draws a distinction between those who are lawful and unlawful combatants.”

a.       Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.

b.      Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful.

ii.      Why was this case not treason?

1.      Citizenship could not help because then he would have to be tried by civil court

c.       POINTS OF DISTINCTION WITH MILLIGAN

i.      Time of war

ii.      Belligerency

iii.      Soldiers without uniforms

d.      A criticism of Quirin is that what is to stop the President from nabbing someone, detaining them indefinitely, and labeling them as enemy combatant?

i.      Before a citizen can be handed over to military authorities for detention during the course of war, there must first be a federal hearing to determine whether the citizen is an enemy combatant

3.      Hamdi v. Rumsfeld

a.       American citizen captured as alleged enemy combatant during military operations in Afghanistan petitioned for writ of habeas corpus.

b.      ISSUE:

i.      Whether it is unconstitutional for the government to detain a US citizen on US soil as an enemy combatant without the meaningful opportunity to contest the factual basis for that detention before a neutral tribunal

c.       HELD:

i.      Although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention.

1.      The detention could only be valid as long as the war lasts.

2.      Embraces Quirin, rejects Milligan

d.      Rationale:

i.      Authority given to the president by AUMF

1.      Captured person is a POW until he has a hearing to establish that he is unlawful combatant

2.      Authorizes president to wage war, but must do so in accord with laws of war under the Geneva Convention à POW for people taken in Hamdi’s context, and have to hold a hearing to change their status

ii.      Hamdi revamped criminal procedure:

1.      Relaxed rules of hearsay à no longer have to present individuals in court

2.      Shift burden to presumption of guilt that defendant can rebut

iii.      Mathews v. Eldgridge balancing test

1.      Rights that will be affected against the interest of the government and the burdens it would face in providing greater process

2.      Executive may also argue that he is bound to uphold the laws and if he sees that the states are not likely to do so, he could establish court to do so

3.      Suggests that individual rights have to weighed very seriously and the precedential effect has to go into the balance

4.      Without fundamental protections, can be too far reaching. à Cost to government is not seen to be too great in light of right, but the government will see that presentation of evidence may restrict president’s ability to execute the war and administrative resources will be consumed

e.       Concurrence – Souter, Ginsburg

i.      A captured person is by default and by the Geneva Conventions and Army Regulations, a prisoner of war, until he has a hearing that changes his designation to an enemy combatant.

ii.      However, they dissented from the plurality’s ruling that AUMF established Congressional approval for the detention of unlawful combatants – They would require congress to make an explicit provision

1.      18 USC 4001 – no one detained EXCEPT PURSUANT TO AN ACT OF CONGRESS

2.      Congress has the authority to suspend Habeas Corpus and unless they have explicitly done so we should assume that they would if they intended to.

f.       Dissent – Scalia

i.      Either Congress has to suspend the Writ of Habeas Corpus, or the court has to try him in a regular court.

g.      Dissent – Clarence Thomas

i.      The president is justified by war powers to detain.

ii.      Executive can detain in time of war and any restriction by Congress would be unconstitutional

VII.          EQUAL PROTECTION – THE 14 TH AMENDMENT

a.       Early Interpretations

i.      The 14^th Amendment had the potential to alter the relationship between the federal and state governments, by providing the federal government with the power to reach state action.

1.      Prior to ratification of the reconstruction amendments, there were no restrictions on the states – now the Bill of Rights would be applicable to the states as well as the federal government.

2.      Previously the only way federal law could reach the states was through the contract clause, commerce clause, etc.

3.      Civil Rights Act of 1866

a.       Provided blacks with the right to contract, right to bring suits in court, etc. à specifically argued that it was not intended to reach what were considered more “social” rights than political rights – so it did not extend the franchise to blacks and could not touch the rights of access to other social situations.

b.      Black codes were enacted to keep things status quo – restricted mobility, etc.

c.       Vagrancy laws made it easy to arrest

d.      Sharecropping forced blacks back on to the farms

e.       Even though formal slavery had ended, goal was de facto slavery.

4.      The 14^th Amendment would have answered these problems à provided a better constitutional foundation for enactment of rights for blacks.

ii.      Slaughterhouse Cases

1.      FACTS:

a.       New Orleans butchers challenged a monopolistic slaughterhouse charter, granted by the state’s north dominated reconstruction legislature, which forced them to work at the facilities or give up their trade.

b.      Argued that it was a violation of the most fundamental right  – the right to labor productively, to pursue their vocation and reap the fruits of their efforts – “liberal free labor ideology

2.      HELD: State law upheld, private interests must be made subservient to the general interest of the community when the police powers are concerned – e.g., unwholesome trades, operations offensive to the senses, etc.

a.       McCulluch v. Maryland held that it was constitutional for the state to set up a corporation in order to carry out its police powers, and here the state has done just that and granted it a monopoly.

b.      Citizenship of the United States and of the states is clearly distinguished by the Fourteenth Amendment, and the privileges and immunities granted by each are therefore different. Meaning, the states are not required to afford protection in the same way the federal government is.

c.       The existence of laws in the States where the newly emancipated slaves resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it, such laws are forbidden.

d.      There is no violation of the 13^th Amendment because the individuals can still perform their work and may be able to find work elsewhere. Not being held in a state of slavery à to find that it is a violation of the 13^th Amendment would be to find that any economic hardship could be a violation and the court is not willing to go there.

3.      This case foreclosed the argument that the Bill of Rights was intended to apply to the states – the claim would be that the Bill of Rights were the basic “privileges” and “immunities” possessed by all citizens.

a.       The court refers to US citizenship based on generic rights – access to sea ports, access to courts, etc. – doesn’t have anything to do with innate property rights – state is simply prohibited from infringing on those rights, but not the bill of rights. Takes away the conflict by creating a more limited set of citizenship rights.

4.      Saw the 13^th and 14^th Amendments as being solely for the purpose of protecting former slaves

5.      FIELD’S DISSENT: Under the pretense of prescribing a police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen which the Constitution intended to secure against abridgment. It would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals.

6.      BRADLEY’S DISSENT: The mischief to be remedied was not merely slavery and its incidents and consequences, but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the states, and that intolerance of free speech and free discussion which often rendered life and property insecure and led to much unequal legislation

7.      SWAYNE’S DISSENT: By the Constitution as it stood before the war ample protection was given against oppression by the Union, but little was given against wrong and oppression by the states. That want was intended to be supplied by this amendment.

b.      Early Application of the Fourteenth Amendment to Race Discrimination

i.      Strauder v. West Virginia

1.      FACTS:

a.       P was convicted of murder in state court by a jury from which blacks were excluded by a statute providing that all white males were required to serve on juries. He unsuccessfully sought to remove to federal court. The supreme court of the state affirmed his conviction. The U.S. Supreme Court reversed.

2.      HELD: Every citizen under the constitution of the United States has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color because of race or color.

a.       The purpose of the 14th Amendment is to protect African Americans from discrimination by the states. This is a clear case of such discrimination. The right to a trial by jury is guaranteed to every citizen. The court declared the law unconstitutional because it expressly singled out and disadvantaged blacks.

c.       Establishment of the “separate but equal” Doctrine

i.      Plessy v. Ferguson

1.      FACTS:

a.       Louisiana statute required railroads to provide separate but equal accommodations for the white and colored races. Officers of the railroads were required to assign passengers to their appropriate cars, with the only exception being for nurses attending to the children of the other race. Homer Plessy was an “octoroon” who appeared to be white. Plessy attempted to sit in a coach reserved for whites, and was forcibly ejected and imprisoned

2.      HELD: The statute did not violate either the 13^th or the 14^th Amendments.

a.       That it does not conflict with the 13^th Amendment is too clear for argument. Slavery implies involuntary servitude – a state of bondage, the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another. A statute which merely implies a legal distinction between the white and colored races has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.

i.      HARLAN’S DISSENT – The 13^th Amendment not only struck down the institution of slavery, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude – the arbitrary separation of citizens on basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution

b.      The object of the 14^th Amendment was undoubtedly to enforce the absolute equity of the two races before the law, but it could not have been intended to abolish distinctions based upon color or to enforce social as distinguished from political equality. Furthermore, the statute is a reasonable exercise of the police power.

i.      HARLAN’S DISSENT – The statute is unreasonable because it will incite hatred for the African race by establishing that it is inferior to the white race. Furthermore, there are other races that are not permitted to obtain citizenship, but that are permitted to ride in trains cars with white citizens. The division is completely arbitrary. Finally, the Constitution is color blind – in respect of civil rights all citizens are equal before the law. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved

c.       Property rights claim – deprivation of due process rights because there was a value and sort of currency in being white. This deprivation was a denial of the benefits of being able to pass for white.

d.      Equal Protection argument – the court sees this law as falling under the state’s police power

i.      Original intent argument – Social rights were never intended to be reached by the legislation

e.       Reasonableness test – very low standard – state does not have to prove that the purpose of the law is in any way legitimate and the standard is extremely deferential to the state’s purpose.

i.      The court had accepted that regulation of race outside of the federally protected civil rights is a proper practice of the state’s police power.

ii.      Implication of bifurcation – political vs. social legislation à state’s used their power to legislate under social areas so as to make civil rights unavailable.

1.      Example: states adopted “color blind’ voting statutes that were intended to keep blacks out of the ballot box through reading tests, taxes, grandfather clauses, letters of recommendation, et.

iii.      Argument against the application of the use of the police power is that the line is drawn in a way that is arbitrary and no rationally related or the purpose given is not the real purpose.

1.      Here, the statute does not apply evenly between whites and blacks, nor between whites and other races à the line is arbitrarily drawn at separating blacks from whites, but not vise versa

d.      Racial Classification Burdening both Whites and Minorities

i.      Miscegenation laws – initially the court saw these laws as applying equally to all races, and therefore as constitutional. However, the court later saw that they were truly based on the assumption of inferiority of blacks to whites because there were no true limitations on the ability of blacks and other minorities to intermarry or marry outside their race unless it was with a white person.

1.      The purpose of these types of states was really to maintain the “purity “of the races by attempting to advance a legitimate purpose.

a.       Loving v. Virginia

i.      SC declared unconstitutional a state miscegenation statute that made it a crime for a white person to marry outside the Caucasian race.

ii.      Expressly repudiated the state’s argument that the law was permissible because it burdened both whites and minorities. The court said that “we reject the notion that the mere equal application of a statute concerning racial classification is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations.”

ii.      Korematsu v. United States

1.      The Supreme Court upheld the constitutionality of the evacuation of Japanese-Americans.

a.       Accepted the government’s claim that there was a serious risk to national security from JA’s who were disloyal to the US and that there was no way of screening to identify such individuals.

b.      Objectionable because the government used race alone as the basis for predicting who was a threat to national security and who would remain free.

c.       The racial classification was enormously over-inclusive. In fact, there was no evidence of a threat from any JA’s. It was also under-inclusive – those of other races who actually posed a threat were not included in the internment.

2.      The action was justified by a so-called compelling interest that the country was at war and had been attacked.

a.       Deference was to be given to the executive – there has been evidence of foreign national’s infiltrating shores – have to be wary of foreign operatives

b.      Narrowly drawn because can’t be in the position of second-guessing military leaders.

3.      The burden here should have been on the state à they should be required to show why it is infeasible for the state to provide some semblance of due process.

a.       Instead, the court gave almost blind deference.

b.      Points to the dangers of deference and makes a mockery of strict scrutiny, because the court is not really required to account for its actions and arbitrariness

i.      Serious hints of stereotyping, etc.

e.       Attack on the Separate But Equal Doctrine – Brown v. Board of Education

i.      Challenged the segregation of the Topeka, Kansas public schools

ii.      HELD: In the field of education, the doctrine of separate but equal has no place.

1.      Did not look to the intent of the framers – said that there was no conclusive purpose in regard to public education.

2.      Instead, looked at public education in light of its full development and its present place in American life throughout the nation.

a.       Today, education is the most important function of state and local governments. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

b.      Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms

c.       The segregation inherently stamps black children as inferior, and impairs their educational opportunities.

iii.      Brown v. Board ushered in the modern era of equal protection jurisprudence. Since Brown, the court has relied on the equal protection clause as a key provision for combating invidious discrimination and for safeguarding fundamental rights.

f.       Modern Equal Protection Analysis – 3 Standards of Review

i.      Classifications based on economic or social status receive reasonableness test à unless a suspect class is involved, government actions need only meet rational basis review

1.      Under rational basis review, a law will be upheld if it is rationally related to a legitimate government purpose.

a.       The government’s objective need not be compelling or important, but just something that the government legitimately may do.

b.      The means chosen only need be a rational way to accomplish the end.

c.       The challenger has the burden of proof under rational basis review, and the test is enormously deferential to the government, and only rarely have laws been unconstitutional for failing to meet this level of review.

ii.      Intermediate Scrutiny à Gender Classifications

1.      United States v. Virginia (VMI)

a.       Declared unconstitutional the exclusion of women by the Virginia Military Institute.

b.      Parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for that action.

i.      Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the state. The state must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives

c.       Government argues that it intends to enhance the diversity of the educational opportunities available in the state by offering single sex institutions.

i.      However, there is no persuasive evidence in the record that the male only admission policy is in furtherance of a state policy of diversity

d.      The state further argues that the method of training provides education benefits that cannot be made available unmodified to women.

i.      Reviewing courts must take a hard look at generalizations or tendencies of the kind pressed by the state. State actors controlling gates to opportunity may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females

e.       Generalizations about the way women are, estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI’s method of education suits most men

2.      Intermediate scrutiny does permit positive use of classification based on gender.

iii.      Strict Scrutiny à Classifications based on Race

1.      Regents of the University of California v. Bakke

a.       FACTS:

i.      Challenged the UC Davis Medical School’s set-aside of 16 slots in the entering class of 100 for minority students.

b.      No Majority Opinion in this case – It was a 5 to 4 decision finding the set-aside unconstitutional, but also a 5 to 4 decision that it is appropriate to use race as one of the factors in an admissions decision to increase diversity.

i.      Four Justices (White, Brennan, Marshall, and Blackmun) found that intermediate scrutiny was appropriate, and voted to uphold the classification.

ii.      Four Justices (Stevens, Burger, Stewart, and Rehnquist) concluded that the program violated Title VI and was therefore invalid, though they did not reach the constitutional issue.

iii.      Only Justice Powell said that strict scrutiny should be used for affirmative action.

2.      Grutter v. Bollinger

a.       Challenged affirmative action program at the University of Michigan

b.      The court reaffirmed that all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny

c.       There must be a compelling state interest – diversity is the only interest the court will find compelling.

i.      Not acceptable to attempt to deal with past instances of discrimination through admission to the university.

ii.      Also unacceptable to try to create role models in minority groups through university admission.

iii.      This goal of diversity can only mean diversity within the sphere of education – can’t have a larger goal or take other action outside of that sphere.

d.      The means to achieve the compelling state interest must be narrowly tailored.

i.      Must be the least restrictive means of achieving the purpose (has to be feasible – within reason to achieve the objectives)

3.      Gratz v. Bollinger

a.       Apply strict scrutiny to all racial classifications imposed by government. Assures that government is pursuing a goal important enough to warrant use of a highly suspect tool.

4.      Strict scrutiny requires a tighter fit between the means and the end – not over inclusive or under inclusive.

VIII.       THE COMMERCE CLAUSE

a.       Protection of Economic Liberties – The Lochner Era

i.      The court aggressively protected economic rights under the due process clause. Many state laws, such as minimum wage and maximum hour statutes, were declared unconstitutional as violating the Fourteenth Amendment by impermissibly interfering with freedom of contract

1.      Lochner v. New York

a.       FACTS:

i.      Bakers were prohibited from working over 60 hours per week. Sued the state for taking away his right to contract for labor.

b.      HELD: The Bakeshop Act was unconstitutional for violating the Fourteenth Amendment because it interfered with the freedom of contract and because it did not serve a valid police purpose.

i.      Freedom of contract is a basic right protected as liberty and property rights under the due process clause of the Fourteenth Amendment.

ii.      The general right to make contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. The right to purchase or sell labor is part of the liberty protected by this Amendment.

iii.      The regulation by the state has to be balanced against the freedom of contract rights under the 14^th Amendment under these criteria:

1.      Substantiality of the interest of the state. Reasonable end or purpose of the legislation. Must be a legitimate interest and the means of achieving it must be reasonable.

a.       The court attacks the reasonableness of this legislation based on the actual danger associated with baking.

b.      It’s almost as if the court believes the state’s real purpose is not what it says it to be. Real purpose was to equalize the bargaining power between employers and employees.

c.       The court emphasized that the regulating the hours worked by bakers had no real connection to public health.

b.      Does State Sovereignty Limit Congressional Power?

i.      Champion v. Ames (The Lottery Case)

1.      FACTS:

a.       Statute prohibited movement of lottery tickets across state lines. Ps argued that the Commerce power extended to regulating and not prohibiting interstate commerce.

2.      HELD: The federal law is within the power of congress- the power to regulate encompasses the power to prohibit.

a.       Congress says that sometimes the only way of regulating is to in fact prohibit.

b.      If the state, when considering legislation for the suppression of lotteries within its own limit, may properly take into view the evils that inhere in the raising of money in that mode, why may not Congress do the same.

c.       Fuller’s Dissent: There is no federal police power to regulate lotteries – 10^th Amendment reserves this power to regulate. (2) The lottery tickets are no more articles of commerce than are insurance policies, which the congress has said are not. If that were the case, then a whole of lot of private contracts would become matters of federal regulation simply because they have been placed into the stream of commerce – must look at the nature of the article in question, and if it represents a personal contract and has no independent value, it is not an article of commerce simply because it has been put into the stream of commerce. To do otherwise would have some very dangerous implications for federalism – that would mean that congress’s power would be plenary and the 10^th Amendment would become basically ineffective giving the states no power

ii.      Hammer v. Dagenhart

1.      FACTS:

a.       Federal law prohibited the shipment in interstate commerce of products produced in factories that employed children of certain ages. The law only regulated goods in interstate commerce.

2.      HELD: The law is unconstitutional because it controls production of goods and the commerce clause does not give Congress the authority to control the states in their exercise of the police power over local trade and manufacture.

a.       Rejected the argument that the regulation was required to prevent unfair competition à unfair for some states that are prohibiting child labor – cannot compete equally. Matter has implications with regard to other states. If you can use child labor in one state, then the cost of production is going to be higher where you can’t use child labor and will have to sell for a higher price in the state where you cannot use child labor.

i.      Court responds by saying Congress doesn’t have a general authority to equalize the states – states pass all kinds of laws that affect the price of commodities across state lines. It is a power that is without limit

b.      Gov argues that the case should be decided under the rule of Ames. The determination of whether something can be regulated or prohibited should be up to the Congress

i.      To the court, what distinguishes this from the Ames case?

1.      The action occurs before the product enters the stream of commerce. Child labor is therefore not an interstate commerce activity

a.       The act in its effect does not regulate transportation between the states, but regulates by reaching into the state as opposed to dealing wit the transportation of the commodities outside the state

b.      The court tries to figure out to what extent the federal government can reach into the affairs of the state itself and still be upheld as a regulation of commerce. Here, the court suggests that the problem being addressed is taking place exclusively within the state

c.       Holmes’ dissent – goes back to the rationale of Ames and earlier decisions. Power to regulate must involve the power to prohibit. This is unassailable.

i.      The court is in effect overruling Ames without saying that it is doing so.

ii.      When this congressional power has an incidentally effect on the state, the state must give way – supremacy argument.

iii.      Finally, the judgment as to when the regulation must prohibit is a political judgment that must be left to congress and not to the courts. A decision that only a legislative body should make, not the judiciary

c.       The End of Lochnerism

i.      West Coast Hotel v. Parrish

1.      Addressed the issue of whether the setting of a minimum wage for women is a deprivation of the freedom of contract.

2.      HELD: The community may direct is law-making power to correct the abuse that springs from their selfish disregard of the public interest.

a.       The court saw a public service purpose in protecting women where they are being exploited and rejected the free market analysis.

b.      Public interest is also general and universal because taxpayers would otherwise have to pick up the slack.

c.       The majority made it clear that the court was abandoning the principles of Lochner v. New York

i.      What is the freedom of contract? The constitution speaks of no freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. Regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process.

ii.      Williamson v. Lee Optical

1.      Oklahoma statute prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist.

2.      Upheld the statute and stressed the need for judicial deference to legislative decisions.

a.       The court hypothesized about what the purpose of the legislation actually was and did not require that the legislature had actually investigated providing very extensive deference.

iii.      United States v. Carolene Products

1.      FACTS:

a.       Appellee was indicted for shipping a compound of condensed skim milk and coconut oil made in imitation of or semblance of condensed milk or cream.

b.      The Supreme Court first held that Congress had the power to prohibit shipment of adulterated foods in interstate commerce, and then addressed the due process challenge

c.       Addressed the issue of whether the “Filled milk Act” of Congress that prohibits the shipment in interstate commerce of skimmed milk compounded any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce of infringes the Fifth Amendment

2.      HELD: The prohibition of shipment of appellee’s product in interstate commerce does not infringe the Fifth Amendment.

a.       It was well established before Congress that the value of milk to human health requires that it be unadulterated when delivered to the public.

b.      The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

c.       Congress can choose any means it deems appropriate – doesn’t have to be the least restrictive – should be left to Congress to consider how the factors should be weighed.

d.      The court almost seems to say that even the slight rationale – no burden on the state to established – deference is one which seems to suggest that presumption

d.      The Commerce Clause and US v. Lopez

i.      Between 1936 and 1995 the Supreme Court did not find one federal law unconstitutional as exceeding the scope of Congress’s commerce power.

ii.      United States v. Lopez

1.      HELD:

a.       Gun-Free School Zones Act is unconstitutional because the relationship to interstate commerce is to tangential and uncertain to uphold.

b.      Ruled that it was not substantially related to interstate commerce.

c.       Majority – Rehnquist

i.      The constitution creates a government made up of enumerated powers – returned to the notion that Article I limits Congress’ power to those that are express or implied in the Constitution

ii.      Congress may legislate to protect and regulate the instrumentalities of interstate commerce, and that this includes the power to regulate persons and things in interstate commerce.

iii.      Congress may also regulate those activities having a substantial relation to interstate commerce. Concluded that a restrictive interpretive approach should be adopted, and that the “proper test requires an analysis of whether the regulated activity substantially affects interstate commerce.

1.      The presence of a gun near a school does not substantially affect interstate commerce, and therefore the law was unconstitutional

iv.      The issue here was that the statute was not getting at the trafficking of the guns, but the actual use – which seems a particularly intrastate activity.

iii.      Post-Lopez Reasoning

1.      Prior reasoning had looked at the aggregate of intrastate activity

2.      Conservative courts drift away from this trend, and begin to look for “objects of commerce”

3.      Accept the arguments where things are non-economic, intrastate activity

a.       Medical Marijuana Case

b.

IX.             The Taxing and Spending Power

a.       National League of Cities v. Usery

i.      Declared unconstitutional an application of the Fair Labor Standards Act, which required the payment of the minimum wage to state and local employees.

1.      Where limits upon the power of Congress to override state sovereignty even when exercising its otherwise plenary powers to tax or to regulate commerce.

2.      Requiring states to pay their employees the minimum wage violates the Tenth Amendment because the law operates to directly displace the states freedom to structure integral operations in areas of traditional governmental functions.

3.      Forcing states to pay their employees the minimum wage would require them to raise taxes or cut other services.

a.       In other words, the law interfered with traditional state and local government functions.

b.      Garcia v. San Antonio Metro

i.      FACTS:

1.      DOL determined San Antonio Mass transit system did not fall within the League of Cities decision, and was required to pay federal minimum wage. The Court ordered re-argument and requested the parties to brief whether or not the principles of the Tenth Amendment as set forth in National League of Cities should be reconsidered.

ii.      HELD: that the attempt to draw the boundaries of state regulatory immunity in terms of traditional governmental function is not only unworkable but is also inconsistent with established principles of federalism. National League of Cities is overruled.

1.      State sovereignty is protected by the structure of the government – inclusion of elected officials from every state in the national government ensures that state interests will be represented at the highest level.

2.      There is nothing in the overtime and minimum wage requirements of the FLSA as applied to D that is destructive of state sovereignty or is violative of any constitutional provision.

3.      Congress is the best body to determine where the line should be drawn between state and federal functions. Otherwise, the reasoning is too attenuated – the standard is too loose in National League of Cities to be applied with any consistency.

iii.      Powell’s Dissent:

1.      Bureaucracies not in touch with the heads of the states – efficiency requires addressing things on the state level.

2.      Once the representatives arrive in DC they are no longer true representatives of the state interests, but are too overwhelmed by self interest and special interest groups to be effective.

a.       The court is needed, then to provide oversight for states’ interests under the 10^th Amendment

3.      Originalist argument as to why the court should step in – framers intended and public’s understanding – requirement for the bill of rights before the constitution could be adopted.

4.      Suggests that the court cannot abdicate rights of the states

a.       But, his suggestion does not provide a clear line where the limits should be – many questions remain open if his logic is followed.

c.       Gregory v. Ashcroft

i.      Finds constitutional a state law that limits the age of state judges despite its potential violation of a state right.

ii.      The decision is based on 14^th Amendment analysis, but O’Connor takes the opportunity to discuss states rights.

1.      We recognize explicitly the states constitutional power to establish the qualifications for those who would govern.

2.      The analysis here is a lot like the National League of Cities analysis

3.      Sees the ability to decide whether to retire judges as an absolutely necessary state function.

4.      Court should pay deference to this type of decision

iii.      Unless the Congressional intent is clear, the state’s rights must be protected.

iv.      The Court used the Tenth Amendment and federalism concerns as a rule of construction. Ruled that a federal law that imposes a substantial burden on a state government will be applied only if Congress clearly indicated that it wanted the law to apply.

d.      New York v. United States, 505 US 144 (1992)

i.      FACTS:

1.      Congress enacted a proposal for nuclear waste disposal that required states to take responsibility for disposal of waste created within their boundaries. Each state could enter into a regional compact, and the compact could exclude nonparticipating states. New York is not participating in a compact and has been unsuccessful in securing a site for its nuclear waste disposal.

2.      The act provides three types of incentives to encourage states to comply with the act:

a.       Monetary incentives

b.      Access incentives – the denial of access to disposal sites

c.       The take title provision that requires the state to take possession of nuclear waste for which it is unable to provide disposal services upon request of its owner, and to assume liability for the waste on behalf of the owner/generator.

ii.      HELD: The third type of incentive is outside the power of Congress according to the Constitution. However, the purpose of the act is not defeated by the invalidation of the take title provision, so the remainder of the Act is left in force.

1.      Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Instead, federal legislation must be directed at individuals, though it may intersect state legislation in areas where both sovereigns have power to legislate, and in that case, it will always be supreme. This supremacy may occasionally require the State courts to enforce federal legislation, but it will never be permitted to require state legislatures to enforce a regulatory scheme as if they are simply extensions of the federal government.

2.      Originalist argument: history of the framing of the government reveals that the framers intended for the new Constitution to confer upon the federal government the power to enact legislation directly affecting individuals, rather tan requiring the states to ratify federal action as had been the case under the Articles of Confederation.

3.      Participation of state officials in creation of legislation does not “ratify” legislation that oversteps the power of Congress. Nor does receipt of benefits through the legislation.

4.      Congress may, however, encourage states to legislate in a certain manner by either

a.       Under its spending power, Congress may attach conditions on the receipt of federal funds.

b.      This retains the state’s ability to choose whether legislation is so contrary to local custom that it is not worth the federal grant.

5.      Where Congress has the authority to regulate private activity under the Commerce Clause, Congress has the power to offer States the choice of regulating that activity according to federal standards or having state law preempted by federal regulation.

6.      The take title provision crosses the line distinguishing encouragement from coercion. Because standing alone Congress would not have the power to instruct state governments to take title to waste or to issue a direct order to regulate, it follows that Congress does not have the power to offer a choice between the two.

iii.      JUSTICE WHITE’S DISSENT:

1.      The state should be estopped from asserting the unconstitutionality of a provision that seeks merely to ensure that, after deriving substantial advantages from the 1985 Act, New York in fact must live up to its bargain.

2.      Legislation can be ratified by consent of state officials.

3.      The proper test is found in Garcia regardless of whether the case involves activity that would be regulated if it referred to private individuals.

iv.      JUSTICE STEVENS’ DISSENT:

1.      Nothing in the history of the framing suggests that framers did not also intend to allow the federal government to impose its will upon the states as it did under the Articles. The Constitution enhanced, rather than diminished, the power of the Federal Government.

e.       Printz v. United States

i.      The Brady Handgun Violence Prevention Act required states to establish a system for checking handgun purchasers’ backgrounds. Two western sheriffs challenged these interim provisions as violative of the New York principle.

ii.      HELD that Congress cannot circumvent the New York holding by conscripting the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

1.      Scalia’s Opinion

a.       Historical understanding/originalist argument

i.      Government argues that historically this has been the practice

ii.      Scalia responds that the courts have had to implement federal laws, but historically executive officials have never had to carry out federal law.

iii.      Instances when states had been compelled to carry out federal law, it was made on state judges through suits in state court. Has not been done in terms of forcing the state executive to enforce federal laws.

b.      Transition from Confederation to Constitution – adopts O’Connor’s reading of the history – regulation of individuals vs. regulation of states.

i.      Other way of looking at it is that the power was enlarged by the constitution – power not limited to the individuals, simply expanded.

c.

2.      O’Connor’s Concurrence

a.       States and law enforcement may voluntarily continue their participation in the program.

3.      Thomas’ Concurrence

a.       Commerce powers do not extend to point-of-sale transactions.

b.      Second Amendment limits congress’ power in regard to firearms. Appears to contain an express limitation on the government’s authority.

4.      Stevens’ Dissent:

a.       When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens.

b.      Article 1 §8 gives Congress the power to regulate commerce among the states – that provision adequately supports the regulation of commerce in handguns effected by the Brady Act.

5.      The argument that the Constitutional framers limited the power by granting the power to regulate individuals directly misses the point – the basic change in the character of the government was designed to enhance the power of the national government, not to provide some new, unmentioned immunity for state officers.

6.      The case for mandating the executive to enforce the federal law should be easier than mandating the legislative bodies to follow the law.

7.      Constitution says that the executive should see to it that the laws are faithfully executed – not Congress – so Scalia mentions that it could be a violation of separation of power if the executive cannot appoint the CLEO’s and fire them as he sees fit – so makes the argument that this legislation may very well violate the separation of powers in the federal government.

8.      Goes even further than O’Connor in this regard

9.      Congress comes up with administrative enforcement procedure in a great deal of legislation – the assumption is that the executive has to sign on. Very seldom does it have to go through the executive office in order for the enforcement to take place in the state government. Scalia’s reading is novel – this would slow down the workings of the government significantly.

Related posts:

• Con Law Outline – GULC – Goldberg – S2008 – 1
• Con Law Outline – American – Wermiel – S2007 – 1
• Con Law Outline – American – Hutchinson – S2005 – 1