CON LAW OUTLINE I. Origins of the Constitution A.

Articles of Confederation: an agreement among 13 founding states that established the U.S. as a confederation of sovereign states and served as its first constitution Its drafting by the Continental Congress began in mid-1776, and an approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. Even when not yet ratified, the Articles provided domestic and intl legitimacy for the Continental Congress to direct the American Revolutionary War, conduct diplomacy with Europe and deal with territorial issues and Indian relations. Nevertheless, weak government created by the Articles became a matter of concern for key nationalists. In 1789, Articles were replaced w/Const. New Const. provided for a much stronger national government with a chief executive (the president), courts, and taxing powers. (1) Madison and Hamilton wanted to revise the AoC. (2) Virginia Plan: Randolph; 1st plan introduced at convention; proposed 3 branches, highly centralized w/govt power over state laws. NJ rejected (nationalist position) (3) New Jersey Plan: (william paterson called only for revision of articles to enable Congress more easily to raise revenues and regulate commerce) was rejected. (4) 1st draft: Mason concerned bc no Bill of Rights. Hamilton & Washington B. Feds v. Anti-Feds: Many people at that time opposed the creation of a federal, or national, government that would have power over the states. These people were called Anti-Federalists. They included primarily farmers and tradesmen and were less likely to be a part of the wealthy elite than were members of their opposition, who called themselves Federalists. (1) Anti Feds: believed that each state should have a sovereign, independent government. Their leaders included some of the most influential figures in the nation, including PATRICK HENRY and GEORGE MASON. Many Anti-Federalists were local politicians who feared losing power should the Constitution be ratified. As one member of their opposition, EDMUND RANDOLPH. (a) George Mason, Sam Adams, James Monroe anti feds (b) Weary of a strong national govt. (anti feds and feds werent political group like democrat and republican; anti-feds wanted to bill of rights spelled out more quickly. (2) Feds: The Federalists favored the creation of a strong federal government that would more closely unite the states as one large, continental nation. They tended to come from the wealthier class of merchants and plantation owners. Federalists had been instrumental in the creation of the Constitution, arguing that it was a necessary improvement on the ARTICLES OF CONFEDERATION. Federalists included two men who helped develop the Constitution, JAMES MADISON and ALEXANDER HAMILTON, and two national heroes whose support would greatly improve the Federalists' prospects for winning, GEORGE WASHINGTON and BENJAMIN FRANKLIN. (a) Though bill of rights was inherent in Const. Natl govt only had the enumerated powers (powers article s. 8 deems to Congress)

(3) Unlike the Anti-Federalists, however, Jefferson supported the Constitution, although rather reluctantly. He was not strongly identified with the Federalist position and would eventually oppose the Federalists as a member of the DEMOCRATIC-REPUBLICAN PARTY. (4) Federalist Papers: John Jay, Alexander Hamilton and James Madison (VERY important) (i) The Federalist Papers communicates the central ideas of the Federalists: the benefits of a Union between the states; the problems with the confederation as it stood at the time; the importance of an energetic, effective federal government; and a defense of the republicanism of the proposed Constitution. The Federalist Papers makes a persuasive case for the necessity of federal government in preserving order and securing the liberty of a large republic. In doing so, it asserts that a weak union of the states will make the country more vulnerable to internal and external dissension, including civil war and invasion from foreign powers. (ii) Paper #78: Hamilton says that the Judiciary branch of the proposed govt would be the weakest of the three because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." There was little concern that the judiciary would be able to overpower the political branches; congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional, and to follow the Constitution when there is inconsistency. Hamilton viewed this as a protection against abuse of power by Congress. (federalism now means people whore afraid of great federal power) C. Ratification: Antipathy toward a strong central government was only one concern among those opposed to the Constitution; of equal concern to many was the fear that the Constitution did not protect individual rights and freedoms sufficiently. Concern over state rights Bill of Rights needed? Promise of these amendments ensured ratification of Const. (1) By 1788, Madison was convinced that BoR was necessary to ensure acceptance of Const and would have position effects; Giving people sense of community. Madisons support was critical and he worked tirelessly to persuade House to enact the amends; finally got 10 pushed through II. The Marshall Court: Assignment B JOHN MARSHALL OVERVIEW: Marshall used Federalist approaches to build a strong fed govt over opposition of Jeffersonian Democrats, who wanted stronger state governments. His influential rulings reshaped American govt, making sup ct final arbiter of constitutional interpretation. Marshall Court struck down an act of Congress in only one case (Marbury v. Madison in 1803) but that established the Ct as a center of power that could overrule Congress, President, states, and all lower courts if thats what a fair reading of Const required. He also defended legal rights of corporations by tying them to individual rights of

stockholders, thereby ensuring corporations have same level of protection for their prop as individuals had, and shielding corps against intrusive state govts. A. Marbury v. Madison: (judicial review) Marbury is important for three reasons: 1) creates authority for judicial review of executive actions; 2) establishes that Congress cannot expand the original jurisdiction of the Supreme Court; 3) establishes authority for judicial review of legislative acts by declaring 13 of the Judiciary Act of 1789 unconstitutional Holding: Marbury had a legal right to his commission b/c the president had already signed and made the appointment and didnt matter that it was undelivered b/c just a technicality. The court could issue a writ of mandamus to order the executive branch to approve Marburys commission, but it would be unconstitutional because court didnt have appellate jurisdiction. TEST: To determine if an act of an official is reviewable by the courts must look at the nature of the act. o Executive Acts that are not reviewable by the courts: political in nature respect the nation (not individual rights), discretionary o Executive Acts that are reviewable by the courts: the legis has imposed, where individual rights are dependent on those acts, ministerial no discretion On issue of whether mandamus was the appropriate remedy, Marshall holds that mandamus is appropriate where acts by officers that affect individual rights are involved On issue of whether the Supreme Court can issue the mandamus, Marshall holds that constitution (Art III, 2, cl. 2) does not allow writs of mandamus to be issued by Supreme Court if acting with original jurisdiction but only appellate jurisdiction. The Judiciary Act 13, which appears to give the court original jurisdiction, is unconstitutional b/c it violates Art. III and congress cannot expand the original jurisdiction of the supreme court Case states: Judges can declare legislature & Executive decisions unconstitutional. Congress cant be the police of the Courts. Judicial Review is a very important practice, but it isnt in the Const. BUT we can trust that maybe judges wont abuse the power bc they must have backing for their decision. This case makes a grand declaration about the power of the sup ct, BUT still rules in Jeffersons favor, preventing conflict bw the two. Bc Marbury v. Madison decided that a jurisdictional statute passed by Congress was unconstitutional, that was technically a victory for Jefferson administration (so it could not easily complain). Ironically what was unconstitutional was Congress' granting a certain power to the Sup Ct itself. The case allowed Marshall to proclaim doctrine of judicial review, which reserves to Sup Ct final authority to judge whether or not actions of president or of congress are w/in powers granted to them by Const. Const itself is supreme law, and when Ct believes that a specific law or action is in violation of it, Ct must uphold Const and set aside other law or action, assuming that a party has standing to properly invoke Cts jx. Marshall famously put the matter this way: It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. Const doesnt explicitly give judicial review to Ct, and Jefferson was very angry with Marshall's position, for he wanted the President to decide whether his acts were constitutional or not. Judicial review was not new and Marshall himself mentioned it in Virginia ratifying convention of 1788. Marshall's opinion expressed and fixed in the American tradition and legal system a more basic theorygovt under law. That is, judicial review means a govt where no person (not even President) and no institution (not even Congress or Sup Ct

itself), nor even a majority of voters, may freely work their will in violation of the written Constitution. Marshall himself never declared another law of Congress or act of a president unconstitutional. B. Fletcher v. Peck: (No laws that impair obligations of Ks; K clause Art. 1, s. 10, cl 1; limits on state govt; illustration of judicial review) Facts: In 1795, prompted by bribes, the Georgia legislature conveyed 35 million acres of state land to certain private companies for only 1 1/2 cents per acre. Several private investors, including Fletcher, bought parcels of the land. The next year, the legislature rescinded the conveyance. Fletcher brought suit on a warranty of title, challenging the rescission. (1) Issue: May a state legislature forfeit the rights of bona fide purchasers of land when the seller of that land acquired title by illegal activity? No. (2) Notes: The original grantee had full possession of the legal estate when he sold to Fletcher. Fletcher had no notice of the underlying fraud and did not participate in it. A conveyance obtained by fraud may be set aside as between the parties, but the rights of third-party bona fide purchasers may not be affected. Otherwise all titles would be insecure. The legislature may not disregard these principles of property law. Otherwise it could divest the estate of any man for whatever reason it would deem sufficient. Even if one legislature may repeal a law passed by a former legislature, it may not undo an act done under that law. The original grant in this case falls within the scope of the Contract Clause-Art. 1, 10. States are not excluded from the operation of that clause. The rescission is in the nature of an ex post facto law, or bill of attainder, both prohibited by the Constitution. The same result may not be obtained by simply annulling the original grant. Thus, the law is invalid either under the general principles that are common to our free institution or by the specific provisions of the Constitution. Concurrence: (Johnson) The scope of the Contract Clause is unclear because the term "obligation of contracts" is not easily defined. States regularly legislate in this area, prescribing how contracts may be authenticated, when they may be enforced, etc. But a state certainly may not revoke its own grants. (3) Obligation of Contracts and Constitution: (a) The Obligation of K Clause is a provision in Constitution that prohibits states from passing any law impairing contractual agreements. Article I, Section 10, clause 1 states, "No State shall ... pass any ... Law impairing the Obligation of Contracts ...." James Madison wrote in The Federalist, "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." Clause prevents states from passing laws that interfere w/ existing Ks bw private parties, or K between a private party and state. In 2 early sup ct decisions, John Marshall used clause to invalidate state laws that interfered w/prior grants by state in Fletcher v. Peck

(1810). These decisions held that a state could not abrogate (nullify) its own prior contracts with private parties. In the 20th century, the Supreme Court began allowing states to interfere with prior Ks in interest of safety, health, morals and general welfare. Leading case was Home Building & Loan Ass'n v. Blaisdell (1934), which allowed a state to impose a moratorium (suspension) on mortgages in combating deflation during the Great Depression. The Sup. ct. later expanded govtal power to interfere with Ks in Exxon Corp. v. Eagerton (1983), when a "broad societal interest" was the basis for government to prevent Exxon Corp. from enforcing a contractual right to pass an increased tax onto consumers. An interesting question is whether the Obligation of Contract Clause has only a retroactive effect in protecting contracts already formed, or also has a prospective application to protect the right to enter into future Ks. The view of prominent Professor Richard Epstein is that states may change rules governing future Ks only to provide greater stability and security in contractual obligations. Examples include a statute of limitations, a statute of frauds and recording acts. C. McCulloch v. Maryland: Opened doors to feds having more powers (necessary and proper clause/bank/power of natl govt/ Art 1, s. 8 cls 1/18 list of powers of Cong and Natl Govt) Think: how broad or narrow are these clauses construed? (1) Issue: whether Cong. has power to create a fed. bank of the US, no express power in Const. (2) Facts: federalists created fed. bank, states felt it took away their powers -MD passed law any bank not chartered by state of MD had to pay yearly tax, purp. to run fed. bank out of MD, fed. bank refused to pay, fought on Const. grounds MD had no auth. to tax fed. bank, MD arg. est. of bank unconst., no power for cong. to do so (3) MDs 1st Arg.: No Const. Power to Create/Incorp. Bank -MD leg. attempting to tax fed. instrumentality created by Cong. -asserts both that it has a rt. to tax the bank and that est. of bank unconst. b/c Cong. has no power to create/incorporate banks -MD compact theory Const. subordinate to states -dual federalism theory 2 equal sovereignties w/in US (states are parents of USA ie People States Parents; Marshalls opinion: (The people are the parents and the states/USA are siblings/children of the parents) (4) Marshalls Responses: looking at lang. of Const. & nature of doc. (a) Preamble: We the People Const. instr. of the people not the states (b) 10th Am. powers reserved to states if not delegated to the US -MD arg. that Art. I 8 gives no specific power to create banks -Marshall concedes fed. govt., govt. of limited powers deriving from enumerated powers

implied powers (c) Sup. Cl.: fed. govt. hierarchical, Sup. Cl. fed. law & govt. superior (d) Implied Powers: rejects compact theory, and finds implied power -Const. incomprehensible legal code if listed every means -implied power must by connected to enumerated power -pts. to enumerated powers for which bank would be useful to accomplish, i.e. power to borrow $, to regulate commerce, etc. (e) Nec. & Proper Cl.: textual basis for implied powers -refutes Jeffersonian view of nec. as meaning Cong. should act only if abs. nec. -ord. meaning of nec. as convenient/essential, or anything that can produce an end -framers intention to allow best means to attain goals of govt. -most imp. nec. & proper cl. among the powers of Cong. not among limitations -Marshall took nec and prop cl to mean helpful & useful -Ct says Constitution couldnt possibly list out all of its rights & thats why theres the necessary & proper clause (f) Scope of Fed. Powers: let the end be legit., let it be w/in the scope of the Const., and all means which are approp., which are plainly adapted to that end , which are not prohibited, but consist w/ the letter & spirit of the Const., are constitutional -end is legit. if implied power related to enumerated -prohibited end would be one which not allowed by specific Const. limitation i.e. 1st Am. (g) Pre-Text Theory of Const.: if Cong. were to use one of its enumerated powers as pretext for exercising powers not entrusted to it the Ct. would have duty to strike it down -most scholars dont believe Marshall meant this (h) we must never forget that it is the Constitution were expounding. Meaning, not a statute, but a framework. (very famous quote) (g) QoD: (1) Do you think J. Marshall does a persuasive job of getting around the fact that the Nec & Prop Clause contains the word necessary? Do you think bank is necessary? D. Govt Powers: (1) Separation of Powers: Division of power among leg, jud, and exec branches; horizontal relationship. (a) Federalism: Dvision of power b/w fed, state, and local levels; vertical relationship

E. Gibbons v. Ogden: (Commerce Clause Art 1, s 8 more than mere traffic, but a trade of commodities; Federal law is supreme, Congress has power to navigate these boats (1) NY laws created a monopoly and granted exclusive navigation rights to Ogden. Gibbons was licensed by act of Congress to navigate same waters. So, who actually has right to regulate/navigate this water? Ogden under state law or Gibbons under Congress? (a) Congressional acts trump state law when the 2 interfere w/each other. A state cant regulate commerce w/foreign nations among the states while Congress is regulating it. Interstate commerce is the key. (b) When invoking necessary & proper clause, you have to have a reason. It has to be a nec & prop way to one of the ends spelled out in the constitution. (c) This necessary & prop clause is important to the current health care plan. () This case foreshadows: (a) Issue of dormant commerce clause (b) Are states every allowed to regulate interstate power if it doesnt conflict w/fed gov? (c) Is this a concurrent power or an exclusive power of the feds. F. Class Overview for Section B: (1) Marshalls more concerned over Fed govt power than state. Fletcher: rules for people, no state; McCulloch Broad view; necessary and proper clause; Gibbons: commerce clause-takes broader view, interstate sale of goods. (2) Jacksons veto message: accept sup ct as binding or arguable w/leg and exec branch (3) McCulloch: one of the most important sup. ct. decisions. (a) Fed govt has changed since then, bc of cts interpretation of fed govt in this case. (b) Broad interpretation of fed govts power upset people (Andrew Jackson) who believed more in states rights. Southern people disagreed what if fed govt abolished slavery? (c) Inspired leaders/judges to complete the struggle bw Fed & states rights. (d) Kind of connected to civil war/Dred Scott bc state v. federal power (4) Andrew Jackson on Judicial Supremacy v. Branch Individualism (departmentalist theory) He hated Natl Bank and McCulloch decision. In Worcester v. Georgia, a Georgia criminal statute, which prohibited non-Indians from being present on Indian lands without a license from the state, was held unconstitutional, because the federal government has exclusive authority in such matters. It is often said that, in response to the decision, President Andrew Jackson said something to the effect of: "John Marshall has made his decision; now let him enforce it!" More reputable sources recognize this as a false quotation. In fact, the ruling in Worcester ordered nothing more than that Samuel Worcester be freed; Georgia complied after several months.

III. Constitutional Rights Before the Civil War: Assignment C A. Barron v. Baltimore: the only bill of rights case then; 5th amendment case; (reverse condemnation case) (1) Facts: Barron claimed that city made wharf useless by diverting streams during its construction work, thus violating his 5th amendments guarantees that property wont be taken w/o just comp. (2) Issue: Is state legislation subject to limitations imposed by amendments to Const? (3) Holding: No. Amendment intended as limitations solely on exercise of fed power. Bc theres no conflict here bw City and states action and the federal Const., this court has no jx over this action. (4) Rule: The amendments were intended as limitation solely on the exercise of federal power. 5th amendment not applicable bc the amendments demanded security against the fed govt, not the states (5) Article IV, Section II: Citizens of each state shall be entitled to priv and immu of several states. This means you wouldnt go from one state to another and significantly change rights you have any privs in MA, gives to its own citizens it must give to citizens of any other state. In Slaughterhouse, they emphasize that this clause didnt create any rights its sole purpose was to declare to the several states, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the some, neither more or less, shall be the measure of the rights of citizens of other States w/in your jx. (6) BoR protects certain freedoms, but only against the fed govt. Cant complain to fed govt about state issues; judges in this era werent really interested in individual rights. B. Dred Scott v. Sanford (Taney thought decision would help pacify civil war tendencies, but did opposite; strengthened repub party) (1)P, af am, brought action to assert title of himself/family to freedom. Can black man become member of US formed by Const? Taney gave 5-4 opinion. (a) Decided black men werent citizens bc at time of constitution, writers didnt intend for blacks to have these rights. So, counterintuitive to grant them those rights now. Dred Scott wasnt a constitutional citizen, so circuit ct had no jx. (b) Bc Scott was of African descent, he couldnt be US citizen, therefore couldnt invoke diversity jx and has no const. rights (c) MO Compromise was unconstitutionalCongress has no power to prevent slavery in a state. This is only the 2d time a congressional act was struck down (1st was Marbury) C. Overview of this Section: (1) Almost no cases about BoR in 1st decade. Barron was one of few. (2) Around 1830s-50s, democratic republicans split into 2 parties: Whig & Democrats. In 1854, after Whig party self combusted, Repubs (anti-slavery) was formed. D. Betseys Side Notes: (1) Two camps of const. theories: (a) Originalism

(b) Those who think const is a living, breathing document (can change with time) (2)Justice Marshall seems concerned w/expanding power of Fed Gov but not focused on states power (3) Judicial Supremacy: Idea that supreme ct has the final say, unless a new amendment is passed on the issue (a) Others believe in Coordinalist: 3 powers/branches are equal Jefferson, Jackson, Newt Gingrich.; the people will decide in instances of disagreement among the 3 powers through elections. (4) Necessary & Proper Clause: (a) Feds use links in a chain (b) US v. Comstock (2010) Modern example. Child porn case. Look up IV. The Civil War: Assignment D A. Ex parte v. Merryman: Facts: Merryman was accused of recruiting soldiers for confederacy in MD. He was convicted by military tribunal & his lawyers filed habeas action in cts of MD. Taney granted this, but Lincoln suspended it (secretly). Does pres have power to suspend writ of habeas corpus? (Art. 1 s. 9 cl.2) (1) Taney says no, but leaves it up to Lincoln to uphold. (a) Habeas Corpus doesnt mention exec branch in article. Framers carefully w/held this power from exec branch. Ct interpreted Art 1 to say that only Congress had power to suspend Hab Corp (b) Language in Const is too clear to be misunderstood. Branches of govt cant exercise powers greater than those specified & granted. Pres has duty to take care that laws be faithfully executed (2) Lincoln ignored Taneys ct order & told military to lock up people as needed. Politics & Congress eventually supported Lincoln when they came back in session. Some historical evidence that Lincoln was making plans to have Taney arrested for treason. But this is skeptical. Lincoln wanted to keep cts out of situation bc he was busy trying to win a war. (3) Taney believed he was going to be arrested. Why didnt he just quit and move to south?! (4) External Notes: a) Delegated Powers Theory: National govt only has those powers delegated to it by the Const. itself. The founders intended to make a govt of limited and enumerated powers. (1) To get around Pres have claimed this only applies to internal affairs. The individual states dont get powers that deal with international. (2) For Merryman its a domestic issue. There is a different set of rules for its own citizens than there is for foreign nationals. b) Lincolns Response: Are all the laws, save one, to go unexecuted, and the govt itself go to pieces, lest that one be violated?

B. The Prize Cases: Facts: Lincoln issued blockades of Southern ports a few weeks after civil war began. Southern & foreign ships were captured. At this time, blockade was initiated, was the country in a state of war such as to justify this drastic action? (1) Yes, but stron dissent. Civil war not solemnly declared, but happens by accident. Civil war sprun forth & the president had to meet it. The proclamation of blockade is in itself official & conclusive. The proclamation of blockage is in itself official & conclusive evidence that a war existed; technical evidence not needed. (2) The hope that this would be a quick & bloodless way to end the war. US Navy implemented this. They were allowed to seize the ship & their cargo & they got to keep what they found. (3) Still doubts about the constitutionality of the time this was going on bw when Lincoln ordered this until congress approved this. (4) External Notes: 1. FACTS: (prize cases)

a. President has no power to initiate or declare war against a foreign nation or domestic states, but Congress passed legislation to authorize the president to call out the militia and use the military and navy to suppress insurrection. b. The president did not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. i. The southern states had brought violence on Fort Sumter so Lincoln brought war.

ii. Congress was not in session yet. Executive order was issued to cut off life line to foreign nations ordered that ships could not deliver to southern states. iii. Generally was not the practice even in times of war to confiscate property, but Lincoln sought to prevent insurrection, and believed he had the power to respond. 2. HOLDING: a. Congress retroactively authorized Lincolns unilateral proclamations and actions and the court saw no problem here but without admitting that such an act was necessary, it found that Congress ratification was without constitutional objection. 3. Dissent, Nelson: a. Before the insurrection can be dealt with, it must be recognized or declared by the war-making power of the government. b. Whether the insurrection exists as war in a material sense carries no weight when the question is what constitutes war in a legal sense, by Congress. c. BUT< what about the contention that what would happen to the Union if we had to wait for congress to assemble before taking action?

d. The framers anticipated this, and by the passage of the act of 1795, Congress provided for the President to call forth the militia to suppress insurrections. ii. Modern Examples of Presidential Authority in War Time

C. Emancipation Proclamation: (1) People think that this freed the slaves, but only saved some. Slavery was ended in places that were still in rebellion..still under confederate control. (2) it was not a law passed by Congress. It proclaimed all those enslaved in Confederate territory to be forever free, and ordered the Army (and all segments of the Executive branch) to treat as free all those enslaved in ten states that were still in rebellion (3) Issue: was this constitutional? Morally, right thing to do, but is it constitutional? Ben Curtis, who dissented in Dred Scott thinks this is unconstitutionalthought it wouldve been better to take slaves only from rebellion states. (4) Moral considerations, even in as clear a case as slavery, are not enough to clothe the President or any other public official with legal power. But the southern states seceded and rebelled, and as a result President Lincoln justified emancipation as a necessary war measure, and he issued the Emancipation Proclamation under the power granted to him by the Constitution as Commander-in-Chief of the Army and Navy of the United States D. Ex parte McCardle: Supported traditional view of jx stripping; article III s. 2 Facts: McCardle alleged unlawful restriction. 1867: Congress amended the judiciary act of 1789 so that fed cts could grant writs of habeas corpus and parties could appeal judgments from district ct to circuit ct and from them to sup. ct. 1868: appeals portion of the act was appealed. McC brought case under new statute that extended right of habeas corpus no only to federal prisoners, but also state prisoners. (1) McC didnt have to bring his case under this statute, but he did anyway. Congress was nervous that sup ct seemed excited about this case, so they repealed statute. Sup ct knew this, but chose to roll over & dismiss McCs case. External Notes: 1868 two possible holdings, one that Congress has the broad power to limit jurisdiction of the Supreme Court to dictate case outcomes. [Post-civil war, Reconstruction legislation, McCardle appeal under Act and last minute Congress withdrew statutory right of appeal, Court complied w/withdrawal and dismissed the case for want of jurisdiction]. o Two readings of McCardle o The McCardle rule Support for the broad power of Congress to limit the jurisdiction of the lower federal courts and the Supreme Court. Its a general grant of power. (Hornbook reasoning). This reasoning has been used to support unsuccessful efforts to assert extensive congressional power over the jurisdiction of courts in order to control substantive results of court decisions on controversial topics like reapportionment, subversive activities, and school busing. If this was true then reduces the effect of Marbury. o There is other Congressional authority out there, another route to the same end. If Congress had repealed both acts them we could assume the hornbook reasoning. (When read with Yerger). Last line of McCardle It does not affect the jurisdiction which was previously exercised. Judge was aware the Judiciary Act existed as an independent way around the jurisdictional issue. o Constitutional support Article III, section 2, clause 2

 In all cases affecting Ambassadors, other public ministers and consuls, and those in which a State shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall (2) Jx Stripping: (a) Traditional View: Congress can change supreme cts appellate or lower federal cts jx in any way it chooses as long as it doesnt do so in a way that violates some specific constitutional right (b) Opposing view: Congress cant use its power to change cts jx in a way that would -Too much undercut the enforcement of any constitutional right -Interfere too much w/judicial branches performance of the essential functions it was intended to perform E. Texas v. White: Art 13, original jx. Normally okay, but depends on if TX was a state at time of lawsuit. Technically, TX wasnt. Facts: In 1851, Congress authorized the transfer of $10 million worth of United States bonds to the state of Texas. The bonds were payable to the state or bearer and were to be redeemable in 1864. In 1862, during the war of rebellion, an insurgent Texas legislature authorized the use of the bonds to purchase war supplies. Four years later, the reconstruction government tried to reclaim the bonds. Issue: Was Texas a state in the union eligible to seek redress in the Supreme Court? Could Texas constitutionally reclaim the bonds? Conclusion: In a 5-to-3 decision, the Court held that Texas did indeed have the right to bring suit and that individuals such as White had no claim to the bonds in question. The Court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature--even if ratified by a majority of Texans--were "absolutely null." Even during the period of rebellion, however, the Court found that Texas continued to be a state. QoD: Do you think Const should be interpreted so that state would be permitted to secede if did so peacefully w/support of majority of state? Keeping states together is the purpose of why we unitedwe are the united states of am., but this does go against our national identity of freedom and individualism. V. Constitutional rights after Civil War: A. Slaughter-House Cases: 1873; 13th & 14th Amendments. (Reconstruction Amendments) (re-read notes!!) Monopoly in granted to one New Orleans slaughterhouse, all others had to close), first case to interpret 14th A. (a) 13th A. doesnt apply, that refers only to personal servitude (b) Privileges or Immunities Clause refers only to those national P&I that are fundamental, here only a state privilege is concerned, 14th A. doesnt apply: PI only affected US Citizenship rights. (i) Miller relies on Corfield v. Coryell (old) (upheld NJ law restricting access to oyster/clam bed on coast to NJ residents), interpreted Art. IV 2 Privileges and Immunities Clause (citizens of each state are entitled to privileges and immunities of citizens in the several states), but misquotes, says of instead of in, makes it sound like the P&I belong to only the state in question,

(ii) Nullified the P or I Clause forever. (iii) Ct defines a pretty limited set of things relating to American citizenship (c) Due Process Clause, held: not deprived of property w/o due process of law, interest in performing their occupation was not part of their property, a substantive (not procedural) due process claim (i) Bradley argued that choice of occupation was part of their liberty, they were deprived of this w/o due process of law. (d) Equal Protection Clause, solely intended to strike down Black Codes in the South, rejects claim that laws where treating them differently than the butchers whod been granted the monopoly. Ct looks at intent, not the language of clause. Rostrons Notes: (e) Art. 4 is really an anti-discrimination clause, not a substantive issue. constitutional provision there alluded to didnt create those rights, which it called P&Is of citizens of states. Its sole purpose was to declare to the states, that whatever rights you grant to your own citizens, the same, neither more nor less shall be measure of rights of citizens of other states w/in your jx. (i) Dissent: In his dissent, Field -- a Lincoln appointee who was nonetheless a Democrat and a staunch opponent of Radical Reconstruction -- was not arguing for a stronger federal role in the enforcement of civil rights for blacks, but rather strenuously opposing the ability of states to maintain broad economic regulatory powers, which he feared would allow them to abridge individual property rights. Although the Court's decision in the Slaughterhouse Cases has never been explicitly overturned, during the late 19th and early 20th centuries an ideologically conservative Court would adopt Field's judicial views, interpreting the Fourteenth Amendment as a protection not of civil rights but of economic liberties. Fields thought 14th amend does protect citizens of US against deprivation of their common rights by state legislation, if it didnt, it was a vain and idle enactment, which accomplishes nothing. (f) External Notes: Analysis The majority in Slaughterhouse insists that the recent ratification of the Fourteenth Amendment is fresh within the memory of us all, but that did not help the majority avoid contorting the text of the Amendments first section or nullifying rights. Absent in the majoritys historical analysis of the Fourteenth Amendment is a discussion of the Amendments impetus, the Civil Rights Act of 1866, and more broadly, an understanding of the Fourteenth Amendments purpose. The Civil Rights Act of 1866 was written to protect emancipated slaves from discriminatory state laws enacted after the Civil War known as the Black Codes. Because the federal government did not currently possess the authority to enact the Acts provisions, Congress ratified the Fourteenth Amendment in order to enforce the Act. The Act was meant to protect the ability of all citizens to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. In light of the Acts provisions, and the construction of the Fourteenth Amendments first section, part of the Amendments purpose becomes clear: to alter the nature of citizenship and guarantee federal protection of certain civil rights mentioned in the Civil Rights Act of 1866. The Slaughterhouse majority fails to consider either of these purposes, mistakenly assuming a separation between

federal and state citizenship, and misreading what in part composes the privileges or immunities of federal citizenship. It is necessary to provide the analysis of the Amendment that the majority did not. The Fourteenth Amendments citizenship clause, which guarantees that All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside, appears immediately before the privileges or immunities clause. The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state. Logically, the privileges or immunities of federal citizenship that are in addition to the privileges or immunities guaranteed by state citizenship must be determined. Had the Court decided to look to the origination of the Clause, which would be helpful as the ThirtyNinth Congress indicated that the Fourteenth Amendments privileges or immunities clause secured nothing beyond what was intended by the initial use of the phrase in Article IV of the Constitution, the Court in Slaughterhouse would not have had to prescribe their own meaning to the phrase. The Court in Slaughterhouse looks to Justice Washingtons decision in Corfield v. Coryell to determine the historic meaning of the privileges or immunities of federal citizenship, a reasonable action. But the Slaughterhouse majority misread both the holding in Corfield, and the meaning of privileges or immunities. Justice Washington describes the privileges and immunities mentioned in Article IV Section 2 of the U.S. Constitution as being in their nature, fundamental; which belongs, of right, to the citizens of all free governments. Justice Washingtons holding distinguishes these fundamental rights from the benefits of being a citizen of a particular state, and reflects the initial understanding the American colonists had of the phrase, which was codified in their respective colonial charters. Given this, along with the violations of the fundamental rights of African Americans at the state level that attracted federal protection, and the purpose of the Civil Rights Act of 1866, the inclusion of the privileges or immunities clause in the Fourteenth Amendment seems to be for the purpose of securing the fundamental rights protected by the clauses initial use, and the civil rights mentioned in the 1866 Act. The Slaughterhouse majority does not conclude this meaning because their contortion of the Fourteenth Amendments citizenship clause led them to misread the Corfield holding concluding incorrectly that the phrase privileges or immunities meant alwaysthe class of rights which the State governments were created to establish and secure and do not include fundamental or civil rights. The Slaughterhouse majoritys misreading would open the door to the doctrine of substantive due process and as a result, has brought a machete to intellectually honest constitutional law. (g) Bottom Line: Ct interprets these new amendments in narrow fashion so as not to change power relationship bw state & fed. B. Yick Wo v. Hopkins: 1886; Equal Protection under 14th amendment; facially discriminatory San Francisco ordinance prohibited laundry operations in non-brick/stone buildings, could get permit for wood buildings, 79/80 permits granted went to whites, all 200 Chinese applicants denied; only possible explanation for discriminatory effect is purpose to deprive Chinese of ability to operate laundry, racial hostility is impermissible purpose for law. (1) Ordinances confer not a discretion to be exercised upon facts of case, but a naked & arbitrary power to give & w/hold consent; so, no unconstitutional statute, but being applied unconstitutionally.

(2) Immigrants entitled to equal protection of 14th amendment C. Civil Rights Cases: These cases are all founded on the first and second sections of the act of congress known as the Civil Rights Act, entitled An act to protect all citizens in their civil and legal rights. Its obvious that primary and important question in all the cases is constitutionality of law; for if law is unconstitutional none of the prosecutions can stand. (1) Does Congress have power to make this law in either the 13th or 14th amendment? No (a) 14th: - Congress cant regulate private acts. 1st section is prohibitory in nature, it nullifies any state leg or state action that violates civil rights. The last section allows congress to enforce legislation, no authorize Congress to create a code of municipal law. (i) So, until a discriminatory state law is passed, no legislation can be called into activity. If Congress were allowed, under 14th to use legislation to enforce 14th, its difficult to see where it would stop. (b) 13th: -doesnt apply to private actors, just says cant own slaves. P argues that denial of equal accommodations & privileges is a species of servitude. 13th allows direct & primary legislation operating upon the acts of the individuals (i) Does the refusal of accommodations, w/o sanction or support from state law, inflict a manner of servitude? No, it would be running slavery argument to ground if we broadened it here. Af Ams need to take rank of mere citizen. (c) Fed govt is trying to do something abt discrimination, but cts strike it down. In an ideal worked, wed outlaw discrimination, but Congress doesnt have the authority under 14th to outlaw racial discrim. BUT what law is perfect? Whats wrong w/trying? When cts enforce private agreements that allow discrimination, arent they essentially allowing slavery? D. Plessy v. Ferguson: Eq Prot 14th amend 1 rail car for whites, another for blacks; govt. has interest in maintaining public comfort and order; means are applying customs and usages of Louisiana people including segregation; if this makes blacks feel inferior it is only because they interpret it that way, 14th A. guarantees political equality, social equality must come from natural affinities of the two races. (1) Is 1890 Act constitutional? Yes, Separate doesnt = inferior; separate but equal provision of private services by state govt is constitutional under Eq. Prot Clause 14th (2) This is similar to civil rights cases, except this is STATE mandating it, so clearly govt discrim. But, Ct isnt really ready to end discrimination.

VI. The Lochner Era: Assessment of Art 1 s. 10 throughout different eras Pre Lochner Era: Sup. Ct. rejected the idea that the Due Process Clause could be used to invalidate government economic regulations

Era of Laissez-Faire Constitutionalism: From 1897-1937, Sup Ct used due process clauses of 5th/14th amend, applied substantively, to hold unconstitutional various state and fed laws that abridged right to liberty of K. Traditionally, Lochner decision has been condemned as egregious instance of judicial activism; might be seen as a desire to further interests of rich capitalists, misrepresenting original meaning of due process clauses to assist laissez-faire ideals, also known as social Darwinism The Lochner Era cts used inflexible formalism that neglected social realities, while New Deal used a forceful pragmatism that was sharply attuned to social and economic change. Thus, Lochner Cts imposed Laissez-faire conservative values through its interpretations of natl power and Due Process Clause, while New Deal brought flexible and practical notions of natl power that were necessary to protect public interest. A. Lochner v. New York: Liberty of K is different than K clause Lib of K was 1890s -1937 to prevent govt from interfering w/ks that already exist; K Clause is Art 1 s. 10 (also in Fletcher case); Lochner bakery operator convicted of working more than the law mandates: 60hrs (1) Does statute interfere w/right of K bw employee/er? Is act valid as labor law? (a) Yes, 14th am: no state can deprive person of life, liberty, or prop w/o due process except somewhat vaguely termed police power relating to safety, health, gen welfare of pub. (b) So, state has some power to prevent Ks & Const offers no protection, where reasonable & necessary. -BUT, theres no reasonable grounds for interfering w/occupation of baker. It isnt an unhealthy occupation? But what about breathing flour, ovens all daymaybe help cleanliness. Overall, the limitation has no substantial effect on health of employee as to justify this as a health law. (c) Rule: No retroactive enforcement of Lochners Ks (as against K clause); only fix Ks prospectively. (i) Ks help economy, if (d)This case wasnt famous right away, but later became emblematic of its time. Sup. Ct. struck down a bunch of economic laws on basis of liberty of K. (2) External Notes: -Established principles followed until 1937; Freedom of K was a right protected by the Due Process Clause of the 5th and 14th Amendments -In this era maximum hours, but not minimum wage, legislation for women was deemed an appropriate use of a states police power; Ct upheld Hardy: no limiting mine workers to 8hrs/day, except im emergencies where life/prop is in imminent danger. -The judiciary should carefully scrutinize legislation to ensure that it truly served such a purpose -Very limited deference to legislative judgment during the era B. Hammer v. Dagenhart: Narrowly construes commerce clause; new era of fed reg in business. Cts concerned w/economic mattersleave businesses alone (side note: article 1 states 18 things that Congress can enact) Congress passes a law with two sets of child-labor rules: a stricter one for the primary sector (mining), and a less strict one for the secondary sector (manufacturing). Unable to directly make labor laws, Congress instead prohibits the interstate or foreign transport of goods within thirty days of its production/extraction produced/extracted at a site violating the statutory provision.

(1) The act doesnt require prohibiting use of interstate commerce to effect the evil intended. Instead, act aims to standardize ages at which kids may be employedthe goods themselves are harmless. The grant of Congress over interstate commerce wasnt intended to destroy power existing & preserved to states in 10th amendment (2) Though its desirable to have uniform labor laws across states, the maintenance of the authority of the states over local matters must remain w/them. (3) This is a fairly narrow approach of commerce clause; State govt wouldve had a better time prohibiting child labor; Sup. Ct wont let Congress use interstate commerce in an indirect way.

(4) External Notes: Commerce Clause (Article I, 8, cl. 3) Does Child Labor Act, considered without reference to powers delegated to the states, "transcend" the regulatory power delegated to Congress? As a "prohibition" instead of a mere "regulation," is it too ham-fisted to be constitutional? Does the Act even primarily regulate commerce, or the goods themselves? (Commerce, to contemporary conservative jurists, did not embrace either production or consumption of a commodity). Does the Act encroach on Police Powers, which Amendment X leaves delegated to the states? Or is Marshall right that the Commerce Clause is "complete in itself" subject to none but express constitutional limitations, even if the clause's exercise incidentally touches state police powers? III. Holding The Court votes, 5-4, to void the law. Congress can't even obliquely subject production, and with it labor conditions, to its authority. IV. Reasoning Justice Day, for the court The Commerce clause's doctrinal waters seem muddy, but demonstrate a pervasive logic That is, "prohibition" is a rare subset of "regulation;" the power to prohibit is teleologically-subordinate to the power to regulate. Congress therefore faces a heavy burden of proof in rationalizing a ban on transporting items. The law isn't about the regulation of goods-transport Rather, the law "aims to standardize the ages at which children may be employed in mining and manufacturing within the states" (BLBAS 442). The goods to be consumed in other states, or abroad, are harmless in themselves. Therefore, unlike in the Lottery Case, Congress' therefore aims at local, state-level concerns, not national ones. And doesn't that entail an encroachment on police power? Congress' own justification proves the law's unconstitutionality The general government argues that the child-labor-law disparity of the civilized North and barbarian South unfairly disadvantages Northern capitalists, who suffer higher labor costs. If this were granted as an overriding interest, then what of every single other cause of economic inequalities between the states? Then, of course, states' power of internal police would be voided, and with it federalist contract theory natural to the Constitution. V. Concurrences and Dissents Justice Holmes, dissenting. Because the Court is but nine people deciding for a majority, the Court should restrict its analysis to the law's "immediate effects" and not invalidate it on "some collateral ground" (444). The law immediately acts on the traffic of goods, not the shop-floor. "Regulation means the prohibition of something" (444). The conservative majority, which preaches formalism and is willfully blind to empirical facts, fabricates the distinction between the two concepts Any valid exercise of the Commerce Clause may incidentally-interfere with states' own policies. (Think back to Gibbons). This doesn't prove anything as far as constitutionality is concerned. If the Court judges the dissemination of lottery tickets to be injurious enough to justify Congressional interposition, but says the opposite for child labor isn't it usurping the role of the legislature?

The law is majoritarian in that it expresses the well-established revulsion of Americans to child labor. Now, a state majority may think differently yet "the state [at her boundaries] encounters the public public policy of the United States which it is for Congress to express" (499). VI. Significance Hammer v. Dagenhart is emblematic of Lochner-Era jurisprudence. But, even with the spate of Republican Supreme Court appointees in the twenties, the case didn't stay precedent for long; the New Deal intervened. Marshall's view of the Tenth Amendment as declaratory, combined with Holmes legal realism which demands that the judge defer to evolving public opinion, determining the "path of the law" carried the day. B. Home Building & Loan v. Blaisdell: Overarching Theme: How much do real life crisis, or events affect interpretation of Constitution?...whether its a civil war or natl emergency. (4 horseman, 3 muskateers vote) Facts: MN Mortgage Law: provided relief to debtors by postponing foreclosure sales & extending period of time after a foreclosure that person could redeem prop. State upheld this as an emergency measure. (1) Does this exceed power of state per clause of Const. prohibiting impairments of obligations of Ks? (a) Where constitutional grants & limitations of power are in general clauses, its essential to fill in the details. Const. shouldnt be construed to prevent limited & temporary interpositions w/respect to enforcement of Ks if made necessary by fire or flood; that power cant be nonexistent when the public need is produced by economic cause. -BUT Const was written in time of need. BUT, Marshall said, its a constitution were expounding & its to be adapted to the various crises of human affairs. BUT, they couldnt take away free speech, could they? (2) Overall, MN was in state of emergency & law was meant to protect society as a whole; mortgager is not to be left w/o compensation.