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Constitutional Law

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Contents

The Marshall Court (1801-1835)

  • Helped define the powers of the federal government
  • Opinions more expansive than necessary for the specific cases involved

Judicial Review of the Constitutionality of Legislation

Origins

  • Not specifically in the Constitution to rule on the constitutionality of acts of Congress or state statutes or power to review decisions of state courts
  • Article 3
    • Creates the Supreme Court
    • Extends the judicial power to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the US, and Treaties made…under their authority."
    • Section 2
      • Spells out cases of original jurisdiction
      • Gives appellate jurisdiction over all others

Judiciary Act of 1789

  • Congress created lower federal courts as permitted by the Constitution
  • Did not give them general jurisdiction in civil cases arising under federal law.
    • State courts were to have jurisdiction over such cases
  • Supreme Court could hear 3 types of cases on appeal, all essentially involving state court rejection of claims made under federal law.

Judicial Review of State Legislation

Judicial Review of Congressional Legislation

  • The Precedents of Judicial Review
    • Power to review acts of Congress is not set forth in the Constitution
  • The Political Context of 1801-1803
    • Hamilton-Federalist Papers
      • Argued the judiciary is the least powerful of the branches of the government in the sense that it controls neither public funds nor the military
      • The independence of the judiciary allows it to guard the Constitution and the rights of individuals from improper action of the other branches
    • Jefferson
      • Argued each branch is responsible to determine for itself the constitutionality of its action, and that the judges should not be the ultimate arbiters of all constitutional questions
      • The courts will face constitutional questions more than the other branches.
    • The Judiciary Act of 1789
      • Congress gave the Supreme Court power to issue writs of mandamus to US officials
      • This violates Article 3, §2 and sets the stage for Marbury v. Madison
    • Marbury v. Madison established the concept of judicial review

Judicial Review in a Democratic Polity

  • The Countermajoritarian Difficulty
  • Justifications for Judicial Review
    • Supervising Inter- and Intra-governmental Relations
    • Preserving Fundamental Values
    • Protecting the Integrity of Democratic Processes

The Protection of Property Rights and the Natural Law Tradition

  • Fletcher v. Peck (Yazoo Land Grant)
    • A state legislature may not forfeit the rights of bona fide purchasers of land even when the seller of that land acquired title by illegal activity.

Natural Law, Vested Rights, and the Written Constitution: Sources for Judicial Rule

  • Natural Law Tradition
  • Judicial Protection of Vested Rights
    • Both Fletcher and Marbury involved the protection of vested rights.
    • A right, once vested, cannot be taken by the government.
    • The common law, modified by legislation, determined what constituted a vested right.
    • Calder v. Bull (1798)
      • Justice Chase argued that government existed to protect personal liberty and private property
        • An act by the legislature that removed that protection would necessarily exceed the legislative authority
      • Justice Irdell argued that constitutions were intended to limit the legislative power
        • A court may believe a statute violated natural law, but could not declare it void unless it was prohibited by the Constitution.
  • The explicit federal Constitutional Protection of Rights
  • The Ninth Amendment
  • Rule: One nation may not make laws for another sovereign nation.

American Indians and the American Political Community

  • Rule: American Indian tribes are not foreign states that can invoke the original jurisdiction of the Supreme Court.

Women's Citizenship in the Antebellum Era

Regulation of the Interstate Economy

Early use:

  • Most cases dealing with the Commerce Clause involved challenges against state action that allegedly discriminated against or burdened interstate commerce.
  • The Commerce Clause acted primarily as a restraint upon state regulation.
  • Rule: The Commerce Clause grants Congress the authority to regulate interstate commerce.
    • Case: Gibbons v. Ogden (1824)-The Definition of Commerce (Expansion of federal power)
  • The Dormant Commerce Clause Theory: If Congress has not acted concerning a specific matter, and if the Constitution does not prohibit the state from exercising the power, and if the state law is not repugnant to the Commerce Power, then the state law is proper.

The Taney Court and the Civil War: 1835-1865

Jacksonian Democracy

  • Wanted roads, canals, etc. chartered and aided by states
  • Movement toward equality for all white men
  • Lets aristocratic
  • Not leveling by pulling men down but leveling up
  • Jackson appointed Taney

Interstate and Foreign Commerce and Personal Mobility

The States' "Police Power" as a Constraint on the National Commerce Power

The Cooley Accommodation

  • Rule: The Commerce Clause does not preclude state regulation of aspects of commerce that are local in character.
  • Case:

The Privileges and Immunities of State Citizenship and Personal Mobility Among the States

  • The Privileges and Immunities Clause of Article IV:
    • "The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States."
    • Prohibits discrimination by a state against noncitizens (or nonresidents) of the state with respect to "essential activities" or "basic rights," unless justified by a substantial reason.
    • This clause has been extended to protect activities such as pursuit of a livelihood, the transfer of property, and access to the state courts.
    • However, this clause does have its limits: Corfield v. Coryell (1823)
  • Interstate Mobility
    • Rule: A state cannot prevent free travel among the States.
    • Case: Crandall v. Nevada (1868)

Slavery

The Missouri Compromise of 1819

  • Postponed the great confrontation over slavery by admitting Missouri as a slave state while prohibiting slavery in the territories north of Missouri.

The Interstate Slave Trade

  • Rule:
  • Case: Groves v. Slaughter (1841) (Borderline Marshall/Taney)
  • Freedom of Speech, Federalism, and Slavery

Fugitive Slaves

  • Rule: a state may not prohibit recovery of slaves in a manner expressly permitted by federal law
  • Case: Prigg v. Pennsylvania (1842)

Prelude to Secession

  • Rule: a slave does not have status as a citizen to bring suit in federal court.
  • Case: Dred Scott v. Sandford (1857)

Judicial Supremacy and Dred Scott: The Lincoln-Douglas Debates

The President as Commander-in-Chief in Behalf of Preservation of the Union

The Case for Secession

The Authority of the President to Repel Attacks on the Union

  • Constitution
    • President is Commander-in-Chief of the Army and Navy
    • Only Congress has the power to initiate or declare war.
    • Interplay of powers not clear
    • HOWEVER, in the even of insurrection of invasions, the Pres. may deploy military forces against any enemy, foreign or domestic, without waiting for a congressional declaration of war.
  • Rule: the President, acting without a Congressional declaration of war, may use military force to resist invasion and suppress insurrection.
  • Case: Prize Cases (1863)

Lincoln and the Suspension of Habeas Corpus

  • Chief Justice Taney on the Exclusive Authority of Congress
  • The President Asserts Executive Authority

Lincoln: the Great Emancipator

  • Former Justice Curtis Dissents

The Legal Tender Cases and the Constitutionality of Paper Money

From Reconstruction to the New Deal: 1866-1934

Race Discrimination

13th Amendment

  • As a response, may Southern states enacted the Black Codes
    • had the effect of reimposing slavery

History of Adoption of the 14th Amendment

  • The Civil Rights Act of 1866
    • Intended to secure certain basic civil rights to persons of all races.
  • The 14th Amendment (Ratified 1868)
    • What the Amendment Did Not Say
      • Constitutionalize the Civil Rights Act or broader protection?
    • The Unusual Procedural History of the 14th Amendment
    • The 14th Amendment, Birthright, Citizenship, and American Indians

Early Application of the 14th Amendment to Race Discrimination

  • Rule: A state may not prohibit service on a jury based on race.
  • Case: Strauder v. West Virginia (1880)
  • The "New Departure" and Women's Place in the Constitutional Order

Establishment of the "Separate but Equal" Doctrine

  • Rule: A state may use its police power if reasonable and intended for the promotion of the general good, such as preserving the public peace. To that end, it may mandate separate but equal facilities (i.e., railcars).
  • Case: Plessy v. Ferguson (1896)
  • Creation of the State Action Doctrine

Creating an "American Nation"

American Expansionism, Race, Ethnicity, and the Constitution

  • Rule: U.S. Territories are not "part" of the U.S. for the purposes of Article 1, § 8.
  • Rule: An act of Congress may violate pre-existing treaties between the U.S. and other nations.

Religious Diversity and the Constitution: The Example of Mormonism

  • Rule: the federal government outlaw polygamy even if it is a religious practice
  • Case: Reynolds v. US (1878)

The Protection of Economic Rights

The Fourteenth Amendment Limited

  • Rule: the Fourteenth Amendment does not protect privileges incident to citizenship
  • Case: The Slaughter-House Cases (1873)
  • Myra Bradwell, Privileges and Immunities, and the Practice of Law

Pressures for Intervention and the Rise of Substantive Due Process, 1874-1890

Development of substantive due process

  • 5th Amendment assured fair legal procedures; applied to federal government
  • 14th Amendment prevents any state from depriving any person of life, liberty, or property without due process of the law.
    • Attacks procedures
    • And fairness of the procedures
  • Historical causes
    • Wealth in corporations
    • Industrial Revolution
    • Monopolistic railroads, grain elevators, banks
    • Low wages, bad working conditions
    • Social Discontent
    • Fear of Marxism (becoming popular in Europe)
      • Labor unions, etc.
    • Boom-bust economic cycles
  • Dissent in Slaughter-House
  • State courts were the first to accept arguments in favor of substantive due process
  • Supreme Court

Concept of substantive due process

  • Ends or purposes: Did the law promote in some way the health safety, welfare, or morals of the people?
  • Means: Was there a real relationship between the means used and the legitimate end?
  • Effect: Effect of the law on liberty and property of the parties involved
    • If too drastic, violation of due process
  • A way to enforce natural law limitations
  • Rule: The right to contract in business is an individual liberty protected by the 14th Amendment

General Constitutional Law/Federal Common Law

  • Definition
    1. Judge Made
    2. Exists Everywhere-No variance upon change in location
    3. Body of general principles
    4. Previously only used in diversity cases
  • Swift v. Tyson

Freedom to Contract and the Problem of "Involuntary Servitude"

  • Black Codes
    • Enacted by many S. states immediately after the Civil War
    • Est. new modes of discipline over the black labor force
  • Civil Rights Act of 1866

Formally invalidated the Black Codes Struggle for control of the labor force continued

  • Rule: The 13th Amendment prohibits indentured servitude. A law cannot force someone to perform a labor contract.

Congressional Regulation of Interstate Commerce and of the National Economy

Commerce Clause

  • Pre Civil War Court Focus was state regulation of commerce when Congress was silent
  • Post-War period Court Focus was the scope of Congress' legislative powers
    • Scarcely confronted since McCulloch
    • Intervention by Congress into interstate economy
      • Interstate Commerce Act of 1887
      • Sherman Antitrust Act of 1890
    • Almost anything connected with RRs was held to within Congress' power
      • They are highways of both interstate and intrastate commerce
    • Three doctrinal issues recur
      • Whether the particular subject of congressional regulation is "interstate commerce" as distinguished from some local activity suggested by the Sugar Trust Case
      • Are the purposes of a regulation consistent with the purposes for which Congress was delegated the power to regulate interstate commerce?
        • McCulloch (Marshall): Should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal to say that such an act was not the law of the land."
          • General legislative authority resides in the states
          • Lawmaking authority is delegated to the national government to achieve certain objectives
          • There is no justification for exercising authority beyond the scope of the purposes for which it is given.
      • Whether, independent of the first and second issues, a particular instance of congressional regulation of interstate commerce runs afoul of the reservation of powers to the states in the 10th Amend.
        • 10th Amendment (contrary to Marshall in McCulloch) was seen as a source for "dual federalism" (the coexistence of the states and their powers is itself a limitation upon national power)
    • Rule: Congress may prohibit undesirable activities (i.e. "inherently evil")
    • Rule: Congress does not have general police power and may not regulate "local activity" such as manufacturing.
    • Rule: "Commerce" is defined as "intercourse for the purposes of trade'," which definition does not include "intercourse for purposes of production" -including activities such as employment of men and the fixing of their wages, hours of labor, and working conditions.

Taxing Power

Spending power

  • Initially OK'd under the Commerce Clause (postal, military, highways, railroads, etc.)
  • Article 1, Section 8: Provides that Congress has the power to spend money to pay the debts and provide for the common defense and general welfare of the US.
    • "general welfare" is connected with the taxing and spending power
    • Must be for "national concern" not local one
    • Rule: Tax appropriations cannot be made by Congress as means to an unconstitutional end.

When a Nation Is at War: WWI and the First Amendment

Constitutional Innovation during the Progressive Period

Are There Substantive Limits to Constitutional Amendment?