Certiorari- petition to the Supreme Court to hear case. Each justice has several clerks. Clerks review opinions.

They identify s few hundred that they believe are important. Judges will then look at petitions. If four decide to hear a case. They will hear it. This is the rule of 4. No explanation why or why not. Disobey laws Moral responsibility to obey just laws Moral responsibility to disobey unjust laws You should not obey unjust laws Just law is man made code that squares with the law of god Unjust law is out of harmony with justice King is going back to the ancient philosophers, there are moral principles that exist in nature. These moral principles would be of no interest if we cannot understand what they are. Natural principles in nature that we can understand what they are and apply them to our world. This allows us to compare it to modern laws. This true law will allow us to decide whether to obey or disobey law; Injects moral sensibility to the law. --natural law Calder vs. Bull Facts: Person was being punished by the state even though it was not unlawful when he did it. Holding: Court said they cant do that Judge says that he cant call it a law because it is contrary to the great first principles (moral principles) can't be punished for doing something that was lawful at the time. .

Jeremy Benthem- natural rights are nonsense upon stilts. Nonsense means there is no sensory experience. Cant see it touch it or feel it. Nothing tangible that natural law exists. If u claim there is then prove it. Significant that even those who agree that there are natural laws, they can't agree on what those natural laws are. For example slavery, had arguments for and against based on natural law. No sensory experience. Holmes said because there is a demand for a superlative there is a drive for the need of natural law. Certitude is not the test of certainty. The fact that you feel certain doesn't mean that it is certain. You can feel that there is natural law but that doesn't mean there is proof. Positive view of law. John Austin. Fundamental belief. He believed that law is the enforceable command of the supreme political authority in society. The existence of law is one thing. The merit or de merit is another. You can have an evil law. But if the supreme political authority is able to enforce it. Then it is the law. There is no good or bad. Or what would god command. Austen is talking about a supreme authority who commands society. No one is above the law. The big debate is what is law. How can we determine what law is. Natural law says law has to be compared to high principle. And positive people sa a law is whatever the law says it is. Positive law is conflict with the rule of law. No one is above the law. You have to look towards the purpose of law.

Wendell Holmes. Born 1842 in Boston. Father was a doctor and dean of Harvard medical school. Civil war changed him. Saw a struggle to survive. Wrote the common law. Named to Supreme Court of Massachusetts. Was well known. When he was in 60s president Roosevelt nominated him to Supreme Court for another 30 years. Wrote significant decisions. Became a social Darwinist. law is not study of history but of a well known profession. The law is a profession and that's what it is. Law is totally different from morality. What the courts will do in fact is what I mean by the law. The law is a prediction of what the courts will do. What does the law mean. Law sometimes use legal language and ordinary speech. Law represents some kind of compromise in a conflict. Usually not looking for truth. But to help my side of the argument. Zander says literal rule-the law means what it says. Ideal situation where you read the law exactly as it is. Baley v us - law tht set down mandatory sentence for anyone that uses or carries a gun in a drug offense. Baley had a machine gun he traded for cocaine. Moscarelo v us - arrested and gun was in trunk of car. Babeth vs sweet homes chapter community for a greater Oregon- congress made it crime to harm an endangered species. Hackworth vs insurance company- federal family and medical leave act. Involves people that live 75 miles of their workplace. Mallard vs us district court Justice roberts Put the law and constitution next to each other. See whether they match. But doesn't work in many cases. Justice black - government has right to invade privacy unless constrained by a constitutional amendment. Constitution never included right to privacy so we as judges have non authority to put it in there. Questions whether court should have power to write a good idea is into the constitution. If u want a right to privacy then amend the constitution. Proof beyond a reasonable doubt is a long standing practice but the constitution is silent on this topic. It does not say this is what a criminal trial should be. Zanders golden rule is the absurdity principle. The people that passed the law did not expect this kind of absurdity. Courts do this rarely because what seems absurd to me might not seem absurd to u. Mischief rule- law addresses the mischief. You interpret the law in according to the purpose of the law. This would mean what bad conduct is the law suppose to address. We should look at the intent of the people who drew up the law. Two approaches. The intent is in the words. Supported by Madison and justice Scalia. U can infer the intent by looking at the words. Do you give the meaning of the words when they were first set down or the meaning that it is today? Third approach is to figure out what the Intent is General intent- Look at general purpose. Specific intent- specific intent of the law Bol earwax vs us. Wiretapping on a telephone. In warranted search ad seizure does it prevent government from tapping your telephone. Majority said what does search mean? Search means someone enters your premise seizure is to take.

Majority said tha what search and seizure mean. But if government taps telephone ur not taking anything. It just recurring your televphone. Does not apply to u. Briar says look at the history of the law. Look at debates and previous statements to see what the law was trying to accomplish. Regardless of the text a purpose in mind the law has taken on a life of it's own. People act that law means a certain thing. To deny that would throw thing into chaos. So history and precedent is an important way to know what law means. If u have a certain set of facts and a certain law that yields a result should do the same later on if u have a law and a set of facts it should yield the same result.

Natural law is moral principles that exist in nature. Said to come from god. We can understand and then apply them. We must see if they conform with our laws. If they conform we obey but if not we disobey them. Supreme political authority decides the law. Such as tyrant or king. This is positive law. The person makes the command and then must be able to enforce it. According to Austen the command from the political authority is enforced. And thats what makes the law. The question of morality is interesting but it has nothing to do with whether soothing is a law. Two ways of looking at law. First Is the text. Zander says literal rule. You read it nd that's exactly what it says. But to prevent absurdity u use the golden rule. The second thing we look at is intent. We can do this by looking at the words or examining the speeches that the makers made so we can get their point of view. Rule of precedent says that if u have a law and a set of facts and they produce a set of rules and u have a law and a set of facts 20 years later then you should get the same results. This is precedent. It's called stare decis. In Britain this Is called common law Justice requires that equals be treated equally. Efficiency. U don't have to reargue everything. Predictability. You can look backwards and forward look g. We will decide the same way in the future as we did in the past. Edward levy was a law professor at Chicago and he was also attorney general. He cleaned up after watergate. He wrote a book about legal reasoning Levy addresses the question of precedent. Levy is saying your never gonna find two cases that are identical. There always gonna be different. Are they so different that u have to give a different result or are they so similar that you have to give the same amount. Holmes said law consists of central principles and from these principles were rules and regulations. Judges would find the law. Holmes said they were mistaken however it is not logic. It is experience. Winning private suits or how law is enacted. If u wanna understand the law don't look at th logic. Look at the conflicts between private persons or public body in criminals or legislators in law and regulations. Law will always contain things ghat are illogical. Interview with justice Kennedy. Kennedy is asked how makes his mind. After u make a judgement then must formulate

the justification for the judgment with A logical formula. Is it fair. Ethic and morality. Charles black says we should look at the declaration of independence. E American law comes out of it. It's a document in which these men declare themselves free from Britain and lists the reason why declaration of independence has legal status. We are in debt to our creator for life liberty and the pursuit of happiness. Does the constitution allow us to exercise these rights. Black says it's in there because the declaration of independence is incorporated into the constitution. Judicial review Doctor bonham case He was practicing medicine without a license. College of physicians tried the case as whether or not he was practicing without a license. Judge Coke. The law was over turned. Coke said that when parliament set up this system to decide whether a doctor could practice medicine. They did so in unlawful, way so this law is invalid. Only case of judicial review in history of England. Can't do it if u violate common right and reason. The framers were familiar with this case even though it didn't caught on in England. It helps judicial review to have ad constitution. Council of revision- James Madison was prominent. Council of many members of the branches. Reviews laws after it passes congress but before it goes into effect. Answers the question of whether or not it is a good law. Does it achieve it's purpose. Is it ethical. In Philadelphia the framers rejected the council of revision. Hamilton said that the judicial branch is the least dangerous branch. Hardly have much powers. Have the power of judgment. To say what law is. They have the power to check what the constitution mean. Charles beard was prominent in the progressive era. Beard writes about the constitution and relates it to the declaration of independence. beard looked at the declaration of independence was a revolutionary document and the constitution a counter revolutionary document. Beard says the people with property were frightened of the transfer of power to the people without property so they met in Philadelphia. Beard believed judicial review was one way of frustrating the declaration of independence. Historians say beard was completely wrong. When they go over everything, it does not support the position beard took. John marshal did not grow up in intellectual atmosphere that Holmes did. He was involved in war for independence. Marbury vs. Madison Facts: Marbury was appointed a justice of the peace asked Jefferson for a commission Section 13 of the judiciary act said that you could go directly to the Supreme Court to seek a writ of mandamus (order telling an official to carry out a duty). Issue: Is this law unconstitutional? Holding: Marshall said that the section only applied to ambassadors and states. It constricted with the constitution. Therefore it was unconstitutional. For Marshall a constitution had to be stronger than an ordinary law. It is the nature of a constitution that it must be superior to an ordinary law. Otherwise, there would be no reason to have it. Must be superior than an ordinary law. It cannot be equal or weaker It is in the nature of the court that it tells you what the law is. If you put these two ideas together then you will get the court deeming section 13 unconstitutional. Council of revisions forced the courts into the legislative body. Judicial review on the other hand does not put the court into legislative body. Judicial review is established in 1803. Jefferson thought they had Marshal in a trap. Either impeached for supporting Marbury or Marshall would look weak. Marshall on the other hand established judicial review through this case. Jeffersonians couldn't complain because they

want. Marshall also never returned to this case. After 1803 there was never a case that involved judicial review for over 50 years. Thayer- Judicial self-restraint core beliefs is that judges should only step in and claim a law is unconstitutional if there is a clear mistake. Clear mistake meant without a doubt against the constitution. Only question is whether it violates the constitution. The law makers would get the benefit of the doubt. If there is a reasonable doubt that the law is constitutional. Judges are not democratically accountable. One of the Thayers argument for self restraint is democracy. You should depart from democracy when you can't help it. Only when the law makers make a clear mistake. According to prudence it is reckless for the Supreme Court to declare to many laws unconstitutional because it will end up with too much controversy. It will end up being a battle between president and congress or president. This would make the courts political and not a separate body. Applies to lower court. Third argument made was that the courts could not do much good. If you imagine that the court can ave a nation from itself then your are naive. Courts cant do much good but they can do much harm. They will be assumed to protect the people instead of the people looking out for themselves. Judicial activism Everyone who I appointed to court these days claim judicial self-restraint Does not have a core concept. Does mean however that the judges call it the way they see it. If they think a law is unconstitutional they should just say it's unconstitutional instead of waiting for a clear mistake. Laws are rules. Can't only apply to one person. Must apply to class of people What am I? A potted plant? Potted plants aren't active. They just sit there, he's saying do you expect the job to play no role at all? Judges participate in decision and exercise discretion. then you have to look at the consequences of your decision. A whole bunch of decisions are made by looking at consequences. Judge look at these decisions and then there consequences. They don't just sit there and participate. When you look at laws they force you to interpret. Judge has to question as whether the law fits the individual case in front of him. Judge is active in the judicial process. Judicial activism says the judge is gonna get involved. Doesn't mean judicial review is always going to be un-democratic. Judge not elected by people cancel out laws of elected people. Sometimes the majority may act against democracy. When the majority acts against democracy you can not open up the process through the ordinary democratic means. For example. White primary. Democratic party said they were a private organization. As such they have the power to determine their membership. They deemed that to belong to the party you had to be white. And only a member of the party can vote in the primary in Texas. There is a majority that is in favor of something that is not democratic. There not gonna change. To open it up you have to rely on someone that is not elected. It is a paradox that allows the courts the opportunity to open up the democratic system. Sometimes the court can it's role of being outside a democracy to allows it to make things more democratic. Also belief that judicial review is another check and balance. And lastly there is a division of labor. When you specialize in something. Activists say that the idea of division of labor applies to constitutionality as well. If you looked at how laws are passed law makers focus on the policy and politics of the law. If the courts does not look at constitutionality no one will look at constitutionality at all.

Both judicial activism and restraint are ideal ideas. No one follows it 100 percent. Judicial restraint is seen in Holmes and Frankfurter. Judicial activism is seen in Douglass and Earl Warren. Federalism Federalism arose from dissatisfaction with the past and hopes for the future. You can look at this portion of the articles of confederation, which receded constitution, was an alliance of 13 states during the war on Britain. Under the articles of confederation authority came from the people. People created states. People then came in a pact with the states and created a national government. What this means that the states can govern the people directly. But the national government can ot govern the people directly but instead through the states. States are at the heart of the system. The national government is dependent upon states. This is the system under the articles of confederation. States would give too little or nothing st all when it was needed for the war. This is why there were moves to change the articles of confederation in 1780s after the war there was slot of economic turmoil. They thought they could fix it. Went home without fixing it. Shays rebellion then occurred where farmers were facing turmoil. Prices for crops were down while price to borrow was forced up. Town after town farmers were closing down. Shay led a rebellion in Massachusetts and they attacked an arsenal. All national government could don was ask Massachusetts to help them back the rebellion down. After the rebellion. Delegates came together again. Could not revise articles. Junk them and start fresh. And that's what produced the constitution we know today. There was a new way to organize the system. Under federalism authority comes from the people and the people create the states but the people also create the national government. Which means both the state and national government can govern the people directly. Gradsons says Tend to imagine federalism looks like a layer cake. However it's not how it is in the real world. I stead it should be compared to a marble cake. It's all swirled. And a lot of grey area. Its all intertwined. Eplurabis unum- from many one. Under articles of confederation there was a weak central government. This brought about problems of legitimacy. Even an evil government will get respect if it can enforce it's commands. it was hard for them to act as a unit during the war and even harder to act as a unit after the war. Articles was a governmental system that was not functioning very well. Lacks a division of function. Functions that require a national perspective are delegated to national government. These are called delegated powers. Specifically to congress in article I. Powers that were better at a local level are reserved powers given to the state. Found in the 10th amendment. Basically they are the powers left over. When you talk about it in this sense though you get a layer cake. In the real world though it is not evenly divided and we have a marble cake with lots of sharing of functions. Mculloch vs Maryland Single most important case that Supreme Court ever decided. Mculloch set down great principle involved political controversy. The bank of the united states, was similar to the federal reserve. Hamilton was important to this time. He took care of important matters. He created the idea of a bank. Washington asked Jefferson and Hamilton whether congress had the poet to create a bank. Constitution did not give congress the power to create a bank. Jefferson said that they do not have the power because creating a bank is a big deal. If it could be done, it would be in the constitution. Washington decided to go with Hamilton. In 1791 bank was created with 20 year license to operate. By 1811 it was very unpopular. And seen as being the interest of the north east. Expired in 1811. In 1812 war began. And then a 2nd bank of the united states was created. More skepticism because it was ran by an incompetent man. 2nd bank be Mae very unpopular. States took a concrete steps against the bank. Maryland taxed the branch of the bank of the united states that was in Baltimore. The cashier mculoch refused to pay the taxes.

Supreme Court heard argument for this case for 9'days. This was a big deal case. Opinion written by chief justice Marshall. The first question he had to answer was whether or not congress could create a bank. He says yes, it's part of the necessary and proper clause to create a bank. A lot of congress's power relate to the economy. And with necessary and proper clause they can create things to accomplish these powers. The words necessary does nor have a fixed character. Basically it doesn't have to be absolutely necessary but it is necessary to carry out a mean. There are all levels of necessity. It may be true that the bank is not absolutely necessary but why must we commit ourselves to only one view of necessary. If congress says it's necessary then it is so unless it's ridiculous. This is the principle behind implied powers. Congress may do things constitutionally even though it is not expressed clearly that it can do that. In the first part of the opinion Marshall establishes that congress can create a bank. Maryland then said they can tax the branch in their area. Don't think we will abuse this power. John Marshall responds that the constitution is the supreme law of the land. It isn't a question of confidence. It is a question of which a part can control the whole. Marlyand is just a part of the constitution. The power to tax involves the power to destroy. Lucifer match industry for example. Marshall said states cannot limit or impede on the operations of the government without the governments consent. For example states could not require drivers of postal trucks to have driver license. When there is a case against the government and a state, the Supreme Court will decide on the case. Implied powers, national supremacy and Supreme Court will be an umpire all came out of this case. We must interpret constitution broadly. If we interpret it narrowly it will be hard to function. We have to interpret necessary broadly. William Brenan- one of the most significant Supreme Court justice in the last century. Raised in newark from immigrant parents. Father active in labor movement. He Went to college then law school then practiced law in New Jersey. Involved in labor law, he represented management. Took a job as judge in New Jersey and was promoted to court of appeals in New Jersey. Moderate to liberal republican. When Eisenhower was looking for re election he was gonna put a catholic of north east. Called a local priest and asked if en was a practicing catholic. Brenan was then appointed to the Supreme Court. Brenan became influential on the court and was one of the more liberal members. He built coalitions and to get people to agree with him. And became close to the chief justice Earl Warren. Warren would get him to write key opinions. Brenan makes the argument for living constitution. He says current justice read the constitution the only way they can as 20th century. He says the constitution is a living organic thing. It's true it was drawn in the 18th century but we have to make it work for the current times. If we do not the words will become obsolete. Against death penalty at all times Scalia was an originalist, Scalia says the living constitution does not allow for flexibility. Judges adjust the constitution to changing times. Who are they to do it. Federalism Public doesn't seem to care one way or another. If fundamentalism is so important why are people not care. Federalism is complex and a contradiction. Last time we looked at the subject of national supremacy. We saw this through Mculloch v Maryland. The conflict was very evident. You don't have the power to create bank v taxing the bank. Suppose conflicts are not so obvious. Pre-Emption Pennsylvania V. Nelson. This case involved a man named Steve Nelson. He was part of communist party in Pennsylvania. He's arrested for violating Pennsylvania sedition act which prohibited the advocacy to overthrow the federal government as well as the government of pennsylvania. Mr Nelson was not interested in over throwing pennsylvania. Why can't Pennsylvania prosecute him on this claim. Different from Mculloch v. Maryland because it clashed with the state, in this case they are trying to seek the same goal as the state. Warren poses three questions: 1. Whether the national government has a dominant interest in this subject. 2. Has the national government set up a pervasive system of regulation?

3. Is there a possibility of conflict in the administration of state law? If answer is yes to all three then national Pre-empts state law. Even though there is no conflict at face value. PreEmption makes the national government even more powerful than it already is. Chamber of commerce v. Whiting Question whether Arizona law of checking documenting workers, was Pre-emptied by congressional law. Would it be a case of National policy where Arizona would have no place, dominant national interest in immigration. Power the regulate undocumented citizen is part of the state. But immigration is to the united states. Not Arizona. But Arizona focused on licensing in which was a loophole left by congress. Supreme Court agreed that the Arizona law did not Pre-empt congressional law. Riegel v. Medtronic- used medicine the way it was not supposed to be used. Musician had to get her hand amputated. She claimed company had been selling this product which was defective. The company said we were approved by the food and drug administration. There should be a national regulation here. There should not be worry that there is one system in each state. There has to be a national system. The Supreme Court agreed that there had to be some kind of national system. Supreme Court and other Branches Separation of powers- unlike federalism does have theoretical basis. Montesquieu was a father of the separation of powers. He believed it was essential for liberty. Madison says ambition should be made to counter ambition. If you have branched that are interdependent then they will regulate each other. How do you make a government strong enough that u can make it do what u want it to do but not so strong that it weakens your federal liberty. Weak government in confederates. Super strong in Britain, threatened liberty. Madison's answer consisted of : 1. Limited authority, no governmental institution shall be given unlimited power. The powers are outlined in the constitution. 2. Checks and balances- set up institution that were interdependent. They needed each other so they would check each other , this would make limited authority vital. 3. Extended republic- nearly everyone that had written on republics before Madison said u can only have a republic in a small nation. Republics had to have public who were motivated by the great good of the whole, only in a small society. Once you get a large society things become impersonal and selfish. Very small societies are also very vulnerable because their small and weak. They always have the threat of being taken over. Madison on the other hand believed that size was not an obstacle, size was an advantage. Madison said if you look at society. What you will find is the fundamental unit (faction that had common purpose). The problem is that you want to prevent any one faction from taking over. If one faction takes over the institutions check and balances won't work. If you have large society, Tojo have many factions that will fight with each other constantly. With this situation, you will have checks and balances within society. No one faction I'll be able to take over because there are so many, and they will all be able to fight each other. Republic in large society might actually work. Placed into constitution. Most famous checks and balance involves the three branches of government on the national level, judicial, legislative, and executive. Martin Diamond writes on the value of this system. He says it's suppose to oppose tyranny, one branch of government

from opposing the other branches and people getting together to oppose the whole system. Diamond sees the separation of powers as a device for making the government more competent. In order for government to be competent it must have a strong executive. Allows executive to be powerful enough to execute the law effectively. With the articles the executive was non existent and the government was incompetent. Equally important to prevent tyranny. Robert Dohl- Decision making in democracy. Ay given point the most important members of a society tend to share common goals and values, able to work together. Dominant national alliances. Sees these alliances rising and falling in the years. The alliance matures and exercises its powers. Replaced by another alliance. Supreme Court is usually part of dominant national alliance. What does the Supreme Court bring to the alliance? What does it have to offer? Hamilton in federalist 78 said court lacks power of purse and power of sword but it has judgement. Dahl suggests that r look at legitimacy. Max Weber- interested in why people obey? Identified threes basis for legitimacy. 1. Tradition-we accept things because it has always been done this way 2. Legal rational- the law requires it or it's just sensible 3. Charisma- there will be a leader. Policies will appear to be legitimate. Justices are like priests who interpret the constitution. Always give reasons. Never arbitrary. Much of legitimacy comes from constitution and Supreme Court is the group that tells us what it means. Dahl says the Supreme Court also has the power to say yes. By saying yes it's allowing these national alliances to be legitimate. Emphasis on Supreme Court saying yes. Central role of the Supreme Court. Less important than role of president and congress. It can't say no to often without setting up backlash. It can influence and slow down policy. The are many thing the court can do other than declare unconstitutional. Court can act when other branches can't act by blockage in system. Court can take initiative and work around that or can take it on in fairness. Dahl sees a court that is powerful but much less powerful than the public gives it credit for. Judicial review is important because it gives the court the power to say yes not only the power to say no. Dahl echoes the courts as the weaker of the three branches. Supreme Court went from taking the constitution doesn't require it to a position of where anything you take is okay with us. Living constitution view. When Dahl is talking about national dominant alliance, he says they rise and fall. They rise and fall because ether will be a challenge that the country will think the the alliance has not satisfied. This is why they come out and another alliance takes over. These alliances are stressful and happen when big crisis faces the nation. Dahl focuses on constitutionality of national laws but leaves out state laws and statutory construction-limit or broaden the law. The kinds of cases that Dahl look at were important but were not the whole story. Perhaps if he had look at those things he would have came up with a different solution. Changing of dominant national alliance. Re-aligning election when some perceived crisis, where voters made. A decision toward the new people instead of the old ones that were running the system. This can be seen in the new deal alliance. New alliance replaced old alliance. No longer have alliance. It comes and goes. No longer tlks about re aligning but talk about de alignment. Dahl points out that the Supreme Court really can't take on the other two branches. Casper bring up that it isn't a weakness of solely the court but of all the branches. Supreme Court to congress Habeus corpus- produce the body. So important it was included in original constitution. If the government is holding you in custody, the. You can go to a judge and demand it justify holding you. McCardle case Law was woodruff about southern governments holding freed laces and northern sympathizers without justification. Mr

McCardle was arrested for writing hostile articles towards reconstruction. So he sued under this law. Congress said you could appeal to the Supreme Court for a writ of habeus corpus. Supreme Court decides to wait. As were waiting congress voted to repeal the law it had earlier passed. Up to congress. Congress potentially has the power to undermine the Supreme Court. Chadha case Came to the country on a student visa, stayed beyond time. But was on the justice department list of people that can stay in this country. On en use of congress could vote on any one of these names. Congress passed law for peoples whose status is in decided. The house voted to take mr chadha off the list. The question is whether this legislative veto was constitutional. Chief justice burger speaks in formalist way. The constitution tells us how to pass a law. In order to pass a law it has to be passed by both houses and signed by the president. Justice white gave functionalist argument White was superman. He was born on poor farm in Colorado spent his childhood licking sugar beats. Went to university of Colorado. Mosty celebrated athlete in the country. Very practical approach in his decisions. Looks how things were developed. When things were drew up there was no Bureaucracy. One house legislative veto. We have to let congress make up it's own mind. By having one house veto it's not over extending powers.

Executive office- federalist 70 written by alexander Hamilton. Ambitious young guy who was born from unwed mother and in the Wes indies. Cme here as young man and became a success. Worked with Washington. Hamilton believed that if the nation was to succeed it had to have a strong executive. The office of the president had to have unity. Unity meant The president is one person. His term of office should be set and fixed term. In Britain prime minister calls election when he feels like in 5 years limit. Framers said there should be a fixed time of election and fixed date. Hamilton said president is elected by the people through the device of the electoral college. In Britain the majority party picks the prime minister. I. Our system president cannot be in the legislature, have to give up seat in congress. In parliament all people are part of parliament. There is no distinction. The system that they were describing in Philadelphia was a different kind of system than Britain and every other nation. Hamilton hope that under this system the president would be able to supply energy. What Hamilton meant by energy, was that president should be able to supply leadership. Energy with purpose. Most of the framers believe that the most powerful organ of government would be congress. Hamilton believe that president can supply leadership. If you follow the people too much. You will get nowhere. Edward Randolph said the president is a fetus form of monarchy. We all say we want leadership. Difficult to observe leadership in extract. It matters where u are lead. It's better to not be led if you are being lead off a cliff. Leadership in times of emergency. Short periods when the system comes under alot of stress. Present can claim nation needs a strong leader, can only happen if people let them. Congress and interest group get out the way and support him. Constitution Is silent on emergencies. On one hind everyone recognizes that u do need leadership, u can never get leadership from congress . To many people. They can provide deliberation but cannot provide leadership. How do we know "emergency" is a genuine emergency. We can look back at vietnam. We had a destroyer off the gulf, we said I was fired upon. Johnson went to congress and demanded a resolution that would give him power to repel aggregation, both houses passed. Theodore roosevelt was known as an outdoorsman. Taft on the other hand was an enormous man. Each had a different idea of what a president is able to do. Roosevelt- Stewardship theory, president take ace of the people, he could do anything to take care of the people

unless the constitution said he could not. He use power in conservation and in foreign affairs, panama canal. President is steward. Taft- believed only if the constitution tells him he can or tress tells him he can. President is chief magistrate. Important issue to this day, whether the present has inherent powers. Number of presidents say they do have inherent powers. Article 2 of the constitution vest executive power in the president. The president has this inherent powers. John Yoo argues that the importance of the inherent power of the executive had been recognized for hundred of year. John Locke talks about an executive. Two executives, domestic and foreign affairs. In Britain the prime minister had unlimited power in foreign affairs, because the nation had to speak with one voice. According to Yoo congress power to declare war is the power to say a war is going on. Doesn't have a power to start a war. If congress had a power to start a war, they would say congress had power To start a war. America has been involved in over 200 wars. Only 5 of these has been declared by congress. So you can conclude that the president has this inherent power which is strong in foreign affairs. Mississippi versus Johnson, congress had passed reconstruction act, basically the north military would occupy the south. Andrew Johnson wrong man took over. Be,lever reconstruction as unconstitutional so they wanted the court to tell Johnson that he shouldn't carry out the law. Court rule that they could not order President to not carry out law. They can not issue an injunction. People of Japanese dissent in world war 2. A lot of dissent of Japanese on west coast. This enflamed when Japan defeated Russia in russo Japanese war. Prior to this, whites in California didn't care much. There were talks of yellow peril and economic hostility. A lot of hostility to those Japanese descent. During this period there was a gentle mans agreement here us would not ban Japanese immigration and make laws that were discriminating against Japanese.. Japan would not send manual labors. Pearl harbor was treachery. Roosevelt did not give lot of thought to what to do with those of Japanese descent. First people of Japanese descent were put under curfew. Then they were taking and sent to relocation centers around the country. They were giving a few days to leave. Relocated to remote areas Many were american citizens. Sometimes these camps are called concentration camps. Supreme Court had to determine whether these people could be relocated to these camps. Justice black was born in clay county Alabama to a fairly prosperous man. Went to hs but then dropped out. Then went to law school. Got a degree. Practiced law in Alabama. Personal injury lawyer. Judge for night court. Ran for senate. Roosevelt nominated him to court. Sat on court for 30 years. He was a vigorous defender of civil liberties. Justice black was not a passive member of kkk but an active member. In this specific case, korimatsu vs united states, black wrote the majority opinion. Black begins by saying some people might consider this policy racist, but he says it really isn't, the president is commander and chief, he is in charge of the war effort, he determines that this is necessary, the Supreme Court is not in a position to second guess his judgement. The military, and advisors had signed off on it. Justice Murphy and Jackson wrote dissenting opinion. This was a racist policy. How is it that your singling out these people. No proof anyone ha done anything. Assuming racial ties brought about disloyalty. Court could have upheld policy, strike it down or not hear the case. Does this create a precedent so that in the future president can relocate groups it don't like. The court wouldn't have to say no or yes. At beginning of his opinion justice black talks about strict scrutiny. Began with footnote of the caroline product case. Strict scrutiny mean that if an individual fundamental constitutional rights appear to be threatened by a law. Then the courts should subject it to strict scrutiny. This means that 1. Government has to demonstrate a compelling interest. 2. The law must be narrowly tailored. Question of ends and means. Ends have to be compelling. Justice black said that this moving of Japanese met the strict scrutiny test. Two parts. Identification questions. Select 3 out of 4. Describe the thing and it's significance. Second part will be two essay questions. Directed towards broad issue that we should address. U will have to frame an argument. For example. Should u evaluate something. U have to weigh the plus and negatives and see which is more weighty. You have to

make an argument and have to have facts. Two midterms. First is Mandatory. Second is optional. Then a cumulative final exam. Could have cases and could have justices, important people. Original intent. what a law or provisional law means. What purpose did the law makers try to achieve through this particular law. Not the same thing as motivation. Motivation is why. We don't care of motivation. Intent is the purpose they tried to achieve. Two ways to measure intent. First is you can infer intent from the text. Look at the public meaning of the words and nothing else. From that you can figure out what the law was supposed to accomplish. Justice Thomas is an activist of this position as well as justice Scalia. Another way is lets look at what a provision or law has to say. U might look at debates in congress. Or speeches and see that these things will allow u to get in the mind of people that drew it up. Positivism. Positive way is that law is the enforceable command of a supreme political authority. The person or institution that is in charge. It issues a command and it is able to enforce it. That's the law. No matter if its immoral or not. While natural law has moral content. Positive view does not. Precedent lue Ellen Why do justices use this technique. What is the advantages it has. Pops up everywhere. Common way we argue in ordinary life. You do not have to reargue every case from square one. U can use elements Fromm the past. It also allows stability and continuity. Legal system has two masters. Two horses going in different direction. One direction is change. The law has to change as circumstances develop, technology and advancement. The other one is stability. We have to make it predictable enough so we can deal with it. We are always making arrangements that will bind us. Law is important tool for that purpose. Borrowing and lending. precedent is a main tool in stability. Holmes believed in judicial self restraint. Holmes was the first great exponent in judicial self restraint. Court should interfere only when law makers a clear mistake. Holmes didn't really care about most of these things. He was higher than society. Mccardle was a person in mississippi who was a sympathizer for the south. He was a real trouble maker. He was arrested and he said that they are holding him without justification. He sued asking the court for a writ of habeus corpus. if the government is holding somebody it can be forced to go to a judge and show that it is justified. It has to justify holding u before a judge. He believed he was being held without justification. It appealed to Supreme Court because congress passed a law for cases like this to be heard by the Supreme Court. They delayed however because ether knew congress was conspiring withdrawing the law that gave the court the permission to hear the court in the first place. While they were waiting congress passed a law saying no the courts can't hear the cases. Congress said court and present Johnson were friendly to the south. They were hostile. When members of the Supreme Court died they refused to confirm anyone. The court shrank to seven. General and specific intent General intent is broad purpose of the law. Specific intent is the specific purpose of the law. Discrimination where black's were only hired for lowest jobs. Union got together and created a voluntarily seniority system. It was about promotion. Before this u would be promoted depending on how long u work at the factory. No blacks would get promoted because they just got the job. If u follow this path only whites would get promoted. With the voluntary system there was two paths, one for white, and one for whites. weber a white man says he was being discriminated against, he has been there for many more years than the blacks. Supreme Court had to cinder what congress intended to accomplish with civil rights act of 1964. Webber said if u look at the debates in congress, people that supported law said that there should be no racial quotas or anything like that. The specific intent of the law would rule out this seniority system. But when looked at the general view of the law is that the law is suppose to accomplish bringing black workers into the main stream. Specific and general intent don't go together.

Robert Dahl America like other industrialized democracy tends to be dominated by loose national alliance. There will be this national alliance that share certain goals and values. Eventually this alliance will be faced with some major challenge that they will be unable to handle to the satisfaction of the voters. The great example was the great depression. Where republican pro business alliance that dominated the country since civil war. Didn't knew what to do. So the offers got rid of them. The Supreme Court is not elected. The voters can vote out congress and president but court justices are therefore life. This means when one alliance is giving way to another. The legislative and executive branch are on point but the judicial portions is trailing. This is what u found in the great depression. So Dahl says the Supreme Court lacks the two great democratic powers. The power of the sword and the power of the purse. The court then has the power to legitimize decisions of policy in the national dominant alliance. It can legitimize them by saying it's constitutional. The court is the keeper of the constitution. It's up to them to ay what it means and if a law conforms to that meaning. Dahl emphasized the courts power to say yes. A court that Is not powerful to Hamilton, but Dahl compares it to a congressional committee. It can't take on the two other branches of the govt, Chad a case . Functionalist and formalist point of view. Formalist said that the one house veto that allowed this veto conflicted with the constitution. May not be efficient but prevents tyranny. It's like a cookbook Functionalist, justice white, let's look at the functions that com tress performs. Overseeing the bureaucracy . Was not in constitution because no bureaucracy then. This legislative veto is great to perform this function. They used it in many laws so they should continue using it. Relate to the living constitution. Constitution is not just not a document but an organic quality. Grows and adapt to changing times. Douglas judicial activism Judicial self restraint which is the clear mistake. Court should declare law unconstitutional only if law makers make a clear mistake. Clearly unconstitutional. Not just stupid and evil. Judicial activism Judges should not be so squeamish when deciding a law is unconstitutional. It is their job. It's just a division of government. If don't do it. It won't get down. Judicial review is outside governmental process. It promotes democracy. Only if ur outside the political process can u open it up. Judges call it the way they see it. Judicial review in dr. Bonom case. Case decided in England in 1610. Doctor was practicing without a license from the royal college of physicians. Te college had to decide whether he could practice. If not the could fine him and the money would go to the college. They is conflict of interest. This is the case that was decided by Edward cook. He said that the act of parliament that set up this system is invalid. Invalid in the fir place because it goes against natural law. principle that says you can't be the judge in your own case. Judge is impartial. It conflicts with natural and common law. For those reasons. Judge cook said it's invalid. Only time ever happened in Britain. Hoe does tokesville view support dahls theory Tokeville believed the courts power depends on public opinion. When Dahl says the court can legitimize, it's saying it can effect public opinion Delegated powers belong to congress. Delegated and enumerated same thing. In article one these powers are given to congress. these are delegated. The tenth amendment says the powers left over are reserved to the state. Sometimes called the police power. They are not listed. It's whatever left over.power for la and order. Regulate education. Moral and healthcare.

Eugene Rosto is advocate judicial activism and review. thinks it can make the system more democratic. The extra constitutional considerations, courts have to make decisions about particular laws. How do they make them? It's possible that they might not only look at constitutional matters. They might look at international practices. For example capital punishment applied to minors. Would it be cruel and unusual to execute someone under the age of 16. The Supreme Court looked at international arena and see if there are other courts that did this. They took into account international practices. Another example is practice the court finds repellant. Case in California where a man was suspected of swallowing drugs to prevent the police from using it against him. Police pumped his stomach. Sure enough they found the drugs. The case went to the Supreme Court. Something like this outrages the conscience and the constitution doesn't permit it. What is the conscience? It used to be the voice of god. Just too much for Supreme Court. Calder vs. Bull raises the natural law argument. It is parallel to dr bonom case. Situation where there I'd an ex post facto law. conduct was lawful at a time but is now unlawful. Can law makers say this law that was lawful is not unlawful. Council of revision. Council of revision, framers in Philadelphia include something modeled after the council of revision that would consist of judges and legislative branch members. They would look at a law after it I voted on and de de whether it should be approved. It was not approved at the constitutional convention. Violated separation of branches. In a vague way resembles judicial review.

MIDTERM 2 REVIEW Presidency Theodore Roosevelt: Stewardship Theory (John Yoo supports it) The President is a StewardDoes what he can for the people unless it is unconstitutional. Broadens Power of Presidency

William Howard Taft: Chief Magistrate Theory powers Strict Constructionist view of the presidency. President does not have inherent powers. Constitution limits the presidents power Inherent Powers- Article II of the Constitution President carries out the acts of Congress. Its a more narrow view of scope on presidential

Mississippi v. Johnson (1869) Dealt with 1867 Reconstruction Act President Andrew Johnson vetoed the act; Congress overrode the veto.

 Mississippi appealed to the Supreme Court, asked for an injunction (Order from a judge, to do or not to do something) Mississippi asked the Court for an injunction preventing the President from enforcing the Acts on the ground that they were unconstitutional. Holding: The acts were unconstitutional, but the court could not issue an injunction because the court has no jurisdiction. Korematsu v. U.S. (1944 ) Law that relocated Japanese to internment camps in CaliforniaKorematsu violated the law. The holding was that the policy to relocate the Japanese was not racist

Outcome: Strict ScrutinyIf a law appears on its face to abridge constitutional rights the court should subject it to strict scrutiny. Ex Parte Milligan (1867) Facts: Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court. Question: Does a civil court have jurisdiction over a military tribunal? Holding: Davis, speaking for the Court, held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating. Ex Parte Quirin World War II. Six Germans end up on the shores of Long island. They hop on the LIRR. And Go Shopping. They go to the Statue of Liberty. They go sight-seeing and even shopping at the worlds largest department storeMacys Herald Square. Like the idiots that they were, they were tried in a military tribunal as unlawful combatants. Holding: The conviction was upheld because this was because the president did not overextend his powers Hamdi v. Rumsfeld Facts: He was in Virginia, unlawful combatantdetained in a military prison. He argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system. Holding: The court allowed the detention of Hamdi, but people like Hamdi, Unlawful combatants, are entitled to some essential constitutional rights Hamdan v. Rumsfeld. Facts: Bin Ladens personal driverHe had weapons inside of the trunk of the car and the government wanted to prosecute him in a military tribunal. This case was in opposition to the Hamdi case. Holding: Hamdan cant be prosecuted in a military tribunal because of international law treaties signed by the United States Government. Ends: Compelling Interest by the government Means: Will almost be narrowly tailored to no other means to achieve this goal.

Youngstown Sheet & Tube Co. v. Sawyer (SCOTUS 1951)- Hugo Black-literal meaning Facts of the Case: In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. Question: Did the President have the constitutional authority to seize and operate the steel mills? Holding: In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." US v. Nixon (SCOTUS 1974) Facts: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Nixon argued for executive privileged relationships. Without these relationships there is a potential to release sensitive information. Lawyer and client. Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? Holding: This dispute is within the realm of judicial review. The Supreme Court recognized that there is limited executive privilege in principle but not in this case. Court said that Nixon claims was too general while the special prosecutor had a specific claim, Balancing test. Specific claim took precedence over general claim. Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes. Clinton v. Jones (SCOTUS 1997) Clinton vs. Jones- Bill Clinton, Paula Jones- employee for Arkansas claimed that she suffered sexual advances, punished by state supervisors. Clinton enter to postpone the suit until he leaves office. If Clinton is sued he not be able to do his duties. Holding: his sexual advances did not allow for presidential immunity. Separation of power allows judiciary to interfere. Clinton vs. NYC 1997 - Line item veto- remove certain parts of a bill. Increases presidential power. Is the line item veto constitutional? Holding: No. Constitution has no line item veto, president has to veto its entirety. This is a formalist view. Bush v. Gore 2000 Facts: Close election, Florida had a disputed ballot, wanted to manually recount.

Holding: The counting should stop. Safe harbor deadline was approaching: state certifi`es the results of the election, Congress cant dispute them. The constitution is silent on the right to vote, but there needs to be a standard practice for counting votes. State legislature gives you the right to vote, this is a fundamental right, possessed equally by each. COMMERCE Gibbons v. OgdenFacts: Ogden was given a license by state of New York in the steam boat business. Gibbon was given the license to navigate between New Jersey and New York by congress. Holding: What does among the several states mean and what does regulate mean? He looks at commerce and says that commerce is not restricted only to buying and selling. Commerce incorporates all kinds of commercial intercourse, including navigation. What does among mean? Marshall said among mean affecting more state than one. He's not saying the specific activity has to cross a border. This implicitly grants Congress a tremendous amount of power. What does regulate mean? Regulate means providing a rule that governs conduct, and congress can use this as long as it doesn't violate the constitution. Marshall defines the commerce powers of congress. *There was a concurring opinion written by justice Johnson who believed only congress could regulate commerce. Dormant commerce power- Congress does not regulate commerce, even though it can.

Liberty of contract- free to make contracts, if not counter to public policy Lochner v. NY Facts: The Bakeshop Act was a New York state labor law, which prohibited bakery employees from working for more than sixty hours per week or ten hours per day. Lochner permitted an employee to work in his bakery for more than sixty hours in one week and was convicted of his second offense and fined. Lochner appealed his conviction on the grounds that the law violated his freedom to contract under the Due Process Clause of the Fourteenth Amendment. Holding: Lets say youre willing to work 13 hours a day 7 days a week- you should be able to make this agreement. New York law that governed the working conditions of bakers is unconstitutional, since it infringes on the right to have a contract. Holmes' dissent: Holmes accused the majority of judicial activism, pointedly claiming that the case was "decided upon an economic theory which a large part of the country does not entertain." He attacked the idea that the Fourteenth Amendment enshrined the liberty of contract, citing laws against Sunday trading and usury as "ancient examples" to the contrary. He added, "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory." National Police Power- Congress uses Commerce clause to carry out functions that usually belong to the States. Champion v. Ames (1900 SCOTUS)

Facts: The defendants in the case were arrested and convicted under an Act of Congress of 1895 that made it illegal to send or conspire to send lottery tickets across state lines. Champion argued that Congress is trying to regulate moralsCongress calls gambling an appalling evil. Holding: Congress has the power to control channels of commerce, it can determine that a certain activity (like gambling) can populate the channels. Hamer v. Dagenhart (1918 SCOTUS) Facts: The 1916 Child Labor Act, prohibited the transportation in interstate commerce of goods produced at factories that violated certain restrictions on child labor (have to be 14 to work). The factories that violated this law were barred from shipping their products for 30 days. Roland Dagenhart worked in a cotton mill in Charlotte, North Carolina with his two minor sons, both of whom would be barred from employment at the mill under the Act. Issue: Does the Commerce Clause grant Congress the power to regulate the transportation in interstate commerce of goods that have been produced using child labor? Holding and Rule (Day): No. The Commerce Clause does not grant Congress the power to regulate the transportation in interstate commerce of goods that have been produced using child labor. The power to regulate interstate commerce is the power to control the means by which commerce is conducted. It is the power to prescribe the rule by which commerce is governed. Congress is trying to regulate labor, which is reserved to the states. Manufacturing is not commerce, therefore Congress can not regulate it. Swift v. U.S. (1905 SCOTUS) Facts: A "meat trust" developed in Chicago, in which major dealers of meat agreed not to bid against one another in order to control prices. The trust also pressured the railroads into charging them lower-than-normal rates. The U.S. government attacked the trust as an unlawful economic monopoly. Issue: Did Congress have the authority to regulate the meat trust under the Sherman Anti-Trust Act? Holding: In a unanimous decision, the Court held that congressional power under the Commerce Clause justified regulations of the meat trust. The Court held that the effect of the trust on commerce among states was not "accidental, secondary, remote or merely probable," but rather a direct attempt to monopolize commerce. Business done at the stockyards was found to be one part of a continuous stream of commerce. The Court drew a distinction between manufacturing monopolies, which had only indirect effects on commerce, and sales monopolies, which had direct and intended effects on commerce. The Shreveport Case (1914 SCOTUS) Facts: The Interstate Commerce Commission regulated railroad rates nationally, while Texas set its own rates. Holding: Texas cannot regulate railroad rates, since it affects interstate commerce, and because it makes national regulation weaker. Schechter v. U.S. (SCOTUS 1934) Facts: Section 3 of the National Industrial Recovery Act empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. Poultry company challenged the NIRAs constitutionality. Question: Did Congress unconstitutionally delegate legislative power to the President?

Holding: Schechter cant regulate commerce after the chickens have been delivered. The NIRA unconstitutionally redelegated legislative authority to the President. Administrative state- where people work for agencies that make regulations that have the force of law. Carter v. Carter Coal Co. (SCOTUS 1936) Facts: 1935 Congress enacted the Guffey Coal Act, which regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. Although compliance was voluntary, tax refunds were established as incentives to abide by the regulations. Carter, a stockholder, brought suit against his own company in an attempt to keep it from paying the tax for noncompliance. Issue: Did the Guffey Coal Act violate the Commerce Clause? Holding: Yes, the 1935 Act overstepped the bounds of congressional power. The Court ruled that "commerce" is plainly distinct from "production." Direct Commerce- without an intermediary Indirect Commerce- with an intermediary cause

Dissent (Cardozo): In response to the majority's direct/indirect test he said, a great principle of constitutional law is not susceptible of comprehensive statement in an adjective. NLRB v. Laughlin (1937) Facts: With the Wagner Act of 1935, Congress determined that labor- management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the national government. In this case, the National Labor Relations Board charged the Jones & Laughlin Steel Co. with discriminating against employees who were union members. Issue: Was the Wagner Act constitutional? Holding: Yes. Steels labor trouble had a close and substantial effect on commerce in other states, since collective bargaining was an essential condition of industrial peace. US v. Darby Lumber (1940 SCOTUS)- overruled Hamer v. Dagenhart Facts: In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages, maximum weekly hours, and child labor. Corporations that engaged in interstate commerce or produced goods which were sold in other states were punished for violating the statute. Issue: Was the act a legitimate exercise of Congress's power to regulate interstate commerce? Holding: The unanimous Court affirmed the right of Congress to exercise "to its utmost extent" the powers reserved for it in the Commerce Clause. Relying heavily on the Court's decision in Gibbons v. Ogden (1824), Justice Stone argued that the "motive and purpose of a regulation of interstate commerce are matters for the legislative judgment . . . over which the courts are given no control." Congress acted with proper authority in outlawing substandard labor conditions since they have a significant impact on interstate commerce. Wickard v. Filburn (1942 SCOTUS) Facts: Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly

12 acres of wheat above his allotment. He claimed that he wanted the wheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. Issue: Is the amendment subjecting Filburn to acreage restrictions in violation of the Constitution because Congress has no power to regulate activities local in nature? Holding: According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'" Congress can still regulate his activities, since they affect the entire US market, whether directly or not. Heart of Atlanta Motel v. US (1964) Facts: Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II. Issue: Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers? Holding: The Civil Right Act of 1964 is constitutional. The Court concluded that places of public accommodation had no "right" to select guests as they saw fit, free from governmental regulation. Perez v. United States (1971) Facts: Perez was a loan shark. He was convicted under Title II of the Consumer Credit Protection Act which was a federal law prohibiting extortionate loan activities. Procedural Posture: Perez challenged his conviction on the grounds that the Act was unconstitutional as being an impermissible exercise of the commerce power by Congress. Issue: Whether Title II of the Consumer Credit Protection Act, as construed and applied to Perez, is a permissible exercise by Congress of its powers under the Commerce Clause. Holding: Yes. The majority accepted Congress findings on the relationship between loan sharking and organized crime, and the effect of organized crime on interstate commerce. They stated that the commerce clause reaches protection of the instrumentalities of interstate commerce, which included the policing of organized crime. Citing to Darby, the court reasoned that it was permissible for Congress to regulate a class of activities without proof that the particular intrastate activity that was thereby controlled had an effect on commerce. Dissent: Conviction for loan sharking under the federal law should require proof that the individual was actually involved in interstate activities. Otherwise, a purely local problem would be regulated by the federal government, contrary to the States police power. Loan sharking is only a national problem in the sense that all crime is a national problem. There is no distinguishing factor about loan-sharking that lends itself to being a threat to interstate commerce per se. This would all lead to making all crime part of the commerce clause US v. Lopez (1994) Facts: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school

zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Issue: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Holding: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity. U.S. v. Morrison (1999) Facts: Two football players at Virginia Tech was sexually assaulted. College didnt do much, she brought a suit through the Violence Against Women Act. Question: Is the VAWA constitutional? Holding: No. Appeals court ruling affirmed. Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the Supreme Court of the United States (Supreme Court) determined that violence against women does not substantially affect interstate commerce. CASES THAT REDUCED CONGRESS COMMERCE POWERS Paul v. Virginia- Court said that insurance is not commerce, since selling insurance is not a commercial activity. Kidd v. Pearson- distilling whisky is not commerce. US v. E.C. Knight- Refining sugar is not commerce. Had monopoly on refining of sugar. All happens in Pennsylvania. These exceptions had the affect of reducing the power of congress to regulate the economy the same time it was industrializing and becoming a national economy instead of a regional economy.

SEGREGATION Scott v. Sanford Facts: Case came during heightened slavery tensions. Supreme Court believed it could settle the question of slavery once and for all. Dred Scott was a slave from Missouri taken to Illinois, a free state. ISSUE: Dred Scott sued under diversity of citizenship. Could Dred Scott bring up a lawsuit as a citizen of the United States? Lower courts ruled that he was citizen enough. Holding: Justice Taney held that Dred Scott could not be a citizen, not because he was a slave, but because he was black, and the black man was inferior, unfit to associate with whites, and to be treated as merchandise. Also, the black man had no rights the white man was bound to respect. ORIGINAL PUBLIC MEANING: Blacks cannot be citizens because framers didnt think of them as citizens. 2nd rationale: Property in slaves does not vanish just because a boundary is crossed, that would violate the 5th amendment. Ultimate implication is that there can be no free states if slaves remain slaves while traveling with their masters to free states. Dissent: At the time of the founding of Constitution, many states didnt have slaves and the Constitution treats slaves as people with the 3/5s clause.

Civil War Amendments 13th AmendmentBanned slavery 14th AmendmentBlacks becomes citizens, makes due process clause apply to states, cannot deny equal protection of the laws 15th AmendmentThe right to vote to former slave males

Plessy v. Ferguson Facts: Plessy was 7/8ths white, wanted ride in a white rail car. But Louisiana had law that provided for separate but equal cars. Question: Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment? Holding: Brown said purpose of law was to make riders more comfortable. On its face the law guarantees equality under doctrine of separate but EQUAL. Dissent: Harlan said the Louisiana law violates equal protection clause. State was making judgments that blacks were so inferior that whites shouldnt share rail cars with blacks. Jim Crow laws violated the 13th and 14th amendments ban on slavery because it makes descendants of former slaves bear the badge of slavery. Said the Constitution was colorblind.

Cumming v. Richmond County Board of Ed Facts: Case in Augusta Georgia that involved first black school and school officials had it closed down while keeping open the white school. Issue: Is Georgia violating 14th amendments equal protection clause? Holding: Court ruled that Georgias case doesnt even raise equal protection issue because Georgia was doing the best it could with the resources it had. *Separate but equal usually only meant separate in most cases.

Gong Lum v. Rice Fact: Chinese girl wanted to attend a white school since she was not black. But Mississippi determined that she was colored and had to go to the black school. Holding: Court reaffirmed that states could segregate schools.

McCabe vs Atchison, Topeka & Santa Fe Railway

Facts: Railroad in Oklahoma, they had the separate but equal law(flessy), but the railroad administration did not have the money to buy provide separate cars. Holding: The railroad must provide the extra cars. Separate but Equal must be taken seriously. First step in breaking down Plessy case!

Buchanan v. Warley Facts: Law in Kentucky states you cannot move into a block where the majority is one race. Holding: S.C. struck down the law because it interfered with property rights. If you own a house you should be able to sell it to who you want.

Missouri ex rel. Gaines v. Canada (1938) Facts: Law school only for whites in Missouri, but Missouri had a policy in which blacks can go to a school in a different state and Missouri will play for it. Holding: Missouri is responsible for providing law school within its borders!

Sipuel v. Bd. Of Regents, University of Oklahoma: Facts: Sipuel wanted to got to the university of Oklahoma, and Oklahoma said it would build a law school just for blacks. Holding: She cannot be denied entrance into law school based on her race!

McLaurin v. Bd. Of Regents, University of Oklahoma (1950) Facts: Negro student was admitted to a grad school, even though he was in the same classroom as the white students, he had his own row and his own table, and in the library he had his own desk etc etc. He sued under Equal Protection of the Law. Holding: Separate can never be really equal even with identical situations. He cannot get the exact same level of interaction as other students hence he won!

Sweatt v. Painter

Facts: Black man applied to a white only Law school in Texas, Texas had a law school only for blacks but had the worst facilities and conditions, his application was rejected because of his race. When the case was brought to the state court, the university argued it followed separate but equal doctrine. Issue: Did this admission scheme violate the equal protection clause of the 14th amendment.

Holding: S.C. held that it did violate the equal law and required them to accept him as a student. The reasoning was that the separate black school was not equal in its facilities and faculty courses etc.

Brown v Board of Education 1: Facts: This case was brought as a class action, representing black children in America, the student Linda Brown went to school in Kansas, which was the border state, and in Kansas there was segregation on local bases. Issue: Kansas required the schools to be segregated under the 14th amendment. Holding: No. Because separation is inherently unequal! And therefore it violates the 14th amendment of the constitutions equal protection clause. Segregation generates a feeling of inferiority.

Bolling v. Sharpe (1954) Facts: Segregation was happening in Washington DC. Issue: Did the segregation of the public school in DC violate the due process clause of the 5th amendment? Holding: Warren says Yes, because it denied students liberty under the 5th amendments due process of law clause.

Brown vs. Board of Ed #2: Facts: same as Brown 1. Issue: How to apply the principal of desegregation. Holding: South is very diverse hence some parts are very difficult to desegregate. The court said that the local school should come up with a good faith effort to desegregate. If the schools do not de-segregate than black parents can take the school to a Federal Court for a court order to de-segregate, with all deliberate speed.

Swann v. Charlottee-Mecklenberg bd. Of Ed (1971) Facts: Federal judge made a plan for desegregating schools in this county of Mecklenberg, based on a racial ratio of whites and blacks. Issue: The argument against this was how can you classify people by race? Holding: N.C. said that a state may not classify on race regarding affirmative action. S.C. held that a state may classify with regards to race.

North Carolina Bd. Of Educ. V. Swann: Facts: The NC legislature banned busing to achieve desegregation. Holding: This violates the equal protection clause and the rationale was that you cannot classify based on race and this time the S.C. said that if the problem is racial than the solution must be racial too. Swann won twice.

The purpose of the Equal Protection clause of the 14th amendment: Purpose: To protect the interests of the freed slaves and their descendants.

To prevent states from classifying people by race to keep the constitution color-blind. Unlike before this clause, desegregation quotas was seen as unconstitutional since they established racial classifications.

State Case: Robert vs Boston Facts: In Boston, a white city, only 2 great schools for blacks, and Sarah Roberts wanted to go to a white school, and Sumner who was a senator who favored racial equality, he argued that a school is like a smaller world and segregation would not allow whites or blacks to interact properly. Holding: Slavery violated Massachusetts constitution but segregated schools did not. She lost and the segregation system continued.

2 types of segregation De Jure: Segregation required by law (PUBLIC) (SOUTH) De Facto: (NORTH) (PRIVATE SEGREGATION)

Keyes V. School District No. 1, Denver (1973) Facts: In Colorado, there was a segregated school system. Colorado was a Northern state hence De Facto segregation. Issue: Did the segregation violate the equal protection clause of the 14th amendment? Holding: Some segregation was caused by the governments manipulation. The courts said to assume that all segregation in the school system is by the government and hence Denver had to desegregate there school system. Both types were the same because the government was involved in both cases equally.

Milliken v. Bradley Facts: Detroit, Michigan had a segregated school system that was overwhelmingly black. Judge in the lower court ordered the desegregation of urban areas, by importing white students from the suburbs to the cities. Issue: Did the equal protection clause require this approach? Holding: This was Detroits problem, since it was de facto segregation, they cant do this. [The scope of the lower courts remedy exceeded the scope of the constitutional violation. The remedy must not be inter-district if the violation

was not inter-district. Since only one particular school district was found to have de jure segregation, it was the only district to which remedies were appropriate. There was no finding that the other school districts contributed to the segregation.]-not from Halpers notes. NEED TO ADD MORE HERE Dissent (Marshall): This way was the only way to do it. Dissent (White): The boundary lines separating Detroit and its suburbs have no constitutional status. The state creates them and abolishes them at its own will. They are an administrative convenience, how can they be more important than rights?

Parents Involved in Community Schools v. Seattle School District # 1 Facts: Seattle had a system of schooling which assigned students to schools on the basis of race. Issues: Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race in an effort to achieve a desired racial balance? Holding: No, it is unconstitutional because equal protection means that the government should not classify race on the basis of class. Dissent (Thomas): These laws are paternalistic because they view blacks as second-rate citizens. Thomas is against racial classification as a principle.

U.S. v. Carolene Products (Footnote 4) Justice Stone said that if a law, on its face, appears to abridge the constitutional rights of a discrete and insular minority, it should be subject to strict scrutiny To determine if a statute passes the test, a court considers whether The government has a compelling interest in creating the law Whether the statute is "narrowly tailored" to meet the government's objectives

AFFIRMATIVE ACTION

Regents of California v. Bakke Facts: Allan Bakke, a white male, applied to UCLA Davis Medical School and was rejected twice. The school had two admissions tracks- general and special (minorities) admissions. His GPA and MCAT were much higher than the minorities numbers. UCLA argued that this system of admission was necessary to ensure a diverse class that enriched the medical school, to undo discrimination that minorities have historically faced. Bakke argued that this set up a racial quota system, and that he was rejected on the basis of race.

Issue: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? Holding: How do we know that minorities will practice in a minority neighborhood? The medical school can take race into account but cannot set up quotas because diversity in the school is a compelling interest. If you have quotas, you treat individuals as a class. What is a minority?

Grutter v. Bollinger Facts: Barbara Grutter, a white female applied to the University of Michigan graduate school and was rejected. The law school had a critical mass, which was similar to a racial quota. Issue: Was she discriminated against? Holding: The schools use of a critical mass passed the strict scrutiny test, and it had a holistic admissions process, therefore she was not discriminated against. Dissent (Rehnquist): Why is it that different minorities have different critical masses? Sounds like a quota. Dissent (Thomas): The Constitution is colorblind; all classifications proceed under the idea that blacks are inferior. If the school wants to admit students of all races, why doesnt Michigan lower its admissions standards? Why should Michigan have an elite public law school?

Gratz v. Bollinger Facts: Gratz and Hamacher applied to the University of Michigan Grad School and were rejected. The University had a policy that gives minorities more points in the admissions process. Issue: Did the policy violate the Equal Protection Clause or Title VI of the Civil Rights Act? Holding: The policy violated the Equal Protection Clause because it was not narrowly tailored. Rehnquist wrote, "because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause."

Griggs v. Duke Power Co. Facts: Duke Power discriminated against black employees. Hired on the basis of two exams and having a high school diploma. Griggs, a black man was denied employment. Overwhelmingly, whites got better jobs. He argued that Duke violated the Civil Rights Act. Issue: Did Duke Power Company's intradepartmental transfer policy, requiring a high school education and the achievement of minimum scores on two separate aptitude tests, violate Title VII of the 1964 Civil Rights Act? Holding: If the test itself is shown to have a disparate impactmeaning that different groups perform differently on it even without intentional discrimination by the employer then the test itself must have a direct business necessity in order for an employer to administer it. Need to look at a policys EFFECT.

Washington v. Davis Facts: Two blacks were rejected by the Washington D.C. Police Department. Blacks were given a civil service exam. Minorities typically did not do well on this exam. Issue: Did this violate the Civil Rights Act? What does racial discrimination mean? Holding: In addition to judging policy on effect we have to look at its intent. The Court held that the procedures and written personnel test did not constitute racial discrimination under the Equal Protection Clause. The Court reasoned that the D.C. Police Department's procedures did not have discriminatory intent and were racially neutral measures of employment qualification.

United Steelworkers v. Weber Facts: Weber was a white worker in a steel factory. The company had an affirmative action based training program with a dual track system of seniority. Weber was in between black and white seniority. Holding: This dual track system was constitutional because its general purpose was to bring blacks into the mainstream.

Ricci v. Destefano Facts: Firemen in CT white and Hispanic. Only 1 applicant was a minority that passed those tests. CT wanted to throw out the results of the tests. Holding: The test cannot be thrown out, the white applicants have to be hired.

STATE ACTION Moose Lodge v. Irvis Facts: Men have beer, watch football- non profit organization. Moose Lodge was open to whites only. White man brings Irvis, a black man to a white only lodge. Issue: Can Irvis be excluded on the basis of race? Holding: The government has no role in the moose lodge, since it is a private decision. Dissent: Could the moose lodge operate without the government? No, because it relies on the government for a liquor licensee, police department, taxes, etc.

Instrumentality theory- A private organization may be an instrument of the state, so the private action will be converted to state action. Color of law theory- Government official who breaks the law, the state has commanded him to do something and he disobeys the state.

Smith v. Allwright: INSTRUMENTALITY APPROACH Facts: Involved all white primary in Texas after Jim Crow laws were repealed. Private clubs decided candidates for the States general elections in an all white primary, and excluded blacks from participation. Claimed Issue: Did all white primaries constitute state action even though private organizations, and not states, were discriminating against blacks? Holding: Primaries were integral to political process since they affected state elections. Therefore, it is an instrument of the state though it may appear to be private and violates the equal protection clause.

Screws v. US- COLOR OF LAW Facts: Concerns the sheriff named screws. He was a sheriff in baker county Georgia. He had a grudge against a black man named hall. Sheriff and his deputies arrested haul and beat him to death. Federal government wanted to charge the sheriff in federal court. They charged him by violating civil rights act by denying haul to civil rights. Instead they said he was executed by the sheriff and his deputies. Holding: Supreme Court said the sheriff acted under the color of law. It's true the law did not give the authority to beat haul to death. But the law did make the sheriff the sheriff. Authority of the office. When he and the deputies came to detain haul, he went with him because he was the sheriff. The force of the state was behind the actions of the sheriff. Even though he violated the law. We can still say his action was state action. He used authority of the state to achieve his unlawful purpose.

US v. Price Facts: Three men (civil rights workers) were murdered by a mix of government officials and the Ku Klux Klans members. Issue: Do the private individuals come under the color of the law theory? Holding: Yes, because the individuals acted in conjunction with the government officials. The civil rights workers stopped because they saw law enforcement, they wouldnt have stopped otherwise.

Shelley v. Kraemar Facts: Restrictive covenants in the North- if you buy a house, you can choose who you sell the house to (neighborhood agreement). Holding: You can have a racial restrictive covenant but the court cant enforce it. If the court enforced it, it would be state action.

Mulkey v. Reitman Facts: California proposition about- racial discrimination in public housing. Referendum- you can discriminate on basis of race for public housing.

Issue: Did the referendum constitute state action? Holding: Yes, because ordinary voters would make the referendum into law, and they would constitute the state, and that would be state action.