441 Constitutional Law I

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I. Methods of Constitutional Interpretation:
A. Textual Analysis
1. Language – what does the language say
2. Original Intent / Original Meaning
Original Intent – what was the intent of the framers?

For the Body of the Constitution and for the first 10 Amendments what was the intent
of the framers of Constitution). For Amendments (13, 14, 15) what was the intent of
the framers of these particular Amendments?
Original Intent, however, is difficult to discern, b/c: 1. Records are bad; 2. There is
conflicting intent in any legislative body when you are trying to pass something.
Therefore this is NOT A GREAT SOURCE FOR ORIGINAL INTERPRETATION.
Original Meaning (the current trend in Originalism) – Looks to the original meaning of
the terms and phrases at the time of the framing.
Therefore, for the first 10 Amends and body of the Const what was the original
meaning of the textual terms and phrases. For example what did the word Commerce
mean at the time of the framing, and we mean THE GENERAL meaning. 1. Use the
dictionary definition at the time of the framing for say the words used in the body of
the Constitution. Or, what did ‘equal protection’ or ‘due process’ mean at the time of
the framing of the 14th Amendment in a dictionary.
3. Where did the clause occur in the document?

Ex. Suspension Clause (suspension of habeus corpus) appears in Art I, under
Congressional powers; and so when Lincoln tries to expend habeus corpus (his
powers are under Art II), at least one justice of the court says NO, that is an article II
power.
4. Look to what is around the phrase you are examining.

Ex. when we look at the 14th, look at the 13th and 15th. There is a “Unity of Purpose”
of these Amendments.
5. Look at other provisions within the text of the document.

Ex. When looking at the 10th to see if Congress’ powers infringe on the police powers
of the States, focus on the 10th Amend to see how Congress relates to the States in
Commerce regulation. Over time, the Court has given different substantive meaning
to the 10th. At times the 10th is said to be a truism, and have no substantive content
and other times it said to have substance and tell us about Fed and State relationships,
and that there can therefore be a violation of the 10th.
B. Analysis Based Upon the Theory and Structure of Government
1. The Nature of a Government in general. What does a sovereign do?

A – those things that are enumerated in a Constitution
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B – those things that are a reasonable means to an end. Ex. Think of McCulloch, the
national bank case; the bank is not mentioned in the Const, but it is a reasonable means to
the taxing power and the spending power and the power to raise and support armies, as
well as others.
2. Nature of a Federation of States (such as the Right to Travel as a POI of the 14th. *NOTE
WHENEVER you talk about the 4th Amend it is PAI – privileges and immunities, not or*
A citizen of the US has to travel across many states to reach the Federal Gov capital in
the Saenz v. Roe Case (1999 case concerning State welfare rights). This right derives
from the right vested from citizenship in the collective states, ie the Nation.
C. Prudential and Consequentialist Analysis
1. The bad and good consequences that would flow from the decision of the Court
2. Think about the bad and good consequences that would flow from a particular branch
making the decision (ie Should the Leg, Judiciary, and Executive make the decision?
Judicial say over Congress or the Executive). Great example during war time is the power
of the Executive to act on threats upon the country. The Executive is uniquely placed to
do this b/c it is not a large legislative body like Congress or the Court, which would have
to get a whole session together to get a meeting of the minds. The Executive can act
quickly.
Other examples: Marbury v. Madison (Judiciary should be the decision maker) or the
Prize Cases (the Executive should be the decision maker) or Wickard (Congress should be
the decision maker)
D. Historical Analysis
1. Look at the purpose of the clause; what was it designed to achieve?

Look at the historical context of say the Contract Clause. Its historical purpose, as it was
enacted for a particular purpose, can give light to its modern interpretation.
2. Original Intent of the Clause in the spirit of Original Intent.
3. Look at the historical context. What was the historical context around the meaning of the
Contract Clause, and why was it enacted in the first place?
4. The Historical Practice prior to the adoption. Think about the Suspension Clause and the
Writ of Habeus Corpus. The Court in interpreting the Suspension Clause in the
Constitution will look to the practice prior to the existence of the Constitution with regard
to its meaning to determine the contemporary meaning of the Suspension Clause should
be.
E. Precedent and Practice
Look at:
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1. Supreme Court Decisions and the practice of Stare Decisis – we honor them and give them
deference
2. State Court Decisions in interpreting the contemporary meaning of the Constitution.
States may have adopted practices that the Supreme Court can learn from.
3. What is the historical practice of the Executive or Legislature? What have these braches been
doing as a matter of practice? Or how has the Executive or Legislature interpreted the issue
themselves?
4. Look at PAST PRACTICES IN GENERAL IN SOCIETY (ie the way things have been done)
II. The National Bank Debates:
KEY CONCEPTS:
The National Bank Debate: 2 Issues:

1. Congressional Authority to charter a bank
2. States Power to tax that bank
Federalism Principles:
1. Federalism Principles refer to the relation between fed gov and the states
2. The fed gov is different from the state govs in many important ways, but in no more
important way, the fed gov is a gov of LIMITED enumerated powers ( Art I Sec 8
being the enumerated powers Art I Sec 9 being limitations). Everything that is not
reserved by congress is given to the States (10th Amend)
State Govs in contrast are instead Govs of general powers, general police powers.
There are limits on State Govs too, and they are listed in the first 10 Amendments, in
the 13, 14, and 15 Amends, and Art I Sec 10 to the Constitution.
3. The Federal Gov is supreme under the Supremacy Clause from Art VI Paragraph 2
4. What are the constituent components of the Federal Gov. The debate is:
On one side, the components are the States themselves; States created the Fed Gov so
States are Supreme (this is the anti-federalist Madison / Jefferson argument, and it is
reflected in the VA and Kentucky resolutions in pgs 52-53 and 91-93 of Text ***
Arguments on this side:

-Liberty depends on a Gov by small political units subject to close citizen participation and
control, b/c the Constitution by contrast formed a Gov having vastly greater powers than the
Confederation, and one with authority over large and expanding territory.
-The States, each being sovereign and independent, formed and sanctioned the creation of the
Constitution, and thus they each have a right to judge its infractions.
-(Textual) ‘Necessary’ was defined as ‘needful’ or ‘indispensably requisite’, and thus since
difficulties may arise in construing the language, each State claims a right to understand it
-Stability and authority is given to the Constitution b/c it rests on the solid foundation that the
States in their sovereign capacities formed the Constitution.
Know why this means that the States are supreme to the Fed Gov. BUT know that the
Court does not reach this decision, and finds that the Peoples’ relationship to the Federal
Gov is unmediated through the States.
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On the other side of the debate is that the Citizens of the US are the constituent parts of
the Federal Gov NOT the States. As citizens we have this unmediated relationship to
the Federal Gov; it is not mediated through the States, b/c the Citizens themselves are
the constituent parts. ‘We the People’ in the Preamble to the Const. The people have
a right to form government.
Sources of Congressional Authority:

Congress gets its authority from authority in Art I Sec 8, sets up the limited enumerated
powers – including the Necessary and Proper Clause (its sweep and use as seen under
McCulloch), Art I Sec 9 the limitations on Fed Congressional Powers as well as the Bill
of Rights (the first 10 Amendments). Particularly, the 9th says that there may be other
powers not reserved, and the 10th finds that anything not given to fed is to states.
Separation of Powers:
Art I
Congress – power to make laws
Art II
Executive – power to enforce and execute laws
Art III
Judiciary – the power to resolve disputes under the law and treaties (AND THE POWER
TO INTERPRET THE LAWS – giving rise to the idea of Judicial Review)
A. The Arguments:
Bank Arguments:
1. Madison (anti federal bank)

1. (Historical) The power to create the bank was considered by the framers (Madison was
at the framing!) and rejected.
2. (Nature of Government) The fed gov is a gov of limited enumerated powers; and the
fed bank is not one of them, and therefore there is no power to create one.
3. (Textual) There is no textual support for this in the constitution to support the charter
of a bank. Even if we look to the taxing and borrowing powers, the Necessary and
Proper Clause does not get us to allow the creation of the federal bank.
4. (Precedent) The former national bank was chartered out of NECESSITY and that there
is no necessity here.
2. Attorney Gen Randolph (anti-bank)

1. (Prudential Argument) – If we allow Congress the power to charter the bank, we allow
congress the power to do anything as the means to the ends to a power in the
Constitution. Slippery Slope type of argument.
2. (Textual) Same as Madison’s.
3. Jefferson (anti-bank)
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Jefferson has the same arguments as Randolph

(Prudential) and (Textual) arguments are the same as Randolph
He does add under the (Textual) argument that the Necessary and Proper Clause is a
constrained view as compared to Madison. It does not mean what IS merely Convenient,
it means what IS Necessary and Proper. And so Jefferson is saying that the Necessary
and Proper Clause requires a very close connection between means and ends, if not a
perfect overlap.
4. Hamilton (pro-bank)
1. (Nature of Gov)
a. the charter of the bank is an inherent power of a sovereign
b. A bank is a reasonable means to the ends articulated in the constitution (such as all the
powers in Art I Sec 8; borrow, tax, regulate trade, coin money)
c. Yes, even though there are State banks that does not mean that Congress lacks the
power to create a Federal bank. A fed bank is not unconstitutional b/c it doesn’t
matter that the states are chartering banks.
2. (Textual) Means ends analysis argument.

There are articulated powers in the Constitution (tax, borrow, regulate trade, coin money,
the Necessary and Proper Clause) and the National Bank is a reasonable means to those
ends as a matter of textual interpretation.
Is the distance between the means and ends covered by the necessary and proper clause?
The Court finds that YES it does span the gap.
5. Jackson (anti-bank, in vetoing 1832 extension)

1. (Precedential) – The fact that we have been doing something for some time does not
matter if the ppl have not been acquiescing to doing that thing.
2. (Nature of Gov) – each branch should be responsible itself for its own constitutional
interpretation and I Jackson, as a matter of my own constitutional responsibility say
that the bank is unconstitutional and veto it. Each branch of gov should be
responsible for its own minds
3. (Textual) – Means Ends. It is not a close enough means to an articulated end in the
Constitution
OUTCOME – Congress approved the First Fed Bank in 1791, and its 20yr charter
expired in 1811. The Second Bank was chartered in 1816, which lost its charter in
1836, and ceased operations in 1841.
B. McCulloch v. Maryland (1819):
1. First Issue: Congressional Authority to Incorporate Bank
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a. Analysis
1. Fed Gov is created by the ppl and not states
(The PEOPLE have the right to tax, and not simply the states. The reasoning here is that if
we allowed the state A people to tax the Fed Gov, that would mean the people are
exercising power over the people say in state B.)
2. By the Necessary and Proper Clause, the bank is a reasonable means to the ends of the
taxing power, the power to borrow, the power to raise and support armies, to conduct war
etc. It is a very loose connection between means and ends that we get from this Court in
McCulloch. *This McCulloch loose means ends language as applied to the 14th translates
into a high degree of deference on the part of the judiciary to the legislature in enacting
means to articulated ends in the Constitution.* In McCulloch, the Court uses the
Necessary and Proper Clause with the powers in Art I Sec 8 to say that when you put
them together we get that the national bank is a reasonable means to these ends.
What do we get?
The court will defer to the legislature on the necessary and proper clause
b. Implied Powers
Implied Powers – those powers, like the national bank, that are means to an articulated
power in the constitution. Contrast with Inherent powers.
(Note that this is what was going on in McCulloch and in the Civil Rights Legislation and
Cases)
Inherent Powers – extra constitutional powers that exist just by virtue of a government
being sovereign. It may be a means to the ends in the Constitution or it may not be; and
thus these powers need not be connected to text in the Constitution.
2. Second Issue: State Power to Tax the Bank
1. Federal Supremacy - (Textual and Nature of Gov Arguments)

The fed gov law is supreme to the state law, and that when Maryland seeks to tax the
federal bank, it could destroy the bank – thus the pwr to tax is the pwr to destroy and
Marshall states this as absolute, and thus it is a categorical meaning such that it
doesn’t matter whether the tax would be large or small.
However, we can envision a small tax would not destroy, so can a State ever tax the
Federal Gov or its instrumentalities? YES, the States may in CERTAIN
circumstances. Ex. States can tax art III Judges income tax under state law, so long as
that they are not doing it discriminately as compare to other State Judges.
Intergovernmental immunity this is the concept here.
III. Early Article III Cases:
KEY CONCEPTS:
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Early Art III Cases -
Judicial Review:
Judicial Review – The Court gets to decide whether acts of Congress are constitutional.
Where does such power come from? It comes from Art III powers to decide cases under
the federal Constitution and treaties of the land.
We must interpret the Constitution and laws of the US, and that on occasion, a law runs
afoul to the Constitution, that is judicial review.
The court implies that it gets to interpret the laws and treaties of the US – Marshall would
say that it is a natural consequence of the Court’s power to hear cases under Art III.
Congressional Authority:
1. Within the Art III court world, Congress gets to establish inferior courts under Art III.
Only the Supreme Court is mentioned explicitly. Under Art III, Congress has the power
to create and abolish lower federal courts.
2. Congress has authority under Art III Sec 2 to get to make exceptions and regulations to
the jurisdictions of the courts of Art III, BUT there are limits, as we see in Marbury v.
Madison.
A. Stuart v. Laird (1803):
This Case illustrates that Congress gets to create lower federal courts and destroy them.
It involved the judiciary act of 1801, in the wake of the election of 1800 where the
Federalists led by Adams were kicked out of office, Jefferson and the Anti-Federalists
were coming in, and the Federalists on their way out the door created the Federal Circuit
Courts for the first time. Previously Supreme Court judges had been riding circuit, to act
as the intermediary appellate courts. Now the Federalists created intermediate appellate
courts, the circuit courts, and of course, they stacked them with Federalists. When the
Anti-Federalists came into power, they enacted the Judiciary act of 1802, doing away
with the intermediary appellate courts, destroying them, and leaving all those judges out
of a job.
The issue is the Constitutionality of the Judiciary act of 1802, which did away with the
intermediary appellate courts and went back to the practice of the Supreme Court judges
riding circuit.
The Supreme Court held that the act of 1802 was fully Constitutional, as Congress has
the power to create and destroy lower federal courts as it will.
If a Congress tried to do away with the Supreme Court, Constitutional or no? Of course
not, b/c Art III specifically lists the Supreme Courts authority to exist, and only lower
federal courts may be destroyed.
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B. Marbury v. Madison (1803):
This Case goes to the issue of the jurisdictions of the Federal Court. Adams, the
Federalist President is on his way out, and as part of the ‘Midnight Judges’ appoints
Marbury, a Federalist, as the Justice of the Peace for the Federal District of Colombia.
This was part of the broader Federalist plan to stack the court with Federalists to leave a
lasting impact on the judiciary. Marshall, a Federalist, who was Adams’ Sec of State,
and who was also busy as Supreme Court Justice did not deliver Marbury’s commission
to him, so Adams approved it, but Marshall did not deliver it. Then Jefferson comes into
office with Madison as his Sec of State, and Jefferson instructs Madison not to deliver
any of the judge appointment commissions, and he does not deliver them. Marbury files
an Original Claim for Mandamus in the US Supreme Court, it is NOT an appellate claim,
but one originally filed in the US Supreme Court, and he files this pursuant to the
Judiciary Act of 1789 (Sec 13), which grants the Supreme Court Original Jurisdiction
over mandamus claims.
The 2 main Issues in the case are:

1. Did Congress exceed its authority in creating this mandamus jurisdiction under Sec 13?
2. Judicial Review Issue
1. Mandamus and Congressional Authority

1. Congress cannot expand original jurisdiction of the Sup Court (the original jurisdiction
is articulated in Art III of the Constitution, and Congress does not have authority to
expand that)
2. The Court says that mandamus under Sec 13 of the Judiciary Act of 1789 LOOKs like
Congress is expanding the Supreme Courts’ original jurisdiction,
3. And therefore Sec 13 is unconstitutional, and Congress exceeded its power in enacting it
4. Therefore, NO jurisdiction for Marbury in this case.
2. Sources of Power of Judicial Review

Remember the move by Marshall here, he says that Marbury, another Federalist, his
claim goes away, but in saying that the Judiciary Act of 1789 is unconstitutional and
appearing to be “punting to Congress”, he ingeniously establishes the power of Judicial
Review over Congress’ legislation, and thus the power of the Supreme Court to declare
acts of Congress unconstitutional. Thus while there may have been short term losses for
Marshall, there was a HUGE long term gain for Art III Courts and for Marshall.
Sources of Judicial Review, where does this idea come from? Marshall gives 2 reasons
from Marbury v. Madison:
2 Reasons why the Supreme Court has the ability to decide disputes under the Constitution
1. The Supreme Court has the power to hear disputes under the Constitution, laws, and
treaties, and deciding disputes means that the judiciary must interpret these sources, and
that is where the principle of judicial review comes from.
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2. The oath of office – justices have taken an oath to uphold the Constitution.
Other things going on at the time that would support judicial review:
-Federalist Papers (#78 written by Hamilton supports judicial review)
-Some precedent and practice in the State Courts supported the concept of Judicial Review
Therefore, the idea of Judicial Review did not come out of thin air, but Marbury v.
Madison established the principle for the Federal Courts.
Judicial Review is a Counter-Majoritarian force in our society, Bickel wrote GO OVER

=> Judicial Review – Bickel Problem (9 justices get to decide and NOT the public)
Understand these Arguments and the Responses to these Arguments. pg 127-136 of Text.
The Problem – Bickel believed judicial review was control over an elected majority (Congress)
or an elected Executive by an unrepresented minority (judges).
Arguments against Judicial Review:

● Textual Argument – It is not specifically mentioned in the Constitution, so it should not
have the power
● The Counter-Majoritarian Argument – By weakening Congress’ power, and giving the
judiciary the power to review, it takes away Congress’ power as the representing body of
the people desire.
● Judiciary Infringing on Congress’ power of review.
● The Historical Argument – Judicial Review has not been done before.
● Argument that the Legislature should be the one to interpret its own Legislative intent,
and thus review is better suited for Congress.
● The Framer’s Argument – do what the framer’s wanted – NO WAY, too hard to
discern what even one thought let alone the whole body of framers
INSTEAD WE SHOULD LOOK AT THE MEANING OF THE TERMS AT THE TIME
WHEN THE FRAMERS CREATED THE CONSTITUTION
●The life terms of judges make them out of touch with modern populace when they are
long in office
Arguments for Judicial Review:

●The long time consequences are not thought out at the time when legislation is created,
and so a judiciary can take an arms length view to change outdated law
(Nature of Government)
●Judicial Review can better protect the minority (opposite to the counter-majoritarian
argument)
●Response to Bickle’s Problem – so much of government is against the majority rule (ie
modern example is the electoral college (Bush-Gore election), Senate can block
legislation with one vote over 2/5 of the senate, and 2/3 senate must agree to a treaty, and
2/3 of each house plus ¾ of the states must agree to a Const amendment)
●Necessary for reviewing State Ct decisions for uniformity of decisions throughout the US
●Courts have capacity for dealing with matters of principle that legislatures and executives do
not possess – they also deal with the law as it pertains to the flesh and blood of actual cases
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●By finding defects in the gov system, courts may actually contribute to the overall
representativeness of gov.
●We have judicial review b/c the courts can express our political / public values on ruling
on the constitutionality of the laws. => Important ? WHY SHOULD RICH JUDGES
GET TO DECIDE THIS, are they the best ppl suited for this?
The Judiciary is seen as a referee of the legislative process, helps promote efficiency as
they are better suited to make a rapid decision on matters as opposed to all of Congress.
●Even if Supreme Ct judges have a life tenure it doesn’t mean the judges are still not doing
good work, Marshall for example did some of his most significant decision writing late in his
career
IV. Early Property Rights, Police Powers, and Commerce Regulation Cases:
KEY CONCEPTS:
Early Police Powers:
Natural Law:
Natural Law is NOT human made law and it preexists and supercedes human made law,
it could be made by God, or a normative philosophical theory.
Human-Made Law:
Human Made Law is positive law, written law created by humans.
Police Power:
Police Power is the power to regulate in the interest of the health, safety and welfare, and
even morals of the citizens – STATES have this power, CONGRESS DOES NOT
[Except in the 4 general areas where the Congress is the primary sovereign and the State
is not - Congress DOES have police power over Military Bases, D.C. (Washington),
Native American Reservations, Lands and Territories of the Federal Government].
Federalism and Commercial Regulations:

1. Supremacy and
2. Preemption
Federal Laws can preempt State Laws – when Federal Gov has spoken, the States rules
cannot remain supreme, and Federal Law preempts the State Law.
A. Property Rights: Fletcher v. Peck (1810) and Calder v. Bull (1798):
1. Under Fletcher v. Peck the Court is eager to look at COMMON LAW principles to interpret
the Federal Constitution. In Flectcher, it was the Contract Clause, and the Supreme Court
interpreted the Contract Clause with reference to Common Law contract principles – nothing
truly amazing about this.
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2. In Calder v. Bull, it is the Natural Law vs. Human Law debate between Chase and Iradell. Be
WELL VERSED IN THE POINTS. Chase (natural made law proponent) v Iradell (positive
proponent) pg 149-150 DEBATE BETWEEN Chase v. Iradell
For Samuel Chase, the government has no authority to interfere with an individual's rights, and
"the general principles of law and reason" forbid the legislature from doing so.
Chase adopts the natural law (or justice) approach of a social contract, and believes that Property
Rights are natural rights.
Iredell adopts the positivist approach – he says that natural law is too subjective and fixed by no
standard, as one person’s natural law is different from everybody else’s natural law. He goes
with the very WORDS of the CONSTITUTION to take a positive law approach.
For James Iredell, "[t]he ideas of natural justice are regulated by no fixed standard: the ablest and
the purest men have differed upon the subject; and all that the Court could properly say, in such
an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an
act which, in the opinion of the judges, was inconsistent with the abstract principles of natural
justice."
Iredell is skeptical about both the existence of natural rights, and the ability of the judiciary to
assess accurately the content of those rights. A law passed by Congress within the scope of their
Constitutional power cannot be pronounced void by the Court simply because it is in their
judgment, contrary to the principles of natural justice.
The counter to Iradell’s position is that even positive, written law is just as subjective.
Thus, the punchline of the case is that Property rights may come from either Natural Rights or
from the text of the CONSTITUTION itself.
Throughout American constitutional history, there has been skepticism about natural rights. For
example, Justice Oliver Wendell Holmes was a complete natural rights skeptic. By the time of
the constitutional crisis of 1937, a majority of the Court was convinced that natural rights talk
was part of what came to be called "Lochnerizing," after the Lochner case. Thus, natural rights
arguments were largely dismissed after 1937. But the Court has never abandoned claims to find
unenumerated or implicit rights, as the "right to privacy" as developed in Griswold v.
Connecticut (1965) and Roe v. Wade (1973) make clear. The controversy over Roe re-kindled a
long existing skepticism about courts, and their ability to ascertain rights correctly. In the late
18th century, of course, more people were comfortable with the notion of natural rights than are
people in the early 21st century.
Why the 9th Amendment helped the first 8 move along, and was important for gaining political
support for the Bill of Rights in the ratification debates? The 9th Amend states that the rights
enumerated in the first 8 Amendments to the US Constitution are NOT exclusive, there may be
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others. BE ABLE TO EXPLAIN WHY THAT GAVE POLITICAL SUPPORT FOR THE
FIRST 8. Also, why anyone would have opposed the first 8 created in the first place?
Two main arguments: The bill of rights necessary side / The no bill of rights side - b/c
having one would imply that the gov has the powers to impinge on individual rights.
Why do we not need a Bill of Rights? (Federalists)

Unnecessary b/c the branches have only limited powers, and Dangerous b/c if we did need it,
that would imply that the branches have powers which are not enumerated
Why do we need a Bill of Rights? (Anti-Federalists)

If we didn’t have a Bill of Rights, there is a chance that some rights which are soo important
will not be protected. A Bill of Rights also summarizes who we are as a moral and political
people.
Jefferson’s arguments Bill of Rights -

The states can use the Bill of Rights to prevent the Fed from infringing on the rights of the
States, just as the Fed can use the Bill of Rights to protect the people from the States
infringing on their rights.
The first 8 amendments are the individual rights protection amendments (saying what
CONGRESS CAN MAKE NO LAWS to do…)
10th amend: if it is not relegated in the constitution then it is a power of the state. The Fed
cannot get a power
9th amend like a reverse merger: just b/c it is not mentioned in here does not mean that the
Fed does not have such power
Why does the 9th amend support a narrow reading of the Necessary and Proper Clause?
Congress may be limited in WAYS WE DON’T EVEN KNOW YET
There are things, ie not only rights of the ppl, but powers of the gov, that are NOT in the text
of the Constitution, and that is what the 9th is showing.
B. Commercial Regulation:
1. Gibbons v. Ogden (1824)

At issue is the NY grant of exclusive rights to some steamboats running up against the
congressional licensing of other steamboats on navigable waters.
The first question is a Commerce Clause ?.
a. Commerce Clause
1. Can congress regulate by licensing these boats, and does the congressional license
trump the NY license? YES, CONGRESS does have this power. The court used a
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(Textual Analysis) by looking at the Commerce Clause under Article I, Sec 8, and it said
that all America understands that commerce includes the navigable waterways – that is
the extent of the argument.
b. Supremacy Clause and Preemption

The second issue as between the Congressional licensing and the State grant of exclusive
use, which prevails.
2. Further congress regulation is supreme and preempts the state law. The Court rules
that the Federal Law preempts the State Law for 4 reasons:
1. Based on the (Nature of Government) and the relationship between the Federal
Government and the States.
2. The court distinguished commerce authority from the power to tax. Both Congress and
States have the power to tax BUT for different reasons – Each the Fed Gov and the States
lay taxes for different purposes, and thus neither government is truly exercising the power
of the other (pg 172); but NOT so for the commerce clause; Why - Congress has the
stated power by the Constitution to regulate commerce as between the States, and since
the Federal Gov is one of enumerated powers and is Supreme via the Supremacy Clause,
where Congress has such absolute whole power the States cannot exercise the very same
power if what is clearly at issue is regulating interstate commerce.
3. Art I Sec 10 has limitation on States authority
4. The need for uniformity across the States, as a reason for Congress to act pursuant
to its commerce clause authority. Compared to the Power of Taxation for which it
looks at Art I Sec 10, there is a need for uniformity across states.
c. (Dormant Commerce Clause)

3. The court raises the issue of the Dormant Commerce Clause.
Consider if Congress had not regulated does the State have the power to do what it did.
In the absence of Congressional regulation on the matter, can the State regulate interstate
commerce – the Dormant Commerce Clause – the mirror image of the commerce clause –
by virtue of Congress’ power under the Commerce Clause what can States not do.
2. Willson v. Black-Bird Creek Marsh Co. (1829)
State can create a dam on navigable waters in the absence of Congressional regulation, as
the Court upholds the State act, suggesting that there is NO Dormant Commerce Clause
barrier to States regulating interstate commerce in this way.
a. Dormant Commerce Clause

We will see later that there IS a Dormant Commerce Clause.
3. Mayor of the City of New York v. Miln (1837)
The Case concerned a NY law requiring a report of incoming immigrants to NY, and it is
challenged under the Dormant Commerce Clause, b/c there is no competing legislation
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directly by the Federal Gov. The Court upholds the NY law in Miln, which is not a huge
surprise in the wake of Wilson, but the Court adds something to our understanding of
State Police power.
IT adds the distinction between the Regulation of Police Power vs. the Regulation to
Regulate Interstate Commerce (we would then run into dormant commerce clause
problems)
States CANNOT regulate interstate commerce, BUT they can regulate pursuant to their
police powers – here it was for the welfare of the NY citizens to prevent the immigrants
from becoming chargeable as paupers.
SO we need to know what police power is.

The Court tells us that we look to: the place being regulated (navigable waterway or
purely in state dry land), person/people (do they act purely in state or do they cross state
lines?), and the purpose of the regulation, and the means adopted by the State legislature:
all these help to determine whether it is a police power or commerce power. Pg 193 to
195 in Text. Inspection laws, quarantine laws, health laws, laws regulating internal state
commerce, and those which those which respect turn-pike roads and ferries are examples.
a. Commerce Regulation v. Police Power
4. Cooley v. Board of Wardens (1851)

The Case concerned a PA law requiring the use of local PA pilots on its waterways. In
the absence of congressional regulation, again the issue concerned Dormant Commerce
Clause, and can the State do this or has it exceeded its powers and moved into the realm
of interstate commerce regulation.
The court upholds the PA law, not a big surprise in the wake of Willson and Miln. But
Cooley changes the ? slightly, it is no longer a question as to the distinction between
commerce vs. police power, but the ? is now is the State regulation in its nature National
and does it therefore admit only one uniform regulation across states – to decide this we
look to the history and practice of the regulated conduct, and we look to spillover effects
such as externalities between states to determine whether the issue is something that
requires a centralized uniform government to resolve or really can be resolved locally.
History and practice on this matter does not require one uniform regulation, and the Court
upholds the PA State regulation.
a. Dormant Commerce Clause
Pg 206 review – The PA v. Wheeling & Belmont Bridge Co.
VA built a bridge across the Ohio River in Wheeling (now in W. VA), and PA and VA
were competing over where a road would cross the Ohio River. The bridge was built by
the time the Supreme Court issued an injunction requiring the bridge raised in height.
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Congress later included a provision in a bill which passed that reversed the Court’s
decision. The Supreme Court ruled in the subsequent case on the matter that Congress
had such authority.
The Supreme Court does not have the last word on whether a state regulation affects
interstate commerce.
If a State exceeds its police power and regulates in interstate commerce in violation of the
Dormant Commerce Clause, Congress can go back and retroactively approve it. A state
act can be ruled as unconstitutional by the Supreme Court, but after the Court has ruled,
Congress can come back and say that it was OK for the State to do that. This makes
sense, b/c Congress is acting pursuant to its own Commerce Clause authorities, as it is
simply delegating some of its Commerce Clause authorities to the state.
V. Early Citizenship and Slavery Cases:
KEY CONCEPTS:
Citizenship:
1. Citizenship is an unmediated relationship with the Fed Gov that is unmediated through
the states
2. Our relationship with the Federal Gov gives certain rights as against the Fed Gov
3. The citizenship clause in the 14th is designed to give citizenship to all ppl born in or
naturalized in the US, most notably to give citizenship to former slaves.
Article IV Privileges and Immunities:

1. These are PAIs (rights) by virtue of citizenship in a State
2. Art IV PAIs have some substantive content to them
3. But the way Art IV PAIs operate is as an equality principle – a State may NOT treat
out of Staters different than Instaters
“Dual” Citizenship and Federalism:

Dual citizenship
Citizenship in a State by virtue of residence under the 14th
Citizenship of the Federal Gov by virtue of birth or naturalization under the 14th
A. The Native American Indian Cases:
Native American Indian Cases ask the question – where do their nations fit within our
national scheme?
1. Status of Indian Nations

In answering this ?, the Court looks to the (textual) argument based on the text of the
Commerce Clause to determine the status of Indian Nations in our Federal system; and
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the (nature of government) argument. On these two arguments, the Court concludes that
Native American Territories are like domestic dependent countries (baby countries within
a country).
2. Federalism and Supremacy Clause

Thus under Federalism and Supremacy considerations, it is the Fed Gov and not the
States that has the power to interact with these Native American Territories.
B. Article IV Privileges and Immunities:
1. Corfield v. Coryell (D. Pa. 1823)

This case articulates what are the substantive parts of the Art IV PAIs; NJ’s exclusive
right to take oysters from their coastline waters.
It explains what are the Art IV PAIs of state citizenship, what is the substantive content
to state PAIs; and we learn that they are fundamental rights that citizens have as against a
sovereign (state privileges and immunities – fundamental rights of citizens) pg 209
2. Crandall v. Nevada (1868)

Contrast versus Crandall v. Nevada, pg 210 – Nevada placed a tax on ppl leaving the
state in travel
The case tells us what the Fed POIs are under the 14th Amend (which we see, as in the
Slaughterhouse cases, are CONSIDERABLY more constrained)
Art IV PAIs as an equality principle does not extend all PAIs to all citizens (ie one state
doesn’t have to give the right to vote for out of staters)
The right to travel is a POI of federal citizenship – reached this conclusion based on a
(Nature of Government) argument - ppl must travel through states to reach the federal
government.
It is the Crandall v. Nevada PAIs that the Slaughterhouse Cases use to show that there are
POIs under the 14th, even though the 14th POIs were gutted by the Slaughterhouse Cases.
C. Slavery:
1. Groves v. Slaughter (1841)

The Supreme Court did not give a good resolution in this case, but the question is can States
prohibit the importation of slaves? The more interesting question is: Are Slaves an article of
interstate commerce, and if they are, Congress gets to regulate them and not the States?
NO (according to the Justice McLean opinion) they are not, and therefore states can regulate
them – certain policy implications flow from this (know the terms of the debate and what flows).
● Congressional exclusivity, as suggested in Gibbons cast doubt on state law regulating the slave trade
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● Slaves are designated with the quality of persons in the Constitution

● Slavery is local in nature in terms of the transfers and sales, and thus the States have this power
● States have right to protect themselves against the intrusion of slave dealers and the dangers of
a slave population.
● The danger here involves the prosperity of the State and its power to guard against it rests upon the
law of self-preservation; the State’s right to exercise this power is deeper than the Constitution
=> If slaves are not property, contracts made between states with regard to slaves cannot be
regulated by the federal government under interstate commerce. Power is given to the states, and
thus this means state law supremacy with regard to slaves in contracts over federal law.
Other justices (Justice Baldwin) says YES, and that the Federal Gov can regulate them – certain
policy implications flow from this (know the terms of the debate and what flows).
● The sole purpose of the provision in the Miss Const is to prevent slaves from being the
subjects of interstate commerce, b/c it was a slave state, and likely wanted to protect its own
trade by denying other states from importing slaves for sale in Miss.
● This is not an exercise of police power designed to protect the health and welfare of the Miss citizens
● As property, owners property rights of slaves are protected by violations of Congress by the 5th A.
● The PAIs of Art IV secure to citizens of all the states the PAIs of any other state, and thus just
as slave trading is permitted between citizens of Miss, it is protected between citizens of Miss
and other States. – Thus, no State may control such traffic as long as it may be carried on by its
own citizens within its own limits
● Slaves are property in every constitutional sense and for every purpose, whether as subjects of
taxation, as the basis for representation, as articles of commerce, or as fugitives from service.
=> If slaves are property, contracts made between states with regard to slaves can be regulated
by the federal government under interstate commerce.
2. Prigg v. Pennsylvania (1842)
This is principally a federalism case that deals with the Fed Fugitive Slave Act running up
against PA’s prohibition on self help when a slave owner comes into PA to try to retrieve their
fugitive slave.
The Court uses a 3 step analysis:

1. The fugitive slave clause in the Constitution in Art IV, Sec 2, Para 3, is a self executing clause,
and it stands on its own – it doesn’t need other congressional legislative enactment to enforce it
2. Congress nevertheless enacted the Fugitive Slave Act pursuant to the Fugitive Slave Clause
because the Fugitive Slave Clause alone was not doing what it needed to do to protect the
interests of slave owners. Why? Because states were doing what PA was doing – enacting anti-
self help laws, and so the Court rules that the Fugitive Slave Act was necessary and proper under
the Fugitive Slave Clause.
3. The Congressional Act, the Fugitive Slave Act preempts PA’s anti-self help law enacted
pursuant to PA’s police power, but nevertheless preempted by Federal legislation to the contrary.
REVIEW THIS CASE FOR ARGUMENTS ON FEDERALISM PRINCIPLES
3. Dred Scott v. Sandford (1857)
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Pg 229 The Case concerns a slave suing for his freedom and the freedom of his family. The
defendant is defending on jurisdictional grounds, and says that the Court has no jurisdiction
because the PL is not a citizen of the US, and therefore cannot have the POIs of Federal
citizenship – one of which is the privilege to sue in Federal Court. Therefore the Federal Court
lacks jurisdiction.
1. States CANNOT grant federal citizenship – and so when Dred Scott and his family move into
a free state, any claim of federal citizenship just by virtue of moving into the free state, even if
the free state were to try to grant federal citizenship it cannot do so.
2. Slaves themselves are not federal citizens and they are property
The mode of analysis the Court uses for 2. is that it looks at English law, colonial law, state law,
the text of Constitution, legislative history of the Fugitive Slave Act, the Declaration of
Independence, and Congressional acts in addition to the Fugitive Slave Act to conclude that
slaves are not citizens but property.
Contrast these pts with Frederick Douglass’s speech that the text of the Constitution supports an
anti-slavery Constitution (HIGHLY RECOMMEND THAT WE GO BACK AND REVIEW to
study for modes of analysis)
1. Citizenship Holding:
a. Indians distinguished
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b. People = citizens under the Constitution

c. States cannot control US citizenship
(so fact that Dred was free elsewhere no matter)
d. Congress has exclusive power of naturalization
e. Originalism
Originalism in Full i. Discusses historical intent of Articles of Confederation
ii. Discusses pre-colonial British slavery /Imperialism
iii. Discusses Colonial legislation
iv. Discusses Dec. of Ind.
1. Framer’s Actions v. Framer’s Principles
v. Discusses Preamble: We the “people” – not we the
“citizens”
vi. Discusses that Constitutional text singles out blacks
1. Importation Clause
BUT 2. Fugitive Laborers Clause Art 4, Sec 2
Examples of Anti-Slavery vii. Discusses to find otherwise would be inconsistent w/ state
Laws as Proof
Anti-Black statutes
Examples of 1. Anti-miscegenation laws/anti-slavery clear in
differentiation South
2. Naturalization Law – to “alien’s being free white persons”
3. Militia Law - “free able-bodied white male
citizens”
4. US Vessel Non-Employ Law – “except citizens or ppl of color”
viii. Dissent:
1. McLean:
Interpret for Noble Vision - not ignoble a. Interpret for Noble Vision - not
ignoble practice
b. Slavery is Anti-Natural Law
2. Curtis:
a. Blacks were citizen under Articles of
Fed
b. Natural born state citizenship = national citizenship
f.Missouri Compromise Property Holding

i. Black people born in the US, and their children cannot be
citizens – this should have been enough dismiss case – but
the court goes on to rule the MC was not valid.
ii. Held:
1. Congress is given authority under the Territory
Clause (Art. IV, §3)
2. Prohibiting Slavery in the territories is not valid
3. Due Process Clause…
ii. Frederick Douglass
1. Constitution is a “plain” document
Framers have
2.claim
no Argument against “originalism”: framers were only a single group of people, of a
on certain generation – they have no claim on ultimate meaning of the document
3. SEE MY HIGHLIGHTS, he debates each clause that could pertain to slaves
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VI. Article II Powers During War:
KEY CONCEPTS:
Secession Debates:
Pg 261-268 – These give important arguments about the relation between the
Federal Government and the States – THIS IS REALLY THE HEART OF THIS COURSE
President Buchanan Opposes Both Secession and War

● revolutionary resistance required a deliberate, palpable, and dangerous exercise of power not
granted in the Constitution.
● To justify secession, it would mean that the Fed Gov is a mere voluntary association of the
States, which may be dissolved by any one State as if it were a contracting party; no clause in the
Constitution supports such a contention.
● The Union was designed to be perpetual as evidenced by the nature and extent of the powers
granted by the Constitution to the Fed Gov.
● The Constitution does not confer upon Congress the power to coerce a State into submission
Judah Benjamin (Louisiana Senator) Defends Secession from Union

● One convention of the people duly assembled can repeal the acts of a former convention of the
people duly assembled.
● The history of the acts of our fathers revolution from England is a justification of a State
leaving the Union.
● There are certain political rights guarantied to the States of the Union by the Constitution that
are not susceptible to judicial decision, and thus the State itself is the judge of particular
infractions and of the mode of redress.
● Given the rights of the States under the Constitution, if the bargain between the states is broken
or not, the States have a revolutionary right
Jefferson Davis (President of Confederate States of America and former Miss. Senator)
● The people have the power to resume the authority delegated for the purposes of government
● The creation by sovereign states represented by such people then to form the Confederacy is
not a revolution, but more like a creation of a government.
President Lincoln (became President on March 4, 1861)

● The Union is perpetual and shall exist, as evidenced from its long history->in the Art of Assoc,
Dec of Ind, Art of Confed, and Constitution.
● The Constitution was meant to create ‘a more perfect union’, and if a State could destruct the
Union lawfully, it would not be a more perfect union – it contrasts the Constitution
Sources of Presidential War Powers:

1. Commander In Chief Power under Article II
2. The Take Care and Execute the laws power under Article II
3. Not in the Constitution, but the Court says that the President is bound to resist a
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foreign force – comes from the Prize Cases

4. The President has War Powers anytime Congress delegates War Powers to the President
*Note that later we learned that the President is on safest ground, and at the height
of his Constitutional powers when Congress has authorized the Act. Thus in the Prize
Cases it is so important for the Court that Congress retroactively approved everything
that Lincoln did while Congress was out of session.
1. The appropriate rules of the Executive vs. Congress vs. The Judiciary
2. Courts seem deferential, see the Prize Cases, but there are limits
Emergency Powers:
Emergency Powers are extra Constitutional powers that are not found in the Constitution. They
are truly powers that are beyond powers that are in the Constitution, and whether there is any
authority Constitutional or otherwise for the President to use them. Contrast that with the
Habeus Suspension Clause, which states that Habeus may be suspended in times of insurrection.
The Habeus Suspension Clause is clearly not extra Constitutional even if it is in the spirit of an
emergency power, it is not such a power in this sense b/c it is actually found in the Constitution.
A. Prize Cases (1863):

The Case concerns President Lincoln’s blockade on the southern ports before the start of the
Civil War. We see a very deferential Supreme Court.
1. The blockade speaks for itself. The fact that there is a blockade tells us that the blockade was
necessary => this circular reasoning shows how deferential the Court is to Lincoln.
2. We get an idea about what Political Question is about, and we see this later (at end of course)
in the Art III Powers section. Courts will defer on political issues, those issues that are better
suited to the elected accountable branches of government.
3. Congress authorized all of these acts afterward.
B. Ex parte Merryman (1861):

Pg 276, The Case was about a US citizen that was detained by military authorities in Baltimore,
Maryland (military tribunal). Lincoln unilaterally authorized the suspension of the Writ of
Habeas Corpus, under the Suspension Clause. The case came before Justice Taney, acting as a
Circuit Judge riding Circuit, so we don’t know if this is a Supreme Court Case or a Circuit Court
Case (there are good arguments on both sides), but the case tells us important things.
1. Suspension Clause
The Suspension Clause – who gets to suspend Habeus Corpus?
Taney says that Congress has the power and not the President. This is a (Textual) argument.
The question is where does the Suspension Clause appear in the Constitution? Taney says
correctly that it is in Article I and that therefore Congress gets to suspend and NOT the President.
2. Take Care Clause

The Take Care Clause (5th Amendment) - The Executive is limited in taking care that laws are
properly executed. That is the President’s job, not creating laws, not going around suspending
21
Habeus Corpus, the President role is to execute the laws pursuant to Legislative or even Judicial
mandates. That is the real Executive’s role.
Thus the Ex Parte Merryman Case gives us the sense of the constrained role of the Executive,
whereas in the Prize Cases, we were given a wide view of the Executive’s role.
C. Ex parte Milligan (1866):

Pg 278, This Case concerned again a Military tribunal, located in Indiana (But it was notable that
the IN civil courts had NOT shut down). Milligan, the defendant, claimed that the military
tribunal has violated Art II Sec 2 and his (7th Amend) rights for Trial by Jury. The Court said
that Milligan is right – there is no authority on the part of Congress OR the Executive to create
military tribunals when the civil courts are open.
VII. Early 14th Amendment:
KEY CONCEPTS:
Rights Protection Against States:

th
The 14 Amendment is REVOLUTIONARY – It provides individual rights protection as a
matter of Federal Constitutional law for citizens against their state.
“Dual” Citizenship:
Dual citizenship:
Citizenship in a State by virtue of residence under the 14th
Citizenship of the Federal Gov by virtue of birth or naturalization under the 14th
14th Amendment Privileges or Immunities:

1. These are POIs of Federal Citizenship
2. The Slaughterhouse Cases tell us that they are articulated in Crandall v. Nevada – so there is
some substantive content to them, but they are not nearly as broad as State PAIs under
Corfield v. Coryell.
3. The 14th POIs of Federal Citizenship are potentially very, very expansive and potentially even
include the rights in the first 8 Amendments, and therefore 14th Amend POIs would be an
obvious and good candidate for Incorporation, but the Slaughterhouse Cases tell us NO ->
They give a very constrained reading to 14th Amend POIs and we don’t see them again until
the Saenz v. Roe Case (the 1999 case about welfare rights and right to travel).
PAIs are the Fundamental Rights (Art IV PAIs by virtue of State Citizenship)
POIs (14th amendment, POIs by virtue of Fed Citizenship) include those listed on pg 325
(ie right to transact business, peaceably assemble, petition for redress of grievances,
writ of habeas corpus, use navigable waters)
Incorporation:
22
Know what it is, the different ideas about incorporation, and the different theories on
incorporation. At the end of the day, know that we have a selective incorporation jurisprudence
that incorporates the rights of the Bill of Rights one at a time, and asks if they are fundamental.
Incorporation is via the Due Process Clause of the 14th Amendment NOT the POI Clause within
the Amendment (which seems like the more obvious vehicle).
State Action Doctrine:

The 14th Amendment applies against the States by its own terms. The Civil Rights Cases tell us
so. There is a later case where we seem to get a majority of the Court that say that the 14th might
also apply to private discrimination, but the doctrine today is that it applies ONLY to State
Actors, and so there is a whole doctrine around what constitutes a state actor.
Compare that result for the 14th Amendment (and 15th) to the result in the 13th Amend, which
does not require a State Actor. By its own terms it says that neither slavery nor involuntary
servitude shall exist. Which means either public or private. This means that Congress seems to
have a little more leeway under the 13th Amend.
The Constitution in Territories:

The question here is what application does the Constitution have in US Territories. SEE Downes
v. Bidewll case, pg 386 as an EXCELLENT case to study modes of Constitutional Interpretation.
A. 14th Amendment Privileges or Immunities:
1. The Slaughterhouse Cases (1873)

Lousiana Slaughterhouse monopoly.
a. “Unity of Purpose”
In terms of involuntary servitude – the court looks to the unity of pupose behind all of the (13th
and 14th amendments) – which is to free the slaves
b. 14th Amendment P or I
1. They are very limited (Crandall v. Nevada)
2. 14th A doesn’t protect the rights here
3. the 14th POIs don’t protect the violations of a State against a citizen of that State
(Was it the intention of the Fed Gov to bring within the power of Congress the ENTIRE
Domain of civil rights heretofore belonging exclusively to the States. The court sees
that it would be turning Federalism on its head if it did this. Congress would then
have the powers to enact laws to protect individuals in a State against civil rights
measures enacted by their own State.)
4. the POIs are not a vehicle for the rights of the first 8 amends to the Const
Thus, the case gives a constrained reading of the POIs of the 14th
c. Applied: U.S. v. Cruikshank (1875)
23
An armed white militia attacked freedmen who had gathered at the Colfax, Louisiana
courthouse. Although some of the African Americans were armed and defended themselves,
estimates were that 100-280 were killed, including 50 who had surrendered.
Some members of the white mob were indicted and charged under the Enforcement Act of 1870.
Among other provisions, the law made it a felony if two or more people conspired to deprive
anyone of his constitutional rights.
The Supreme Court ruled on a range of issues and found the indictment faulty. It overturned the
convictions of two defendants in the case. The Court did not incorporate the Bill of Rights to the
states and found that the 1st Amendment right to assembly "was not intended to limit the powers
of the State governments in respect to their own citizens"
The Cruikshank court held that the 14th Due Process and Equal Protection Clauses applied only
to state action, and not to actions of individuals.
d. Applied: Bradwell v. Illinois (1873)

See Class Notes – Woman lawyer and admittance to her State Bar, case.
• Women cannot contract so cannot represent clients
• State right to police granting of licenses trumps individual right to work (reiterates
Slaughterhouse limits of privileges and immunities)
• Concurrence by Slaughterhouse dissenters Field and Swayne – whatever right to
work exists as privilege/immunity of citizenship N/A to women
• ‘natural law’ of separate spheres, women’s ‘natural’ tendencies not suited to being
lawyers, etc.
2. Minor v. Happersett (1874)

The holding – citizenship does not necessarily imply the right to vote. Can a women citizen be
prevented from voting?
Citizenship does not imply voting rights: Modern example – minors cannot vote.
Thus the 14th amendment did not carve out voting rights.
Dichotomy between civil rights and citizen rights.
B. 14th Amendment Equal Protection:
What does Equality mean – it means equality as measured by what is available to a ‘white person’.
1. Strauder v. West Virginia (1880)

Exclusion of blacks from juries – runs afoul to the Equal Protection clause
• 2 arguments –
1. 14th Amend means law should be colorblind
2. 14th prohibits “Unfriendly legislation” (suggests “friendly” race classification ok)
• * W.Va. law discriminatory on its face*
24
2. Plessy v. Ferguson (1896)

Separate but Equal is OK for individuals riding on rail cars.
• “Separate but equal” ok, does not violate EP; segregation not per se sign of
inferiority;
• Cannot legislate away prejudice; law reflects people’s desire to self-segregate,
freedom of association as freedom from integration.
• Harlan dissent: law should be colorblind (but social inequality ok), people may
self-segregate but law may not require it w/out violating 13th ‘badges and
incidents” and 14th EP; state may not infringe freedom of association as freedom to
integrate.
WHAT IS THE DIFFERENCE BETWEEN THESE CASES (Strauder and Plessy):

In Plessy the law is Equal to both (both are excluded in going in the other’s train car)
In Strauder only a specific group (blacks) were denied admittance to the jury.
3. Giles v. Harris (1903)

Denial of right to vote of blacks in AL in 1903 – court says that this is OK
The statute under which the applicant brought the action, U.S. Rev. Stat. § 1979, did not extend
equitable jurisdiction to the applicant's action. In addition, the court found that equity could not
undertake to enforce a political right. The court held that, apart from damages to the individual,
the proper sources of relief from a political wrong, if done by the people of a state and the State
itself, were the legislative and political departments of the federal government. *14th not
concerned w/ political, only civil rights*
THEREFORE we learn that the 14th is NOT concerned with Equal Outcome
Treatment, it is concerned with the Equal Facial Treatment of the Law.
CONSTITUTIONALLY SPEAKING we care about the front end: Equal Treatment.
CONSTITUTIONALLY SPEAKING WE/THE COURTS cannot do anything about
SOCIETY’s ACTIONS/TREATMENT
Modern policy that aims for Equal Outcome and NOT Equal Treatment: Affirmative Action
C. State Action Doctrine:

A 14 Amend violation requires a state actor, but the 13th does not. Of course though, a narrow
th
reading is given to the 13th amend. Later on though, the badges and incidents of slavery were
read into the 13th amend.
1. The Civil Rights Cases (1883)

Does Congress (the legislature) have the ability to enact anti-discriminatory measures for places
of public amusements, the highways, and in Inns? No, the Civil Rights Act of 1875 is
unconstitutional; there is no state actor involved as required by the 14th.
2. U.S. v. Harris (1883) and Ex parte Yarbrough (1884)
25
Illustrate the effect of the civil right cases holdings. They are useful for giving how the court
interpreted the 13th and 14th amend after the civil war.
D. The Constitution in U.S. Territories: Downes v. Bidwell (1901):
VERY IMPORTANT CASE

VIII. Early Economic Rights and Economic Regulations (Chapter 2):
KEY CONCEPTS:
Substantive Due Process:

Giving a substantive meaning to the DP clause that sounds procedural. The DP clause is read as
having read as having a substantive meaning, and is in fact mostly substantive. It is used to do
the leg work of what the POI clause would have done if we didn’t have Slaughterhouse.
The application of constitutional due process is traditionally divided into the two categories of
Substantive Due Process and procedural due process. These categories are derived from a
distinction that is made between two types of law. Substantive Law creates, defines, and
regulates rights, whereas procedural law enforces those rights or seeks redress for their violation.
The Lochner Era:

Era best recognized by the Lochner case, the court uses substantive DP as regulating commerce
pursuant to… Uses rational basis review
Means-Ends Analysis:
Healthy bakers v. regulating the hours. How well does the mean serve the end; are they
rationally related to those ends
Interstate Commerce:
1. What does it mean? It means the channels of commerce
Distinction between the manufacture and the distribution and transportation
2. What is commerce?
Lottery tickets are commerce
A. Early Economic Rights: Lochner v. New York (1905):
1. Means-Ends Analysis
2. “Rational Basis” Review
3. Liberty to Contract
Right to K is a liberty interest under the 14th A, instead of looking to the K Clause.
4. Mr. Herbert Spencer’s Social Statics
26
Places the Lochner result into the economic meaning of the times. Laissez-Faire, and other theories.
B. Early Commerce Clause:
1. Champion v. Ames (1903)
a. What is “commerce”?
Lottery tickets are commerce. Going across state lines means commerce.
b. Regulation v. Prohibition
Dichotomy in the Champion v. Ames case; if the states can wholly prohibit than congress can
wholly prohibit under its commerce power.
2. Hammer v. Daggenhart (1918)

Child labor case; congress seeks to regulate it by looking at regulating through manufacturing
a. Manufacture v. Distribution
Direct Effects vs. Indirect Effect - Congress can regulate Direct Effects, but NOT Indirect Effects
From Wickard Case we do NOT use the dichotomy test anymore, and ONLY use the Effects
Test (the stream of commerce).
3. Alternative Sources of Congressional Regulation

Indep congressional authority that might be used to do what congress might do under the CC.
a. The Taxing Power

Can congress use its taxing powers to do what it cannot do directly? No, pg 449.
b. The General Welfare Power

The spending power – congress can leverage its spending power to exercise a power.
c. The Treaty Power

Migratory bird treaty – power interfered with the states’ own power to regulate migratory birds. But the
court found that the treaty power was promising and congress was allowed to regulate by this treaty. -
The Treaty Power Test, is this the type of thing that Congress usually makes a treaty on.
The Exam Itself
27
4 categories of ?s – in each category there are 3-4?s, and you will have a choice – we MUST answer 7
of 11. ISSUES should be obvious. (chose 2of3, 2of3, 2of3, 1of2) – do about 30min per ?
ex. standing, justicability, etc. will be basically not be tested. We have talked just a little bit about
standing and political question, so these can possibly be placed into the questions
The big issue should be obvious – but there are subsidiary issues – circle issues and write down the
legal issue that you think is applicable – use IRAC. ?s will be how would you advise congress or the
executive or how would you litigate this. Always apply both sides in your answers. MAKE sure you
reference HISTORICAL information; both cases and the doctrinal trends.
I. Modern Economic Regulation and Rights:
KEY CONCEPTS:
Decline of Judicial Intervention Against (or Increased Judicial Deference

Towards) Legislative Economic Regulation:
Restriction upon Congressional or State Authority.
When Congress or a State Legislature regulates on Economic Matters.

Exs. In Lochner (state regulating bakers’ hours), or in Lee Optical (State telling Optometrists
when they can fit lenses), and in Blaisdell (interference with mortgage agreements (Ks) in GD)
THE TEST TO USE IS RATIONAL BASIS REVIEW
Whenever Congress or a State is acting to regulate economic matters

1. Is it a violation of economic substantive due process?
2. Is it a violation of the Takings Clause?
3. Is it a violation of the Contracts Clause (it only applies against States by the Constitution)?
If Congress interferes with a K, you look to Due Process in the 5th Amend for protection
Rational Basis Review:

A means – ends analysis:
A relationship between the legislative goals and what the legislature is actually doing. The mean
is the actual legislation, and the end is what the legislature is trying to achieve with its actual
legislation.
Modern Rational Basis Review - means that the legislative mean must be rationally related to
ANY conceivable, legitimate government end.
POST 1937 (after the West Coast Hotel Case) and end of Lochner Era – there has been a much
lower level of review by the Court; or a much higher level of deference to the legislature when
the court is examining legislature on economic matters.
How has the Test itself changed:

Look at the difference between its application in Lochner (Ct that is very deferent – Ct willing to
make up ends) and in Lee Optical (Ct that has no deference)
28
A. Modern Contract Clause:

Art I Sec 10 for States, Due Process Clause of 5th for Federal
Home Building & Loan Ass’n v. Blaisdell (1934):

State Interfering with the relationship between mortgagee and mortgagor during Great
Depression. Gives us the modern contracts clause test.
The supreme court upheld the state legislative Mortgage Moratorium under the K Clause.
CURRENT CONTRACT CLAUSE TEST:

1. Private Contracts – we studied this in Blaisdell – If a state is interfering with a private K, it
violates the K Clause if it is:
a. A substantial impairment of the K
b. If state action is not a reasonable means to achieve a significant and legitimate public purpose
(more or less a rational basis review test for this part)
2. Interference with Public Contracts (State is a party) – When the state moves to interfere
with its own Ks, then the Court is likely to scrutinize that interference at a higher level.
The state action violates the K Clause unless it is reasonable and necessary to achieve a
significant and legitimate public purpose.
B. Modern Substantive Economic Due Process:
Williamson v. Lee Optical (1955):

For the State action look at Due Process in the 14th, for Congressional action look at Due Process
in the 5th
When can an optometrist fit lenses; they can only fit lenses that have a prescription -> the effect
is to put a lot of optometrists out of business.
This is exactly the type of economic regulation we are talking about for economic substantive
due process, contract clause, or taking violations.
RUN THROUGH EACH IN OUR MIND ON EXAM.
CURRENT RATIONAL BASIS TEST:

The means must be rationally related to any conceivable, legitimate government end –
the big deal here is that the State ‘might’ have been trying to do something, and that is ENOUGH
under the test for the Court.
C. Modern Takings Clause:
Private Property cannot be taken for public use without just compensation.
1. What does it mean to be taken?
There are 3 ways a state of gov can take private property

1. A gov can Physically Take private property in the spirit of eminent domain or if it
29
wants an easement or if it wants a de minimis easement for say a cable line

2. A Regulatory Taking. A gov can take property by regulating it. We see this with land
use and zoning regulations. To determine if it is a regulatory taking the Court looks at
the economic impact (severe or minor) of the regulation, the effect upon investment
expectations, and the character of the regulation. Ex. wetlands restriction on your
home private property.
3. A Conditional Taking. (We have seen this in spending power of Congress – conditional
spending) Ex. you can build a 3rd floor on your home IF you provide the town with a
6ft easement on your property. The test is that the condition of that type will not be a
taking if there is an essential nexus between the condition and the request for it.
2. What does public use mean?

The courts have interpreted this broadly to mean any economic development plan that is in the
broader public interest, and is not simply a transfer of land between two private citizens. Ex. as in
the Kilo vs. New London Case in state of CT. – homes were razed to put in a parking lot, a park, an
office building, a commercial area – here the Court interpreted public use very broadly.
3. What does just compensation mean?

The fair market economic value of the property at the time of the taking.
II. Congressional Authorities:
KEY CONCEPTS:
ANYTIME CONGRESS ACTS it MUST HAVE AUTHORITY FROM THE CONSTITUTION
Ebb and Flow of Authority:

Every authority, every constitutional provision has had an ebb and flow over time.
Sources of Authority:
See the checklist. Know that the Fed Gov is one of enumerated limited powers.
Necessary and Proper Clause:

NOT A STAND ALONE authority for Congress; it must act hand in hand with some other
authority that Congress has, like the commerce clause authority. Ex. the National Bank case.
Necessary and Proper authority gives Congress an ‘extra sweep of authority’.
“Let the end be legitimate, let it be within the scope of the Constitution, and all means that are
appropriate and plainly adopted to that end are necessary and proper” McCulloch
This Means – Ends Test analysis for Necessary and Proper SOUNDS LIKE the Rational Basis
Review Test -> in later cases like Katzenbach and the 13th, 14th, and 15th Cases we studied AT
THE HEIGHT OF COURT DEFERENCE under these amendments, we saw the court citing
Williamson v. Lee Optical, stating that the Necessary and Proper clause gives greater sweep.
A. Commerce Clause:
30
1. From Defined Limits (Review) . . . :

In different cases we studied, the Commerce Clause was defined by the Court in distinct,
discrete, precise ways:
Gibbons v. Ogden (1924):

Interstate commerce for purposes of the CC includes navigable waterways (channels of interstate
commerce).
Mayor v. Miln (1837):

The Court contrasted Commercial Regulation vs. Police Power (for which Congress does not
have authority but the States do have).
SO we need to know what police power is.

The Court tells us that we look to: the place being regulated (navigable waterway or
purely in state dry land), person/people (do they act purely in state or do they cross state
lines?), and the purpose of the regulation, and the means adopted by the State legislature:
all these help to determine whether it is a police power or commerce power. Pg 193 to
195 in Text. Inspection laws, quarantine laws, health laws, laws regulating internal state
commerce, and those which those which respect turn-pike roads and ferries are examples.
Cooley v. Board of Wardens (1851):

For CC authority, is the issue regulated in its nature, a National issue and cross state lines. Does
it call for only one uniform form of regulation nationwide.
Champion v. Ames (1903):

1. Commerce includes anything that has a recognized value in money, including lotto tickets,
where there is only a chance at value.
2. Congress can use its power to prohibit flatly specific things; to outlaw them.
Hammer v. Daggenhart (1918):

This case was overturned.
The issue was manufacture vs. distribution. Congress can regulate distribution but not the
manufacture. Thus, in this case, Congress could not regulate child labor; it is to attenuated from
interstate commerce.
OTHER AUTHORITIES can be used to achieve the EXACT same regulation powers as we just
have seen with the CC.
- For example the Treaty Power (this is a stand alone power mentioned in Article I) can be used
for Congress to regulate Child Labor. The treaty power for example was used by Congress in a
treaty with Canada to regulate in the migratory bird case (Missouri v. Holland).
- Congress cannot regulate under the Taxing Power (per Bailey v. Drexel Furniture Co.,
although this changes later); “Congress cannot do indirectly through taxing and regulation what
it can do directly through the Commerce Clause.” After Bailey the Court said taxing for revenue
was fine, but taxing primarily to regulate was not. Again this changes in later cases.
31
- Congress probably cannot regulate per US v. Butler using the Spending Power, but later
Spending Clause cases make it clear that Congress can regulate with its Spending Power
(conditional spending for example).
2. . . . To (Seemingly) No Limits Under the Commerce Clause. . .:
NLRB v. Jones & Laughlin Steel Corp. (1937):

The NRL Act prohibits unfair labor practices affecting commerce; the Court upheld the Act. The
Court said 2 things:
1. The manufacturer-distribution dichotomy (like we see in Hammer v. Daggenhart) IS NOT
DETERMINATIVE, although the court does not take it away completely
2. The EARLY SEED of the (Substantial) Effects Test…in Jones the Court just talks about Effects.
United States v. Darby (1941):

Federal minimum hour legislation that in NO WAY would have been upheld in Hammer, is
upheld now under Darby. The CC extends even to intrastate activities (ie wholly within a state)
like wage and hour regulation if they affect interstate commerce.
Congress can legislate if its needs are appropriate to a legitimate government end (McCulloch).
Ie there is necessary and proper play here with the CC.
Wickard v. Filburn (1942):

A federal allocation of wheat production by farmers, and a farmer is exceeding his federal
allocation, but he was using his surplus for personal home use and not selling it on the market.
The Court said that Congress can regulate b/c if EVERYONE did the same thing as this farmer
there would be a substantial national effect on interstate commerce, and thus the AGGREGATE
EFFECT makes Congress’ regulation authorized under the CC.
Heart of Atlanta Motel v. United States (1964):

Congress enacted public accommodations provisions in the Civil Rights Act, which seemingly
barred racial discrimination in hotels. We saw federal anti-discrimination legislation for public
places used in the CIVIL RIGHTS CASES -> Congress could NOT regulate in these places
under the 13th (it wasn’t slavery or involuntary servitude) and 14th Amendment (ie it was private
and not state action).
NOW Congress comes back and enacts federal Civil Rights legislation pursuant to its Commerce
Clause authority. And the Court upholds this regulation.
Note that there is an advantage to enacting federal civil rights legislation under the civil war
amendments, as related to the 11th A, which is discussed a little later in this outline.
This case establishes Interstate Commerce Effects Test.
Katzenbach v. McClung (1964):

The ribs restaurant (Ollie’s Barbeque) that imported more than half its food from out of state,
thus establishing an effect on interstate commerce. The court said that prohibiting racial
discrimination in a restaurant that imports more than 50% of its food from out of state is
perfectly fine under the commerce clause.
32
WHEN CONGRESS ACTS pursuant to one authority, check others that may be acceptable
THAT IS WHAT THE EXAM IS ALL ABOUT.
3. . . . And Back to Defined Limits (?):
THE COURT IS NOW CLOSING IN ON THE COMMERCE CLAUSE REGULATION POWER
United States v. Lopez (1995):

Federal ani-gun regulation within 1000ft of school zones. The Court overturned the legislation,
as it was not a valid exercise of CC authority.
Congress can regulate three things:

1. A channel of interstate commerce
2. An instrumentality of interstate commerce
3. Anything that has a substantial effect on interstate commerce
The Substantial Effects Test – (THIS IS THE MODERN TEST FOR THE COMMERCE CLAUSE)
The four factors used:
1. Is the regulation commercial in nature?
2. Is there a jurisdictional element in CC jurisprudence?
(ie – is the legislation limiting itself to interstate transactions or commerce. The legislation in
this case did not say that ‘no gun can be used within 1000ft of schools if it was bought in
interstate commerce’ – ie something that would clearly connect it to interstate commerce.)
3. Are there congressional findings?
(ie - findings in the legislative record between the activity and interstate commerce – in this case
Bryer goes through all kinds of material suggesting a link between guns and interstate commerce,
but it didn’t matter what the Court’s findings were, it matters about CONGRESS’ findings)
***The significance here is that we cannot just make up an ends like we could in Williamson v. Lee
Optical; there must be Congressional findings that support such.
4. Is there an attenuated link to interstate commerce?
(in this case, the guns have an attenuated link to interstate commerce.)
HERE THE SUBSTANTIAL EFFECTs TEST FAILED

But, Congress later went back and added congressional findings to allow school zone gun regulation.
United States v. Morrison (2000) (Study Case):

Civil remedy provision in the Violence Against Women Act. The Court says the Act is NOT
authorized by the CC. It is not a channel or instrumentality of interstate commerce, that is
certain, but does the Act have a substantial effect on interstate commerce?
1. No commercial element in violence against women

2. It did not relate to interstate discrimination against women – no jurisdictional element
3. There were congressional findings and there were good ones – BUT the court states that
congressional findings alone do not meet the test if all the other elements are unsupportive
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4. There is an attenuated link between the two: Violence Against Women---and---Interstate Commerce.
(too many links in the chain between the two – too attenuated a connection)
Gonzales v. Raich (2005) (Study Case):

When Congress enacts a law regulating purely intrastate matters, but it does so as part of a
broader comprehensive regulatory scheme that is itself authorized by the CC, then that small
piece will also be authorized by the CC. Ex. Congress has a comprehensive federal drug
program outlawing a number of drugs and regulating them in different ways; when a state comes
along and adopts a medical marijuana provision, that it is OK to use it for medical purposes, but
the Federal Law says NO it cannot; it is the Federal Law that wins. Why, b/c Congress has a
broad scheme of regulation that is authorized by the CC and thus any component of that scheme
is also authorized under the commerce clause, and Congress’ regulation trumps the state law
because of the Supremacy Clause.
CURRENT COMMERCE CLAUSE TEST:

It is the Lopez Test (with which Morrison is a great example) and you can also add the element
of ‘broader scheme’ analysis from Raich.
When you see the ? about Congressional Action on the EXAM, go through the checklist and
when you get to CC, ask does the CC authorize this Congressional action, and we will run
through the Lopez and Raich tests; if it is satisfied, great, if not find another AUTHORIZATION
such as the spending power.
Go through EACH SOURCE OF AUTHORITY FOR THE EXAM. But give a historical
perspective in your exam answer if you want the A.
B. Reconstruction Amendment Power:

The 13 , 14 and 15th and the enforcement power under them, along with the Necessary and Proper
th th
Sweep behind them. Congress can regulate beyond their contours, and thus define the Constitution
for itself, but only in the sense that it is not overturning the Supreme Court or Constitutional doctrine
– it is simply redefining it for specific, limited purposes.
1. From Constrained Power . . .:
The Civil Rights Cases (1883) (Review):
2. . . . To Expansive Power . . .:
South Carolina v. Katzenbach (1966):

th
Under Sec 2 of 15 A (the voting rights amendment). Congress enacted a federal voting rights
act that provided for the suspension of literacy tests for voting, that provided for pre-clearance
procedure by the department of justice in certain instances when states wanted to adopt certain
voting practices, and it did some other things. Suspension of literacy tests was most notable.
34
Remember that in the Lassiter Case, it established a constitutional standard for literacy tests in
voting. Lassiter said that it is not unconstitutional to have literacy tests. Thus when Congress
comes back and says no literacy tests, it seems to be shifting the constitutional floor [or if
Lassiter is the core on literacy test – Congress is pushing it out and is redefining the standard].
The Supreme Court however upheld the suspension, on the basis of 2 things:
1. Specific congressional findings of specific problems of literacy tests in specific areas
2. Legislation that was specifically tailored to regulate in those areas only – NARROWLY
DEFINED (it didn’t try to just overrule Lassiter, and case by case litigation was not working, and
the problem was calling for a policy solution)
Katzenbach v. Morgan (1966):

Similar situation, this case concerned section 4e of the Voting Rights Act (anti-discrimination in
voting provision against individuals born and educated in PR, to prevent tests only in English
that the PRs might not be able to pass). This case fell under section 5 of the 14th Amendment.
The analysis is precisely the same as in SC v. Katzenbach, with Lassiter as the baseline.
The Court upheld the law, but there was specific congressional finding and it narrowly tailored
its legislation to agree with its fact finding. It did not overturn Lassiter, as no one did, but it
shifted the constitutional baseline.
The Court employs McCulloch to give Congress wide authority under section 2 of the 15th and
under section 5 of the 14th in the same way as the Court gave wide authority to Congress to
create the National Bank.
In so doing, the Court cites Williamson v. Lee Optical; suggesting that it is the Lee Optical
Rational Review Basis Test that guides the necessary and proper analysis **a very high level of
deference to Congress** – The Lee Optical Test stated that any conceivable, legitimate
government end will do.
These two cases are at the HEIGHT OF JUDICIAL DEFERRENCE TO CONGRESS.
Jones v. Alfred H. Mayer Co. (1968):

Congress enacted a federal anti-discrimination law relating to real estate, you cannot
discriminate based on race in the sale of your home. The law is upheld as it was a badge and
incident of slavery under Sec 2 of the 13th A. Remember that the 13th Amendment does not apply
just to state actors, so we do not have a state actor problem here. Under Sec 2, Congress can
implement this anti-discrimination measure.
Hypo How Can Congress Legislate:

Only intentional racial discrimination, on its face is going to violate the 14th Amendment Equal
Protection Clause.
And so, when a city like Mobile Alabama adopts an election plan for its city counsel, that is an at
large election plan in a white majority city but with a black population minority, and the city
counsel year after year turns out to be all white without a single black elected, b/c ppl are voting
along racial lines and the white majority will never vote in a black councilman in an at large
35
election. There is no evidence of intentional discrimination here, and so the Court, when this
voting scheme is challenged, upholds the scheme against the Equal Protection challenge.
So Mobile is our baseline. Now, Congress comes along and Congress wants to say that not only
a racially discriminatory purpose, but a racially discriminatory effect is illegal under federal law,
but that as a matter of federal statute, Congress wants to enact a statute that says anytime there is
a purpose of discrimination in a city election or anytime there is an effect of discrimination in a
city election, that election system must go through a department of justice pre-clearance
screening before it will be authorized.
What do we advise Congress?

1. Congress has to do a fact finding, and the legislation must be narrowly tailored to the problem
on the record that they have found. So say they found the problem in 10 diff cities in the South
and in the North, there is no racial intent in any of these, so it does not fall below the Mobile
floor in terms of Equal Protection violation. But Congress is requiring these cities, because of
their history, to go through a department of justice pre-clearance screening procedure. What
else?
Litigation has proved ineffectual to solve the problem, you can say we have seen equal
protection cases brought in these cities, but that case by case has proved ineffectual. THIS
SYSTEM WILL THEN BE UPHELD.
Now different facts. Congress comes back and instead tries to regulate nationwide,
indiscriminately it does not care that anytime a PL can show either a racially discriminatory
intent or a racially discriminatory impact, Congress will give that PL a COA under federal law.
What is your answer?
This situation runs into the problem, because it is indiscriminate nationwide and has no bound.
IT IS REDEFINING THE CONSTITUTION in a way that the RFRA did in the City of Boerne
v. Flores case; Congress is thus trying to overrule the Mobile Case by statute, and this will not
work.
The difference between the two?

Specific, modest, legislation, that is temporally, and spatially limited in the first fact pattern, but
not so in the second.
Now, we can do the legislation under the 13, 14, or 15 As, (the Civil War As), but that is NOT
the end of our inquiry. What about other sources of authority. Remember the legislation says
that the scheme is illegal whether the discrimination is a purpose or an effect of the scheme.
CC – it is not a channel or instrumentality, but we can check the substantial effect test – will
likely be attenuated though.
The Treaty Power – do we have a treaty about racial discrimination in elections, maybe we do. It
is worth looking at.
Spending Power – Congress will give the cities money to buy new election machines if they
change their election system so that neither the purpose nor the effect is discriminatory.
Tax Scheme – Can we enact a tax scheme that will enable Congress to achieve the results it wants.
Congress wants to regulate restaurant discrimination. What authorities?
36
-Civil War amendments

-CC
-Taxing / Spending / Treaty
-check also 10th, 11th, Bill of Rights (ie check the restrictions as well)
3. . . . Back to Constrained Power (?):
Oregon v. Mitchell (1970):

Fractured Ct overturned a federal requirement of an 18yr voting age.
City of Boerne v. Flores (1997):

Congress enacted the Federal Religious Freedom Restoration Act (RFRA) which as a matter of
federal statute redefined the free exercise clause of the 1st amendment. We had a Supreme Court
Case Smith, the peyote case, in response to Smith, Congress enacted the RFRA which did not
shift the Smith baseline in discrete areas, but it did it across the board everywhere and flatly tried
to reverse Smith. The Court said NO, the regulation was too broad.
The Test of Proportional and Congruent – The legislation must be proportional and congruent to
the injury that congress seeks to prevent or remedy and the means that Congress uses to prevent
or remedy that injury.
United States v. Morrison (2000) (Study Case):

Awesome example of two authorities supporting the same legislation. Congress claimed that
two authorities supported the Violence Against Women Act. The CC and Sec 5 of the 14th, and
so Morrison is a nice study case. The Civil remedy act did not pass muster under both of these
though, is there was a disconnect between what Congress found and the remedy it provided.
Congress found that there was pervasive discrimination against women who had been the subject
of violence in state court systems, but the remedy that Congress provided was a civil remedy
against the Batterer. It is not the Batterer that causes the pervasive discrimination against
women. There is no direct relation between the two, they may be loosely related. What remedy
would you suggest?
Something more tailored to the women themselves.

Something more tailored to the judicial system – federal requirements to the judicial system that
would avoid this kind of pervasive discrimination against women who are the subject of
violence. There are some obvious problems with that though:
10th Amendment problems – The federal gov is telling state court systems how they must
operate.
So change it; Congress provides a civil remedy provision for women subjected to violence
against any actor in a state judicial system who has exhibited discrimination against them. This
is nicely tailored, but what is the backend problem?
An 11th Amendment violation – Suing a state official.
37
And so in the end, the Court in Morrison said that Congress’ legislation was not Proportional and
Congruent to the result it wanted to achieve.
Nevada Dep’t of Human Resources v. Hibbs (2003) (Study Case):

The Family and Medical Leave Act (FMLA), which provides medical leave for individuals who
are caring for family members because of their infancy or because of their disability by sickness
or for other reasons. The FMLA provided for both state and federal employers, and so there are
10th and 11th Amendment problems right out of the gate. It provided for civil remedies against
the state if the state employer didn’t provide the benefits under the FMLA, and that is an 11th
amendment problem. The Court said that the 11th A immunity problem was not a bar to the
statute, and thus there was no 11th A problem:
Two sections that would best support the FMLA are section 5 of the 14th and the other is under
the CC. If Congress does it under the CC and provides a COA against the state as employer
under the CC that causes 11th problems. So CC is attractive, but has problem.
Section 5 does not run up against the 11th problem, b/c Section 5 was enacted after the 11th
amendment with the specific purpose of holding states accountable for violations of equal
protection, due process, and POIs. So the 11th is not a bar against suits against a State pursuant to
federal statutes that were enacted under the 14th (or 13th and 15th).
So our best advice is for Congress to use the 14th A b/c then we get around the 11th A problem.
This is the Proportional and Congruent Test (which arose from Katzenbach Cases) based on the
congressional fact finding done, which established that it was difficult for people to get off work
to take care of children or family members in need, and that when they did, it perpetuated
discrimination against women in the workplace.
Garrett (2000) and Lane (2004) (Study Cases):

ADA cases. They illustrate how you get Congressional legislature through on 14th grounds and
how you do not.
Two differences between the two cases:
One difference is Congressional fact finding; sufficient in Lane but not in Garrett.
The second difference is that what was at issue in Lane was less about discrimination against
people with disabilities, and more about access to the court. Access to the court is something the
courts take more seriously than discrimination against people with disabilities.
CURRENT SECTION 5 TEST:

The Proportional and Congruent Test - The legislation must be proportional and congruent to the
injury that congress seeks to prevent or remedy and the means that Congress uses to prevent or
remedy that injury.
C. Spending Power:
1. Early Ideas:
38
The Hamilton-Madison Debate:

Madison – restrictive reading of the spending clause
Hamilton – expansive
United States v. Butler (1936):

This case involved a Fed spending program that was giving money to farmers if they cut their
crop production. The court overturned the program as beyond the Congress’ spending power.
Ultimately the Court went with the expansive view, as was Hamilton’s view of the spending
power.
Think about disaster relief with the tornados that occurred recently in Missouri, a local problem
in so many ways. Early on in our nation, Congress debated whether it could spend federal
money for relief with local disasters. Hamilton would say yes, Madison no.
2. Conditional Spending:
Federal spending conditioned on a State doing something.
Oklahoma v. Civil Service Comm’n (1947):
South Dakota v. Dole (1987):
Sabri v. United States (2004) (study case):
CURRENT SPENDING CLAUSE TEST:

3 Part Test:
1. Fed Spending must be in the pursuit of the General Welfare. Courts however are very deferential
to Congress in determining what the general welfare is. Therefore if Congress says something like
disaster relief to help ppl harmed by a local tornado is helping the general welfare.
2. The condition itself must be unambiguous. Congress must state a condition to a state in clear,
plain terms.
3. The condition must be related to the federal interest in the project. There must be a rational
relationship between the condition and the project itself. Ex. drinking and highway funds;
congress can impose a drinking age or speed limits is it can limit spending based upon its
connection with highway funds.
D. Taxing Power:
1. Early Ideas:
39
Bailey v. Drexel Furniture (1922) (Review):

Congress imposed a tax to incentivise manufacturers to not use child labor. The court said that
Congress could not do this because it could not do indirectly through the taxing power what it
could do directly through the CC. This was a regulation disguised as a revenue generating
device. A tax for revenue generating purposes will be upheld under the taxing power, but not a
regulation in disguise.
2. The (Non) Regulatory/Revenue Dichotomy:

This regulatory/revenue dichotomy idea goes away after these two cases:
Steward Machine Company v. Davis (1937):
United States v. Kahriger (1953):

Any tax by Congress that in fact raises revenue (ie any tax) will be upheld under the taxing
power. It does not matter the regulatory effect that it has, because the Court recognizes that in
effect, all taxes have a regulatory effect.
CURRENT TAXING POWER TEST:

Any tax by Congress that in fact raises revenue (ie any tax) will be upheld under the taxing power.
E. Treaty Power (Review):

A treaty will be upheld by the Court if it is in the national interest. The only time a treaty will
come before the Courts is on a 10th A challenge, of the type that was used in the Missouri v.
Holland case. But, the Court may likely rule that the treaty issue is a political ? or foreign
policy ? that the Court will defer judgment to Congress or the Executive.
Missouri v. Holland (1920):

Migratory bird treaty.
III. Congressional Limits:
KEY CONCEPTS:
Federalism Arguments: 10th Amendment; State Experimentation; 17th

Amendment, the argument based on transparency in a democracy:
These are all arguments about Federalism.
The argument based on transparency in a democracy – the voters need to know who is making
the decision so that person or group of people can be voted out of office if the public does not
agree with their decisions. To the extent that it is something that a Congressional action is hiding
40
who the decision maker is, that may be a good reason on Federalism grounds to overturn the
decision – for reasons we have studied.
States’ Rights:
Code for States against the Federal Government (and it is a 10th amendment issue).
Conditional Congressional Spending:

Congressional Conditional Spending will be OK even against a 10th A challenge on Federalism
grounds if it meets the Spending Test (which is the same spending test in the S.D. v. Dole case)
Federal Commandeering:
The Federal government CANNOT commandeer state actors to implement federal law. Neither
can the Federal government require states to implement Federal law. It can strongly encourage
states to do so through spending and taxing, but cannot require.
Ways of Violation:
1. The federal government can tell state officials that they must enforce federal legislation, and if
it did this, it would be a violation of the 10th.
2. It can tell state officials that it must adopt or enforce federal laws as their own, this is also a
violation of the 10th (same situation as in US v. New York)
Bill of Rights:
It is a restriction on Congressional authority.
11th Amendment Immunity:

th
11 A provides immunity to States from being sued in federal court. In addition to the plain
language of the amendment itself, it has been interpreted to apply whether the state is sued by its
own citizen or a citizen from another state.
Exceptions to 11th amendment immunity (Ways to Get Around It) –

1. You CAN sue state officials in federal court for injunctive relief, or for money damages IF the
money comes out of their own pocket. You cannot however sue state officials in federal court IF
the money comes from the State Treasury.
2. If the State waives its immunity in a clear, noticeable manner.
3. If you are suing a state based on a federal civil rights statute that was enacted pursuant to the
13, 14, and 15 amendments, for reasons we discussed earlier. The 11th amendment is NOT a bar
(SEE ABOVE). These amendments were enacted after the 11th with the SPECIFIC PURPOSE
of holding states accountable for violations of those amendments.
A. From Few Limits . . .:
Garcia v. San Antonio Metropolitan Transit Authority (1985):

This case concerned the application of a Federal minimum wage law to the SAMTA, which was
upheld; Garcia overturned National League of Cities, which had not upheld a similar federal
minimum wage law.
The Test – ‘Functions Essential to Separate and Independent Existence’ – if the federal gov
legislates in a way that intrudes upon those functions that are essential to a separate and
41
independent existence of the State government, that will run afoul to federalism principles in the
10th.
GREAT FEDERALISM ARGUMENTS
B. . . . To Defined Limits:
Gregory v. Ashcroft (1991):

Age discrimination of a judge retiring.
New York v. United States (1992):

This case concerned the Federal Hazardous Waste Act; we saw different sources of authority
giving Congress the power to regulate, but where the Act ran into a problem was where it gave
the state a Hobson’s choice. The choice was that the State could either take title to hazardous
waste or they could regulate hazardous waste using Congressional regulation. The Court said that
either choice is requiring the state to do something that Congress cannot require the States to do.
Congress can encourage or persuade but not require. This was commandeering, and runs afoul
of the 10th Federalism principles.
The Fed gov cannot compel States to enact or administer a federal regulatory program – it cannot
do it directly and it cannot do it by choice if both choices are doing that.
Printz v. United States (1997):
The Fed gov cannot commandeer state employees to implement federal law. The case concerned
the Brady Handgun Violence Act that required local officials, not federal officials, to engage in
activities that related to reporting of gun purchases and gun ownership. Basically the law was
making local sheriffs as federal agents of the Act. It was requiring them to enforce the Act, and
thus the Court said that this was commandeering and ran afoul to the 10th.
CURRENT 10TH AMENDMENT TEST:

Part 1. The Fed gov cannot require states to adopt or enact a federal gov regulatory program
Part 2. The Fed gov cannot commandeer state employees to implement federal law.
Note that it is very easy to get around these with say conditional spending or taxing.
IV. Federal Constitutional Limits on State Governments:
KEY CONCEPTS:
42
Federalism, States’ Rights, Police Powers:

Discussed above.
14th Amendment Due Process and Incorporation:

The Bill of Rights, as incorporated through the Due Process clause of the 14th is a constraint or
restraint on state action.
Know that when a state does something, it cannot do it in a way that runs afoul to the 1st
amendment as incorporated to the state, via the 14th amendment Due Process clause.
“Dormant” Commerce Clause, “Vacuum Theory,” and Congressional
“Reversal” of Supreme Court:
How do we know if something is interstate commerce: USE THE Commerce Test above,
Vacuum Theory – there is not an area of commerce that NEITHER the State nor Congress can touch.
(We heard this argument in the Lopez case)
Article IV Privileges and Immunities:

1. Art IV PAIs is an anti-discrimination measure, that states cannot discriminate against out of
staters on important economic matters.
2. Art IV PAIs can also be used to protect against a state for violations of individual civil rights –
this is the substantive side of Art IV PAIs. Remember from Corfield v. Coryell, the Art IV
substantive PAIs were listed. These are the things, that are basically civil rights as against a
government to protect civil rights. This provision is not frequently used that way, given that the
14th may also be used, but it CAN be used that way.
A. Congressional Representation:
U.S. Term Limits, Inc. v. Thornton (1995):

When a state tries to change the terms (length of term limits) of its members of congress, the
Court will say that it cannot do this. The Court says that the qualifications for members of
Congress are written into the Constitution, enough said, states cannot change that.
B. Dormant Commerce Clause:

Consider if Congress had not regulated does the State have the power to do what it did. In the
absence of Congressional regulation on the matter, can the State regulate interstate commerce –
the Dormant Commerce Clause – the mirror image of the commerce clause – by virtue of
Congress’ power under the Commerce Clause what can States not do.
Non-Discriminatory State Action:

A state action that on its face does not seem discriminatory as against interstate commerce. Here
an example would be ‘truck length’. The action would violate the dormant CC only if it burdens
interstate commerce, and the burdens (to say trucks) outweigh the benefits of the regulation.
Discriminatory State Action:
43
Ex. ‘trucks not licensed in Illinois must be of a certain length’. This type of action specifically
mentions differences between states. The test is it violates the dormant CC only if it burdens interstate
commerce and is not necessary to achieve an important government interest. The bar is higher.
Market-Participant Exception:
States can discriminate if they are acting as a market participant. Ex. ‘the state owned cement
company that charges lower prices to in state residents than out of state residents’, because the
court has carved out a market participant exception here.
Congressional Approval:
VA built a bridge across the Ohio River in Wheeling (now in W. VA), and PA and VA were
competing over where a road would cross the Ohio River. The bridge was built too low to allow
some ships to pass under it, but by the time the Supreme Court issued an injunction requiring the
bridge raised in height. Congress later included a provision in a bill which passed that in effect
reversed the Court’s order, by giving the State authorization to erect the bridge as it did. The
Supreme Court ruled in the subsequent case on the matter that Congress had such authority.
The Supreme Court does not have the last word on whether a state regulation affects interstate
commerce.
If a State exceeds its police power and regulates in interstate commerce in violation of the
Dormant Commerce Clause, Congress can go back and retroactively approve it. A state act can
be ruled as unconstitutional by the Supreme Court, but after the Court has ruled, Congress can
come back and say that it was OK for the State to do that. This makes sense, b/c Congress is
acting pursuant to its own Commerce Clause authorities, as it is simply delegating some of its
Commerce Clause authorities to the state.
CURRENT DORMANT COMMERCE CLAUSE TEST:
C. State Taxation of Interstate Commerce:

When states tax, taxes reach some people who are not residents of that state; for these people to
be taxed the tax must relate to the taxed entity’s involvement in that state. Out of staters can pay
in state sales tax, b/c they have come into the state to buy goods. States cannot tax a total
amount of miles that a truck driver has driven, only the portion the truck has driven in the state.
CURRENT STATE TAXATION OF INTERSTATE COMMERCE TEST:
D. Article IV Privileges and Immunities:

They can be used to protect certain Constitutional rights, those set out in Corfield v. Coryell.
Constitutional Rights:
44
Economic (i.e., Not Purely Recreational) Activities:

Think about the difference between a recreational hunting license versus a hunting license for
commercial purposes. Ie. Livelihood (important gov interest) vs. hunting for purely recreation.
CURRENT ARTICLE IV PRIVILEGES AND IMMUNITIES TEST:

1. There MUST be facial discrimination against out of staters.
2. Applies to civil rights and to important economic activities.
3. The discrimination MUST be necessary to achieve an important gov interest
V. Executive Powers:
KEY CONCEPTS:
Relationship to Congressional Powers (and Jackson’s Three-Part

Framework in Youngstown):
Inherent Article II Powers:

SEE TORTURE MEMOs. Even if the executive acts only based on their Art II authority, they
have very expansive powers. Think about the executive in the Whitehouse receiving the
authorization of military force from Congress, the executive’s response is ‘thank you, but we
don’t need it.
The Unitary Executive is an extraordinary claim of inherent Art II powers, that the unitary
executive has all the powers that they need under Art II; they do not need to be blessed by
Congress, and in war powers if Congress takes powers away from them, it is irrelevant.
Signing statements – Congress will pass a law and the Executive will implement a signing
statement that says that they like the legislation very much, but will refuse to enforce it in these
provisions if it is inconsistent with the unitary executive.
A. War Powers:
The powers to Detain, Try, and Treat Prisoners in War Time
1. Habeas Corpus and Executive Detention:
Ex Parte Merryman (1861) (Review):

Only Congress can suspend Habeus Corpus. This is based from an inter-textual argument based
on the suspension clause and its placement in the Constitution in Art I.
Hamdi v. Rumsfeld (2004):

The AUMF is broad as it is, is enough to authorize detention. Because detention is ‘part and
parcel’ of the use of military force, and that detainees do however, need to get some level of due
45
process. The due process is determined by the Matthews v. Eldridge Balancing Test. Due
process may be obtained either through Habeus in the Federal Courts (appeal) or through
Combat Status Review Trial (CSRTs), a Military Tribunal. The Court has no preference
between the two, so long as due process is preserved.
Rasul v. Bush (2004) and Johnson v. Eisentrager (1950):

Eisentrager deals with a Constitutional Habeus claim. The Constitutional claim is not applicable
to enemy aliens with no connection to the US; folks who are not detained in the US, nor are US
citizens, nor have even been to the US; they have merely been captured by US forces overseas
and that is why they are detained.
Rasul does not deal with Constitutional Habeus but with Statutory Habeus. The Rasul Court
states that Statutory Habeus in the US Code extends to the detainees at Guantanamo Bay.
Boumediene v. Bush (2008) (Study Case):

How far does Constitutional Habeus extend? Does Constitutional Habeus like Statutory Habeus
in Rasul, extend to Guantanamo Bay. The Court has not yet provided an answer.
Constitutional Habeus – what do we mean by this – it means the Habeus right that is in the ether
of the Constitution, it is not in the Constitution itself, because the Constitution itself never grants
Habeus, all it says is that Habeus may be suspended in certain circumstances. Because the
Constitution states that Habeus may be suspended in certain circumstances, it has been
understood there is a Constitutional Habeus out there, irrespective of what Congress does by
statute. The Constitutional Habeus out there is the Constitutional common law Habeus that
existed at the time of the framing of the Constitution.
Thus, in this case there is a lot of discussion about the status of the common law Habeus at the
time of the framing of the Constitution.
Contrast with Statutory Habeus – which means the Habeus right that Congress has provided to
individuals detained in US custody under the US Code as a matter of statue. Rasul involved the
Statutory Habeus.
Within Justice Jackson’s 3 part framework, how does an executive justify detention of an enemy
combatant? – detention with or without Habeus.
2. Military Tribunals:
Ex Parte Milligan (1866) (Review):

Individuals cannot use military tribunals when the civil courts are open and available. This case
involved a Military Tribunal in Indiana during the Civil War when Indiana was not in the field of battle.
Ex Parte Quirin (1942):

Natzi Saboteurs case. Congress authorized Military Tribunals in Article 15 of its Articles of
War. What is extraordinary is that by its plain terms, Article 15 did not say that Congress
authorizes or creates Military Tribunals. It only states that ‘nothing in these articles shall be
46
construed to take away jurisdiction from military tribunals’. Thus, Congress backdoored into
their authorization of Military Tribunals, but the Court said that was enough.
Hamdan v. Rumsfeld (2006):

Article 15 of the Articles of War THEN BECAME a portion of the Uniform Code of Military
Justice (UCMJ) that was at issue in Hamdan v. Rumsfeld. The Court in that case stated the same
thing. The UCMJ not the AUMF, and not the Detainee Treatment Act (DTA), was enough to
authorize the Military Tribunals. It is enough to authorize the Military Tribunals, but where
Congress got into trouble is with the substantive charge itself and with the process, because
while the UCMJ authorized the tribunals, it authorized them in a way that a charge of conspiracy
would not fly and was not enough, and that the process provided under the military tribunals in
Hamdan did not meet the requirements of Military Tribunals as authorized by the UCMJ or the
Geneva Conventions
3. Treatment of Detainees:
Torture Memos (Study Case):

***GO OVER THESE for discussion about Art II authorities and responses***
HOW do you apply the Youngstown Framework to these types of ?s.
CURRENT WAR POWERS ANALYTICAL FRAMEWORK:
B. Power to Enforce the Laws:
United States v. Cox (1965):

The case dealt with the discretion of a prosecutor not to prosecute after a grand jury comes back with
an indictment. Can they not prosecute? Yes they may not, it is called prosecutorial discretion and it
is part of the Executive authority of Art II – the discretion when and how to prosecute the laws (broad
authority).
United States v. Nixon (1974):

A claim for executive privilege by Nixon. The Court here balances the claim of executive
privilege vs. the Court’s needs for the Whitehouse tapes in prosecuting the Watergate vandals.
CURRENT “ENFORCEMENT POWER” TEST:

Under the Take Care Clause there is great discretion for enforcing the laws; see US v. Cox.
C. Appointment Power:
In re Sealed Case (1988):

This is the case of the independent counsel law. The question was, is congressional appointment
of an independent counsel, that goes around executing the laws (not something that Congress
would normally appoint but that the Executive would do) a violation of the Appointments
Clause. The Appointments Clause says that the Executive gets to appoint officers of the US, but
47
Congress can appoint inferior officers. So the issue was whether the independent counsel was an
inferior officer, and the answer the Court gives through Morrison v. Olson and Edmond v. US is
that the Appointment Power test is this:
An inferior officer is someone who can be fired by an officer (an officer is a Cabinet member).
Morrison v. Olson (1988) [same case as re Sealed Case]:
Edmond v. United States (1997):
CURRENT APPOINTMENT POWER TEST:

An inferior officer is someone who can be fired by an officer (an officer is a Cabinet member).
D. Veto Power:
I.N.S. v. Chadha (1983):

Congress enacted a law authorizing the Attorney General to make certain INS decisions, but then
reserved to itself in one chamber (ie not both Houses), a veto power.
Congress DOES NOT HAVE A VETO POWER.
Bicameralism and Presentment are necessary.

1. Bicameralism (bill must go to both houses of Congress and Both Houses must pass it)
And
2. Presentment (it must be presented to the Pres and passed or his veto must be overridden)
CURRENT “VETO POWER” TEST:

The veto power belongs to the Executive alone.
E. Treaty Power:
Congress enacts treaties with the advice and consent of the Senate. Anything in the national
interest or those things that customarily concern things nations agree about comes within the
Treaty Power, and the Courts will uphold if it even gets to the Court. The Court will likely punt
the issue back as a political ? and defer to the political branches.
Goldwater v. Carter (1979):

The case concerned a President’s unilateral recession of a treaty, and the Court said political ?,
and thus they did not deal with the issue.
CURRENT STATUS OF TREATY POWER:

Congress needs senate and house approval.
The President can enter into an executive agreement with any country without the consent of the
Senate that would be acceptable under the Treaty Power. The only difference with a treaty is
that a treaty has the same status as a federal statute, but an executive agreement does not.
48
F. Executive Immunities:
CURRENT EXECUTIVE IMMUNITIES TEST:

President has absolute immunity while in office, but no immunity from civil suits from the
actions of the President took prior to taking office (as in Clinton v. Jones).
VI. Article III Powers:
KEY CONCEPTS:
Justiciability:
1. Standing
Show an injury, causation, and redressability.
2. The case must be ripe
3. The case cannot be moot
4. The case cannot be a political ?
Standing:
To have standing in Federal Court you must plead (to avoid being kicked out per FRCP 12(b)(6)):
An injury
Causation – the injury is traceable to the DEF’s behavior
Redressability – a federal court decision will redress the harm
Political Question:
Use the phrase political ? in a general sense.
A ? that is better left to the political branches.
Congressional Jurisdiction Power:

Some power that Congress has to limit the jurisdiction of the Supreme Court and Federal lower
courts; this is jurisdictional stripping. The Supreme Court’s jurisdiction is set out in Art III, but
lower court’s jurisdiction is nowhere in the Constitution, and so Congress has much wider
latitude to alter the jurisdiction of lower federal courts.
A. “Jurisdiction Stripping”:
49
When Congress uses this power to limit the jurisdiction of the Supreme Court or Federal lower
courts strategically to avoid a federal court decision on a particular matter, this is called
“Jurisdictional Stripping”.
50

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I. Methods of Constitutional Interpretation:

Original Intent – what was the intent of the framers?

3. Where did the clause occur in the document?

4. Look to what is around the phrase you are examining.

5. Look at other provisions within the text of the document.

1. The Nature of a Government in general. What does a sovereign do?

C. Prudential and Consequentialist Analysis

1. Look at the purpose of the clause; what was it designed to achieve?

E. Precedent and Practice

II. The National Bank Debates:

The National Bank Debate: 2 Issues:

Arguments on this side:

Sources of Congressional Authority:

1. Madison (anti federal bank)

2. Attorney Gen Randolph (anti-bank)

Jefferson has the same arguments as Randolph

2. (Textual) Means ends analysis argument.

5. Jackson (anti-bank, in vetoing 1832 extension)

B. McCulloch v. Maryland (1819):

1. First Issue: Congressional Authority to Incorporate Bank

2. Second Issue: State Power to Tax the Bank

1. Federal Supremacy - (Textual and Nature of Gov Arguments)

III. Early Article III Cases:

Early Art III Cases -

A. Stuart v. Laird (1803):

B. Marbury v. Madison (1803):

The 2 main Issues in the case are:

1. Mandamus and Congressional Authority

2. Sources of Power of Judicial Review

Judicial Review is a Counter-Majoritarian force in our society, Bickel wrote GO OVER

Arguments against Judicial Review:

Arguments for Judicial Review:

Federalism and Commercial Regulations:

A. Property Rights: Fletcher v. Peck (1810) and Calder v. Bull (1798):

Why do we not need a Bill of Rights? (Federalists)

Why do we need a Bill of Rights? (Anti-Federalists)

Jefferson’s arguments Bill of Rights -

1. Gibbons v. Ogden (1824)

The first question is a Commerce Clause ?.

b. Supremacy Clause and Preemption

c. (Dormant Commerce Clause)

2. Willson v. Black-Bird Creek Marsh Co. (1829)

a. Dormant Commerce Clause

SO we need to know what police power is.

a. Commerce Regulation v. Police Power

4. Cooley v. Board of Wardens (1851)

a. Dormant Commerce Clause

Pg 206 review – The PA v. Wheeling & Belmont Bridge Co.

V. Early Citizenship and Slavery Cases:

Article IV Privileges and Immunities:

“Dual” Citizenship and Federalism:

A. The Native American Indian Cases:

1. Status of Indian Nations

2. Federalism and Supremacy Clause

B. Article IV Privileges and Immunities:

1. Corfield v. Coryell (D. Pa. 1823)

2. Crandall v. Nevada (1868)

1. Groves v. Slaughter (1841)

● Slaves are designated with the quality of persons in the Constitution

2. Prigg v. Pennsylvania (1842)

The Court uses a 3 step analysis: