Con Law Outline Done Isabelle PDF

Assignment 1--Biblical Background Major Takeaway: Scripture does not clearly say what system of government is best, but there are established rules for governance in the bible. - Justices Thomas and Scalia: Both Roman Catholics--but they differ: - J. Thomas: If human law is in confli...

Assignment 1--Biblical Background Major Takeaway: Scripture does not clearly say what system of government is best, but there are established rules for governance in the bible. - Justices Thomas and Scalia: Both Roman Catholics--but they differ: - J. Thomas: If human law is in conflict with the eternal law, thomas will follow the eternal law. Eternal law trumps the constitution. Though Thomas has never acted on this/had to act on this (J. Thomas’s view is consistent with Thomas Aquinas’ view). - J. Scalia: (positivist) Believes in God’s law but believes judge’s job is to act only on whether the law is consistent with constitution, not whether it violates the eternal law. It is the job for the legislature to make laws consistent with the eternal law - Whether the law is consistent with the constitution only - Thomas Paine: Seems to suggest Monarchy was inherently evil. Kings take things and become tyrants. Kings are bad representative governments are good. - Excerpt from Common Sense--an advocacy piece advocating for democracy instead of a monarchy--trying to convince the people that monarchy goes against God’s desires - Origin of monarchy was a rejection of God’s rule - Having a king takes away people’s direct line to God. - Does God prefer a specific form of government? - Book of Judges: - Pre-monarchy Israel God directly governed the people through human agents called Judges (they were God’s mouth pieces--but their was a strong conviction among the people that judges were not the rulers) - Israel was not necessarily a great place before monarchy was established - Turning away from God, disobedient. Would get smited and then be obedient then disobey again, over and over again - Cycle: idolatry/disobedience→ God’s wrath→ repentance→ restoration - Judges 19: Time before the king was very bad. There was horrific evil, homosexual rape, concubine raped and cut up into 12 pieces. - Horrific Evil - Judges 21-25: “in those days Israel had no king; everyone did as they saw fit” - 1 Samuel - 1 Samuel 8: Kings take things and use people. - Appointment of a king was a rejection of Israel’s leaders and God himself - Turning away from a direct God ruled government and wanted a human ruler - Takeaway: Debate wasn’t about monarchy v. Republicanism it was about theocracy v. human Government. - Leaders advancing on self interest over that of others. - Not about God’s preference of Democracy/Republicanism to Monarchy - 1 Samuel 10: In spite of chapter 8, God anoints a king - 2 Samuel--God provides for the monarchy - David is anointed as king. Israel unified around David. Ark comes to Jerusalem. David takes on aspects of Melchizedek’s priestly kingship. God promises David a great royal “house” ←(talking about the coming of Jesus) - Principles of governance from the bible - Romans thirteen suggests government is a system ordained by God. Government is an institution to punish wrongdoers. God wants us to have government. Remember Romans thirteen was written when we had Nero, so government does not necessarily have to be godly for the people to be expected to submit. - See Romans 13: 1-7 God ordains civil rulers and wants us to submit (in general). - Government is God ordained--Government is a good thing in a fallen world - Submit to the governing authority. Human government is a good thing. - Genesis 1: Tells us every human being is special--because we all bear the image of God. Many governments have throughout history treated people as fungible parts. The U.S. Constitution denied the sanctity of human life allowing for slavery. - We are all unique and important. Government must protect all people. We have individual rights. - Genesis 3: Can’t count on goodness of any one person to give you could government. Self interest may reign. (  Madison-separation of power so if any one person/agency/branch tries to take over they will be rebuffed. Need to have a division of power to protect against the sinful nature of man - Theme of the fall as seen in Genesis, and also Romans idea is we are all tainted by Sin. No one can be trusted with unchecked power. - Need institutional protections against tyrants - 1 Corinthians 14: God is a God of peace, order, and truth, not chaos and relativism - A God honoring system will not bring chaos. Will not elevate others above the law. - Proverbs 31: Speak up for the poor and needy - Micah 6: act justly, and to love mercy and to walk humbly with your God - Matthew 22: justice, mercy, faithfulness. Church and state as separate institutions (NOT “strict seperation”) - Exodus 18: push government down to the local level and only the big stuff should come up to the top - Jacobs says that Moses appointing judges as a defense of federalism. i.e. Delegating authority to make decisions at the local and state level with the highest decisions reserved for those at the top. - Federalism seems to be alluded to here - Isaiah 33:22 God as our 3 branches of government, God is all three (need never separate because God is just). In God’s Government there is no separation of powers but we need them separated in human law. _____________________________________________ Assignment 2--Originalism/Textualism v. Living Constitution - The Constitution is a written document--Should affect how we consider it - England started out fractured with varying customs and traditions--small local rule until the common law came along. The common law was the legal system that United England. - Starts from the bottom up. Building precedent one after another dealing with every type of law. - Problem with the common law= rigidity and it’s hard to change. Requires judges. Judges are the most undemocratic figures - The fact that it’s hard to remove judges makes it undemocratic--potential for tyranny - England responded with the creation of parliament/the legislature. The rule was made that statutes trump the common-law. Parliament is supreme. Hypothetically parliament if it felt inclined could repeal the Magna Carta.--no trumping documents, all laws could be changed by the legislature - American founders didn't trust the legislature of judges unchecked--so they placed the constitution as the supreme authority--provided restrictions on what government may do - During the colonial. The Founders found that even having a legislature over judges is not enough. Legislation made by elected representatives potential for Tyranny was less. - The constitution is there to protect people and to be the supreme law of the land - How to interpret Constitutional Law: - Originalism/Textualism: 1) the Constitution is a written legal text, the context of which is determined by the meaning of its words when they were enacted into law, which content remains unchanged until such time as the document is lawfully amended. - The const is a written doc and we interpret words at the time the words were enacted - Scalia: using constitutional interpretation model moves us away from the constitutions laws - Interpreting the documents in the way you want compromises the documents integrity. - Constitutional interpretation model leads to us pick judges for the bench based off of their political beliefs - Biggest weakness of originalist model: cant change the constitution without an amendment (which requires a lot of support)--this can cause injustice. - Jacobs says Brennan would say that the amendment process is great but has happened rarely. Amend if you can. But if you can’t put more meaning… Reading into what we have. Decency - Living Constitution: 2) the Constitution is a document that establishes a vision or set of aspirations for the American Society, so the specific meaning of the document must change as times and circumstances change (without the need to use the amendment process and without regard to the understood original meaning of specific words), in order to meet the needs of modern society and accomplish greater justice, equality, and empowerment of individuals. - Const is a vision/set of ideals for society and should change to meet needs of modern society - Human dignity, rights, and freedom are supreme - Brennan: Believed in the living Constitution. Why? - Words are ambiguous and we can’t know the original intention - Pragmatic effects Constitution serves as a blueprint and social ideal. - Brennan was very practical. We know more about human dignity than they (the Founders) did. I.e. slavery. We should not be limited by the founders worldview  - Biggest weakness of living constitution: - Majority rule can pick the laws we are governed by - Originals would say that the danger of change lies and danger of a few justices. Scalia would say this is very dangerous. Originalists would say letting judges make all the decisions reverses progress and puts us back to common-law state. - Paulson Article: Bill Clinton Article - Why do some parts of the constitution live and change and why do some parts stay stagnant? - How do we interpret a written constitution? - Originalist v. living constitution - Originalist--must amend const to change - Originalists say letting judges make all decisions reverses progress and puts us back to the common law state. - Living constitution--judges can mold constitution to fit modern needs - Paulson Article: Interpretive force of Const.’s secret drafting history - Main issue of the article: Can these records be used by an original meaning textualist? - The secret drafting records were private and kept so because the founders didn't want he public to know every little argument they had - These records weren’t found until 1.5 centuries later - Originalism: what is the original meaning of the words used (objective meaning/public meaning) - The original meaning textualists focus on what the words originally meant. Not focusing on the subjective meaning of the words but instead how they were understood by the public. (Original public textualism). - For originalists the proper role of the secret drafting records is more central to the debate over what should count as competent, faithful constitutional interpretation - How the words and phrases, and structure (and sometimes even the punctution marks!) would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted - Must look at the meaning of the words at the time of ratification - When consulting extra-textual support, the “second-best” (persuasive but not mandatory) sources of original public meaning include: - 1) the public (and sometimes private) writings of the federalists and antifederalists - 2) the public debates of the state ratifying conventions - 3) the early congressional, executive, and judicial interpretations of the constitution - 4) The works of early commentators on the constitution - 5) and perhaps the secret drafting history of the constitution - C: thus we do believe that there is a single, “true” method of constitutional interpretation, at least within the enterprise of applying the constitution as authoritative, binding law. That method is textualism: The interpreter who applies the constitution as law must be bound by the meaning of the words and phrases written down in the text - Original intent, to original understanding, original meaning - intent=what the founders subjectively intended (page 50) - understanding= what the ratifiers objectively read the words to mean (page 51) - meaning= Original meaning, however, asks not what the framers or ratifiers meant or understood subjectively, but what their words would have meant objectively how they would have understood by an ordinary, reasonably well informed user of the language, in top context, at the time, within the relevant political community that adopted them. This is, in theory, an objective test, with historical evidence relevant at the somewhat less direct level of helping to clarify the meaning of the words, as opposed to being relevant at the direct level of actual mental states. (page 54) - Ordinary Public Meaning - Original textualism: a method which searches for the ordinary public meanings that the constitution's words, read in linguistic, structural, and historical context, had at the time of those words’ origin - Unconstitutional means contrary to original meaning of the document that was ratified by 9 state as of June 21, 1788, or in a simpler formulation, at variance with the constitution's original public meaning _______________________________________________________________________________________ Assignment 3: Let's read the documents - Declaration of Independence - Declaration of Independence. At least theistic reference to God/creator/law of nature. - Theism in D of I, but no adherence to particular beliefs. God talk but very general - Clear indication that there was a god/divinity - Self evident truths, inalienable rights--rights above the government’s truth  - What would law of God look like without law of nature? Jacobs answers perhaps Iran. - They did believe in God/divinity. Obeying honoring pleasing God. - Every human being has inalienable rights. That can’t be taken away Jacobs emphasized this point. - Clear focus on addressing the need of respect for the opinions of mankind - The declaration is kind of an open letter to the world. Letting the world know why we were attempting to leave England and become free and independent. - At one level it was a PR piece to the world. - Starts with the self-evident truth (implies there is a truth) ( self-evident meeting not requiring proof. No reasonable person would argue against them) - There are self evident truths--they don't need evidence/proof - No reasonable person would argue against them - The middle section is offenses by the King. This is very much like an advocate writing a brief (giving the causes for separation from England). - Were these offenses enough for separation? (general consensus is no (though he does not say in class) - Does the declaration have relevance? It is not what is guiding government. It is part of our panic Law. Kind of like a corporation how corporations have articles of incorporation Prior to adopting bylaws (you can’t run a corporation just on the articles of incorporation) - The D of I does not tell us how to run the country but it is a declaration of our country’s existence. - Jacobs told us to think of it as the articles of incorporation of the United States. - If this is a valid way of thinking about the declaration then as in the corporation’s bylaws can’t override articles of incorporation they have to be read together. - bylaws cant overrule foundational document - Therefore, the constitution cant overrule the D of I - Very few courts cite the D of I Articles of Confederation - The articles of Confederation were our first attempt at bylaws. - Biggest struggle was→ were we one nation or 13? - The A of C said that both the nation and the states were sovereign (We tried to say both that we were a sovereign nation composed of thirteen states) - This was more of a treaty between the states (league of friendship) - - Problem was that this gave no authority to the state governments and not enough power for national government - Huge problem with the AOC is that it skewed the balance way over towards state sovereignty. With little power for the federal government. - Most people were trying to find some balance. - Made on authority of the states. We the people expressed retention of state sovereignty. - There was no executive branch nor judicial branch. There was only a legislative branch. - The Pres. was just a presiding officer (what we would call a speaker of the house) - legislature→ Each state received only one vote. - Term limits and no pay for congressmen - States could wage war--Troops all belonged to the states. (General officers may have been under the central government)- There were term limits for elected officials. States retained sovereignty. The national government was very weak/ineffective. Constitution - The convention in 1787 was originally meant to amend A of C (but in turn they create the constitution instead (following our corporation analogy--we threw out one set of bylaws and adopted another). - Some organizers realized beforehand that the whole document would be scrapped. - There was significant controversy as to whether it would be ratified. - Keep in mind that at this time in the national government was powerless - Some wanted to remain sovereign (“anti-Federalists”) the Federalists foresaw the dangers of the pendulum swinging too far to the national government (Jacobs as a side note mentioned how this name was forced on them) - Anti-federalists (jefferson, mason): constitution gave too much power to the national government. They were pro stronger state government/sovereignty. - Believed in balance as a good thing but worried it will eventually allow the national power to encroach upon  state government - The pendulum swinging occurred beginning with the Civil War = loss of any claim by the states that they can secede from the union - The new Deal by FDR - The expansive reading of the commerce clause - Now we have much stronger national government than anticipated - The Federalists (Madison, Hamilton, Jay) wanted to ratify the Constitution. They wanted dual sovereignty. Sovereign made up of sovereigns. Wanted a stronger National government than the one provided for by the A of C.- The Founders crazy idea was that we could maintain a certain level of sovereignty in the states but also a national government that is sovereign. Federalism refers to the balance between the national government and the states. - Dual sovereignty was a unique idea in world political history, this idea of a sovereign covering sovereign - As a side note: if federalism today means more sovereignty in the states then the Federalists of today would really be antifederalists. Essentially the past terminology does not line up with today. - Debates at the convention involved q’s about representation--VA resolution v. Rhode Island resolution and q’s of slavery (punt it down the road) - States like Virginia and New York wanted representation by population Delaware and Rhode Island wanted an equal representation - Great compromise was that the Senate would be equal representation the house of representatives would be based on census. - Slavery was a huge issue - Cotton farming agrarian society. North had to face it all out. Essentially, the slavery bucket just kept getting kicked down the road. - 3 references to slavery: - 1) 3/5ths compromise--Article 1, Section 3 (purely a political compromise) - Article 1 section 3 the compromise. The North did not want the slaves counted at all. South wanted all the slaves counted. Number was made up/negotiated/ No connection with anything in reality it was a purely political compromise. - The effect of the 3/5th is that it skewed more representation in the House to the South. - Electoral College - Senators + Representatives=# of electoral college reps - Skewed in favor of southern slave owners - Skews H of R to the south - Causes the Presidency to be skewed towards the southern view - In those days the electoral college selected the Pres. (rather than nowadays where the vote is by the people). - The vast majority of Presidents were therefore proslavery. The south dominated the presidency with very few Yankees being the Pres. Presidents support and appoint judges. Therefore, if the Pres.’s proslavery owner he appoints proslavery judges. This was a long term lasting effect of the compromise. - 2) No ban on slave trade for 20 years - Article 1 section 9. The migration or importation of any persons - for twenty years Congress cannot ban the slave trade. - 3) Article 4, sec 2--Fugitive slave law The articles of Confederation were entered into by the states. Constitution begins with we the people. = getting authority by the people directly → sent to the ratifying conventions in the states (not the state legislature (at least not in their normal capacity) (may have been some of the same people).) ____________________________________________ Assignment 4: Marbury v. Madison and the Power of Judicial Review Who has power to interpret the constitution? (balance between the branches) Modern thought says the SC has ultimate say - judicial review says that the constitution trumps statutes and laws contradictory to the constitution The Federalist No. 78 - The duty of the SC is to follow the constitution, as the supreme authority, and to disregard statutes if they are contrary to the constitution - Whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and  disregard the former - Judicial branch is the weakest--neither force nor will, but merely judgement - The judiciary, from the nature of its function will always be the least dangerous to the political rights of the constitution, because it will be least in capacity to annoy or injure them - Courts also don’t go out and find public policy. It is brought to them. They have neither sword nor purse(no longer true) - Side note: However SC now has both force and will - (The executive gov always backs them up) - Now has a will because people recognize it is easier to change public policy by making the supreme court rule on a case. Advocacy is now adopted as a tool by mostly every one. - The Court’s docket is now almost entirely discretionary. Almost everything gets a cert. petition. Gives the Supreme Court ALOT of Power. - The interpretation of the laws is the proper and peculiar province of the courts - The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body - Permanent tenure necessary because: nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty - Good behavior/life time tenure is crucial to the impartiality of judicial decision making--keeps judges bound to the constitution and not to political passions Background to Marbury v. Madison - Election of Jefferson to Presidency, succeeding his foe, Adams - During lame duck session, congress passes Judiciary Act of 1801, adding new district courts, circuit courts, justices of the peace and additional judges to each circuit. - Adams appoints judges to fill these new seats in the newly created courts--called “Midnight Appointments” - Marbury appointed to justice of the peace position→ (not an article three judge, but more of an executive/judicial hybrid) though his commision was never delivered by the outgoing secretary of state( John Marshall serving as Secretary of State applied the “seal” Marshall was also a Supreme Court Justice), the new secretary of state refuses to deliver commission- Marbury petitions for a writ of mandamus to receive his commission Notes from the Video: Marbury v. Madison - Petitions court to ask court to issue a writ of mandamus--that court would order madison to deliver marbury’s commision, under theory that commision was signed, sealed, and therefore valid - Filed in SC - Court says statute invalid for creating jurisdiction in the SC, therefore, statutes cannot overrule constitution - MOST IMPORTANT PART: Court suggests that if statute or act of president goes against the constitution, then the constitution will trump - Duty of judicial department to say what the law is. - If a law is in opposition of a constitution and the court has to decide between statute and const then SC will determine that the constitution trumps - Law that conflicts constitution cannot be followed - Constitution is the supreme law of the land - THIS IS DIRECTLY OUT OF FED 78 - BUT ALSO: The SC creates judicial review--that if pres or congress takes action in conflict with const, then court has a duty as an independent co-equal branch, has a duty to follow the constitution and not the unconstitutional actions of the other branch - The SC cannot have original jurisdiction in cases not specifically allowed by the constitution, they can only have appellate jurisdiction in cases that are not specifically provided for in the constitution - SC has original jurisdiction for public ministers and consuls, or when the United States is a party to the case - In M v. M there is no original juris for this type of case, the SC only has appellate juris. But constitution allows exception when “provided for by congress”--that's where jurisdiction is provided for - Therefore court can say that the statute is unconstitutional - Article 3 section 2 = jurisdiction of Supreme Court (original) - All other cases our appellate jurisdiction. - The Secretary of State at that time was not a consul or ambassador and no State  was a party to this case. - Court says act is unconstitutional and therefore the constitutional must control - The key here is that the statute was unconstitutional in that it tried to give the Supreme Court original jurisdiction. - Marshall’s view was one of constitutional supremacy (the constitution is the supreme law) interpretive independence of the three branches. - Jacobs is not sure: - The conventional wisdom that is that in Marbury v. Madison Marshall was a political genius: rather than outright saying that the statute was unconstitutional Marshall went through the entire analysis of why Marbury should’ve one and received his commission. Jefferson did not challenge this precedent of judicial review because he had in fact won. - Paulson Article--Marbury’s Wrongness - Understand Paulson’s critiques - Issues: - First: Inconsistencies between when commision becomes effective. If delivery of commission does not change the legal significance of the commission then why does delivery matter? IF commision is legal upon signature of the president, then why does delivery make any difference for Marbury? Either he was appointed and he does not need delivery, or he wasn't appointed before delivery and then he isn't entitled to commission. Court seems to graze over this without really dealing with this issue - Second: this isn't an article three judge, this is a justice of the peace (its an executive branch appointment). Then Jefferson has the right to fire him because exec can fire anyone he appoints - Third: Paulsen suggests Mandamus isn't the appropriate remedy. Ordering employer to employ employee isn't the appropriate remedy. The appropriate remedy is monentary damages. Should have ordered payment/damages, not mandamus - Fourth: Marshall was a clear player in the case!!!!!!! - How on earth can Marshall decide this when he caused the problem. Jacobs stated that this is “terrifically wrong” a violation of judicial ethics for him to sit on this case and he should have recused himself. - Mandamus is not an American concept, but an English one that really only works when the branches are not separate entities- Fifth: Was there really a conflict between the statute and the constitution? - Article III, § 2: (Federal) Judicial Power extends to: - Cases in law and equity - Cases affecting diplomatic personnel - Cases of admiralty and maritime - Controversies where US is a party - Controversies between mult states, of state and another party (diversity jurisdiction) - SC SHALL HAVE APPELLATE JURIS IN ALL OTHER CASES EXCEPT: - Under such regulations and exceptions as the congress shall make - The judiciary act of 1789 provides such an exception to appellate review, so is this inconsistant with the constitution? - There really isn't a conflict between statute and constitution if read differently: - If statute isn't providing any new original jurisdiction OR - If constitution does not forbid congress from moving appellate juris to original juris - Paulson argues these are the clearer more natural readings of the statute and the constitution - Sixth: a supreme court justice creating a huge power establishment to SC--this is abominable, not praiseworthy. He sacrificed justice for power - (jordan wrote this as number 5): Looking at the conventional wisdom and the praise Marshall receives for this judicial misdirection: Marshall sacrificed Marbury for judicial review and if true Paulson says this is a reprehensible abuse of the judicial office and not something to admire if he in fact manipulated his ruling. - Jordan had this for six: irrepressible review of Marbury. Judicial review is correct. ( I marked the time as twelve minutes left on the video) - Paulson Article: The irrepressible Myth of Marbury - Judicial review component of Marbury is right - The constitution trumps actions of other branches - Stare decisis in a constitutional case is unconstitutional--should be looking to Const each time, not what the prior decision said {{{{{ Jacobs agrees here}}}}}}  - SC justices must Follow constitution, not what the SC has previously stated (Their Duty is to the Constitution)- Argues that each branch has the duty to uphold constitution, not what other branches say--so each branch can interpret the constitution - The logic should be extended to the Pres. where the Pres. should not follow the Supreme Court when they act unconstitutionally the same goes for Congress. - Do they not all (all three branches) have a duty to follow the Constitution - Argues this won't be very chaotic, will take time in public arena to determine meaning - Paulson goes against conventional wisdom and says that SC should not “own” the interpretation of the constitution, because M v. M really does not say that SC has final say of constitution any more than the president or congress does SC does not clearly have the right to final say of the constitution ____________________________________________________________________________________ Assignment 5--The National Bank and McCulloch v. Maryland Who owns the constitution of the US? Who gets to decide what the constitution means? These chapter two readings are designed to make you ponder whether SC truly owns the constitution - The modern belief is that it belongs to the SC - Other branches are bound by the SC’s interpretation - Paulson says Marbury v. Madison does not give the SC final say, why doesn't it give congress and the president final say at all? - Paulson says if you can get beyond the “irrepressible myth” then you see the text of the document controls over incorrect interpretation by another branch. Should their be a federal bank? (Today known as the federal reserve) - Hamilton big proponent of the national bank - He believed in a strong national government - And sees a key element being a national bank - Believed in a centrally controlled economy - Jefferson was more focused on state sovereignty and didn't want a national bank - Jefferson wanted the states to have more power - Madison = evolved into a state sovereignty guy - Q is: Does the national government have power/ constitutional authorization to create a national bank? - Debate regarding the power of congress - If the SC is final say, then all we have to do is read McCulloch v. Md - But at founding it wasn't clear that the SC had final say - Judicial supremacy v. Departmentalism - Each branch has final say over constitutional interpretation of the abilities of each branch - Interpretive independent and coequal branches of government - Articles 1 to 3 nothing said one branch was subordinate to the other - Does the constitution give national government the power to establish a national bank? - Art. 1, sec 8: Has to do with money and the economy but nowhere does it say we can create a bank - All but two of these are now irrelevant - Is a bank necessary and proper to carry out these powers? - Article 1, section 8: Big general powers→ but specific means of accomplishing is broad but specific actions designated- #18 Necessary and proper clause - If there is a power to do something you can do anything necessary and proper to do so. - → how much more can we do? - Power to lay and collect taxes - Power to borrow money on credit of the US - How far does the Necessary and proper clause expand congress's power? - Does it mean what it takes to carry out essential needs? - Or does it mean what will make it better for congress to carry out duties? - If we view it is essential → that the power is not expanded as much. The Founders clearly intended necessary and proper to expand power the question is how large is the expansion - National government: government of limited enumerated powers  - Cannot act unless constitution grants it power to act - 10th amendment--default setting: that states have sovereignty unless the constitution specifically designates the right to the national government or prohibits the states from such power - In other words States may regulate unless there is something stopping them from regulating (such as the Constitution). - Bill of rights includes the first 10 amendments. The first 8 are individual rights amendments 9&10 are structural. - 10 = reserves power to the states. Default presumption unless there is clear acknowledgement of national power then you default to the states. “All legislative powers herein granted“(meaning if the constitution does not grant it then it is not a power of the national government. James Madison: Speech in Congress Opposing the national bank - I: Is the power of establishing an incorporated bank among the powers vested by the constitution in the legislature of the house?- Dismisses 3 clauses that could be construed as allowing a bank - 1) the bill for a national bank does not come from the power to lay or collect taxes--it laid no tax whatsoever - 2) the power of congress to borrow money--it does not borrow any money. Must be read in its plain language - 3) necessary and proper clause-- It has to be NECESSARY (meaning essential). A national bank is nothing but convenient - Must be necessary to achieve the specific power (not just convenient) - Necessary must mean essencial/needed - But these terms are clear and should be interpreted as so - We cant read the constitution to give unlimited rights to congress - Takes a narrow reading: Why? Because it would lead to unlimited power in the national government - C: If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy. - Jordan’s words: There is a danger of an inference which leads to a runaway government. Jefferson--Opinion of Secretary of State - Narrow view of necessary and proper--to take a single step beyond the boundaries thus specifically drawn around the powers of congress, is to take possession of a boundless field of power, no longer susceptible of any definition - Taxing power--congress is not to lay taxes for any purpose they please--but only to pay debts or provide for the general welfare-- the general welfare cannot be detached from the first half of the clause--to lay taxes. Cannot just provide for the general welfare, but the taxes may be taken to provide for the general welfare - Necessary and proper clause: these powers can be carried to execution without a bank. A bank therefore is not necessary, and consequently not authorized by the necessary and proper clause - Necessary--without which the grant of power would be nugatory - #18--all powers not delegated to us nor prohibited by states, are reserved to states - Gives too much power to congress---Unlimited national power - Why would we write a list if necessary and proper could encompass all of them? - necessary=power destroyed (rendered nugatory) if the action is not taken\ - Jefferson says: President, you have a duty not to sign if the bank is unconstitutional. But if you aren’t sure, you must defer to your coequal branch (legislative branch) and sign (not veto) - Read aloud to us (page 125) “ therefore was that the Constitution restrained them to the necessary needs, that is to say, to those means without which the grant of power would be nugatory” Hamilton--Opinion of Secretary of the Treasury - Every power vested in the government is in its nature sovereign, and includes, by force of the erm, a right to employ all means requisite and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society - The degree in which a measure is necessary, can never be a test of the legal right to adopt it--that must be a matter of opinion; and can only be a test of expediency. - This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense ought to be construed liberally, in advancement of the public good- In favor of the national bank - Necessary=convenient, helpful, connected with convenient to. - He took a very broad reading to the meetings necessary - If congress believes it has power to do something, the president should go along with it  - The relation between a mean and an end - read aloud to us: (page 125): to deny that the Government of the United States has sovereign power, as to its declared purposes and trusts, because its power does not extend to all cases, would be equally to deny, that the State governments have sovereign power. - Not a question of how necessary, just that it is necessary - Useful or not, cant look at the percentage of necessity - read aloud to us: on page 127 “there are few measures of any government, which would stand so severe test. To insist upon it, would be to make the criterion of the exercise of any implied power a case of extreme necessity; which is rather a rule to justify the overly being of the bounds of constitutional authority, than to govern the ordinary exercise of it… = take away is that the test should not be extreme necessity - Washington ends up siding with Hamilton and signs the bank into law and the bank is reauthorized under Madison. McCulloch v. Maryland (reread each case before the test) - Marshall (the author of this opinion) would make big sweeping generalities which are used by modern judges for broad interpretations - McCulloch was a cashier/official - Md passes a law taxing all banks in the state unless chartered by Md, that leaves one bank→ the national bank’s baltimore branch - Q1: is the national bank legally in Md at all? Whether bank is necessary? - Does the national bank fall under the power of Congress? If not legal than it can be taxed by Maryland. - An idea of this case that Congress derived its authority by convention. - Maryland was of the opinion that if we the states gave sovereignty to the federal government and with the states can determine we give authority for banks. - The Supreme Court said NO - Constitution and national government are sovereign over the states - States cant take from national government - Md cant control the national government’s powers - Md argues that necessary=essential - SC says no, necessary=convenient, helpful, useful. Not merely essential. They took a broad reading, broad scope for Congress to determine its powers - read aloud to us: an often quoted phrase from MARSHALL (page 139) “let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” - Marshall was viewing the writing as EXPANSIVE. further arguments that congress is going beyond the powers of Congress will be an uphill battle for now on. - #18 adds another power therefore it adds to the powers - Not to the court to determine the degree of necessity: SC says, if congress thinks it's necessary than SC will bend to congress's belief of necessity - Extremes: - 1) all that makes congress’s job easier - 2) only essential to operation - This case expands federal power, seems to upset the balance of power - The 10th amendment seems to say that the default assumption that state has power unless proscribed national government or prohibited - Bank is found to be constitutional - May Md tax it? No, you cant tax the national government - Judicial review is correct, but it does not mean all other branches have to defer to such authority - Principals: 1) Constitution supreme to branches 2) Three independent coequal branches a) None must defer to the other 3) Oath of officer a) Uphold the constitution, not the views of any of the other branches - The most ownership of constitution really seems to come from the oath of the office of the president - Really shows necessity not to deer to one of the other branches of government Andrew Jackson, Veto Message - Departmentalist view - Each branch has independent interpretation ability (three independent – coequal branches each having final authority on the Constitution) - Just because SC ruled that it does not mean that the president is bound by precedent - Each branch has final authority to determine conditionality - Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the states can be considered as well settled - Each public officer who takes an oath to support the constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the H of R, of the senate, and of the president to decide upon the constitutionality of any bill or resolution which may be presented to them for passage of approval as it is of the supreme judges when it may be brought before them for judicial decisions. - The opinion of the judges has no more authority over congress than the opinion of congress has over the judges, and on that point the president is independent of both - C: the authority of the supreme court must not, therefore, be permitted to control the congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve- The degree of necessity is a question exclusively for legislative consideration. (142) It is the province of the legislature to determine whether this or that particular power, privilege, or exemption is necessary and proper to enable the bank to discharge its duties to the government, and from their decision there is no appeal to the courts of justice - It cannot be necessary to the character of the bank as a fiscal agent of the government that its private business should be exempt from that taxation to which all the state banks are liable, nor can i conceive it proper that the substantive and most essential powers reserved by the states shall be thus attacked and annihilated as a means of executing the powers delegated to the general government - C: the act before me seems to be a wide and unnecessary departure from these just principles _______________________________________________________________________________________ Assignment 6(a)--Departmentalism or Judicial Supremacism Cclass began to recap: 1. All are subordinate to the U.S. Constitution. 2. 2. Three coequal branches neither has to defer to the other they have independent and equal interpretive authority3. The oath of office is about upholding the Constitution not opinions or presidential agendas. a. All federal employees have to take an oath but is the President who has the oath on steroids he asked to not only follow it but also to protect it. (page 145). Who decided whether the constitution granted the power to incorporate a bank? Congress? The president? All three? All of the following acts were enormously controversial The alien friends act - Even if from a friendly country, the president can deport or jail a foreigner (without due process) - ACT: President… [can] at any time... order all such aliens as he shall judge dangerous to the peace and safety of the US , or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government, to deport out of the US - Any alien ordered to depart who does not can be imprisoned for a term of up to three years and shall never be admitted to become a citizen of the US The Alien Enemies Act - the Pres. can make broad generalizations and suspend due process for citizens of enemy nations - Can deport/jail a person from a warring country at any time, need not even name the person - If at war with a country, the president shall make public a proclamation of the event of the hostile nation, then all males over the age of 14 residing in the US and not naturalized, those people shall be liable to be apprehended, restrained, secured and removed, as alien enemies The Sedition Act - Cant stir up sedition, or criticize the government--it's a crime - Cant conspire against government, or impede the operation of a law - Cant write, print, utter or publish, or cause to procure, or assist in, anything defaming the government - Criminalized malicious writings against the president or congress, but not against the VP--because Adms didn't like JeffersonThe VA Resolution - States have the right to reject what the federal government is doing - States as a union of states can declare the laws unconstitutional - How many states? No measure given--some level of power - If not authorized by the constitution, then the state can declare unconstitutional - Duty of the states to hold the national government in line  - Argument of check on the federal government - This is a writing drafted by James Madison for Virginia. In it they layout the Virginians as loyal to the government at the same time this is them pushing back begins with a view as expansive Federal Government overreaching its constitutional limits. At the end of the document Madison refers to a pledge of mutual friendship. This essentially is the general assembly reaching out to the other states requesting them to stand with them and their opposition to the expanse of the Federal Government. ( I read this as a we are not happy piece). The Kentucky Resolution - Power of nullification - States can determine the constitutionality of federal acts, opinions, and orders - Present examples→ Kim Davis on same-sex marriage - The states, being sovereign and independent, have the unquestionable right to judge of its infraction and that a nullification of all unauthorized acts is a rightful remedy - Although KY as a party of the federal compact, and will bow to the laws of the union, it does at the same time declare that it will not now, nor ever hereafter cease, to oppose, in a constitutional manner, very attempt, from what quarter soever offered, to violate that compact Jordans notes: should the state government be able to look at an action of the Federal Government and say the acts are unconstitutional? This is a “state” in the sense of nationstates or like NATO rather than the idea of where all one nation. (Pulled from page 150) the states have the power to defy actions of the Federal Government, if those actions violate the Constitution? This is sometimes called “interposition and nullification.” “Interposition” refers to the right of the states to protect their interests from federal violation deemed by those states to be dangerous or unconstitutional. “Nullification” is the theory that a State can invalidate a federal law that violates the Constitution. In most recent history, those doctrines are remembered as being argued by Southern states fighting against desegregation in the civil rights movement, so they generally lead a bad taste in People’s bounds.” Lincoln and the Privilege of the Writ of Habeas Corpus - Maryland is a crucial for the success of the union, or else DC would have been stuck in enemy territory - Maryland takes a vote for succession with union guards standing by - Merryman was rousing confederate sympathy - Sues for unlawful imprisonment - Argument by Lincoln that he had the right to suspend habeas corpus due to rebellion/insurrection - Habeas corpus suspension was written in article one--congress therefore has the right - But congress was not in session - (page 155) “the privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it” - Jordan’s notes have that this article was written in passive voice of the subordinates like it was Congress sued cited - `generally article one provisions state actively that “congress shall have the power to... “ - Interestingly, this power is not stated as “congress shall have the right to suspend the writ of habeas corpus” - It was Congress who should decide whether we are in rebellion. Congress had evacuated DC. Lincoln refuses and followed the departmentalist approach. - Lincoln’s rationale was even if he didn’t have the power he had to do in any way to preserve the United States - Chief justice Taney says Merryman had the right to habeas corpus - Lincoln says, up yours Tauney, the constitution does not specifically specify that it belongs to congress - Basically says, What are you going to do about it Tauney? - Departmentalism approach being presented  (jordan will need a breakdown of this) Ex Parte Merryman - Taney--the power to suspend the writ of habeas corpus belongs to congress - President does not have such power to suspend it Abraham Lincoln, Message to Necessary must mean essencial/needed Congress in Special Session - The border states favor a policy called “armed neutrality”--arming the states to prevent either side from passing through--this however cannot happen - For under the guise of neutrality, it would tie the hands of union men and freely pass supplies from among them, to the insurrectionist, which it could not do as an open enemy. At a stroke, it would take all the trouble off of the hands of secession, except only what proceeds from the external blockade--it is nevertheless, treason in effect - But the constitution itself as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion. ____________________________________________ Assignment 6(b)--Federalism: Is national Power Unlimited - Does the SC bind itself? Stare Decisis is the method of the common law (you don't change the law unless needed). Can the Supreme Court break precedent? - It is unconstitutional for the SC to follow precedent (stare decisis), its duty is to the Constitution not to precedent - Does stare decisis apply for constitutional cases? The United States Supreme Court seems to think so. The court follows stare decisis. Jacob says this is wrong. --- while a Supreme Court’s judges justices duty is to enforce the Constitution. Stary decisis in a constitutional case involves knowingly misinterpreting a case because an earlier court messed up. The test of stare decisis is if you know an earlier court messed up but followed it anyway. To do so would violate a judge’s oath of office. - Stare decisis entails knowingly disregarding constitution in favor of earlier courts screwed up opinion Planned Parenthood v. Casey - It is common wisdom that the rule of stare decisis is not an “inexorable command,” and it certaining it is not such in every constitutional case. rather , when this court reexamines a prior holding, its judgement is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case, - Bizarre and influential holding [jordans note: this was a major constitutional ruling for this court and the court wanted to maintain precedent.] - Sought to overrule Roe v. Wade--Thought this would happen because each supreme court justice had at one point or another said Roe v. Wade was wrongly decided - However majority affirmed Roe v. Wade - Two of whom had said Roe v. Wade was wrongly decided - Have to uphold precedent to show power of the court--otherwise reversing precedent undermines the Supreme Court’s power - C: although Roe has engendered opposition, it has in no sense proven “unworkable” representing as it does a simple limitation beyond which a state law is unenforceable - No change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it - A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court’s legitimacy, and to the nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today. - “Our analysis would not be completed… Without explaining why overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of the nation dedicated to the rule of law.”( page 158). - The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives - A state's interest in the protection of life falls short of justifying any plenary override of individual liberty claims Lawrence v. Texas - Makes homosexual sodomy legal - Court is asked to overturn Bowers v. Hardwick holding that there was no constitutional right to engage in homosexual sodomy. - Scalia dissent: - Todays approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive” decision) if: (1) its foundations have been “eroded” by subsequent decision; (2) it has been subject to “substantial and continuing” criticism; and (3) it has not induced “individual or societal reliance” that counsels against overturning - The problem is that Roe itself--which today’s majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as bower Three criteria for overruling precedent--when to disregard stare decisis - Today’s approach to stare decisis invites us to overrule and erroneously decided precedent (including an “intensely divisive” decision) if: - (1) its foundations have been “eroded” by subsequent decisions; - (2) it has been subject to “substantial and continuing” criticism; and - (3) it has not induced “individual or societal reliance” that counsel’s against overturning. The problem is that Roe itself – which today’s majority surely has no disposition to overrule – satisfies these conditions to at least the same degree as Bowers. - This was the same exact setup as Casey, BUT the majority overrules the prior precedent instead of upholding it - Why? Policy reasons. That's it. They follow stare decisis only when it favors their desired outcomes - Takeaway: the SC does not really believe in stare decisis - Will use it or ignore it for pragmatic, outcome oriented reasons - Jacob says: no one on the court truly believes in stare decisis they just use it as an excuse to overrule cases they don’t like. - Sidenote: justice kennedy always seems to side with the downtrodden. - Scalia--to tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in casey. It has thereby exposed casey's extraordinary deference to precedent for the result-oriented expedient that it is (page 163). (scalia on page 161 uses past decisions by the same members of the court to criticize the majority) Paulson--Captain Kirk - Constitution rendered unintelligible--SC justices badly mangled the words of constitution - Holy document for priests only to interpret - In other words if only the USSC can interpret the constitition (belonging to the priests in robes) then the meaning becomes skewed / lost overtime. - Proposals to get this out of priest's hands 1) Eliminate doctrinal jargon in judicial opinions--Write straight-forward intelligible opinions that everyone can read and understand 2) Eliminate the pernicious doctrine of stare decisis--Stare decisis should be done away with 3) Decentralize and desacralize constitutional decision-making by recognizing the propriety of independent constitutional decision making by recognizing the propriety of independent constitutional judgement by the other branches of the federal government--Each branch has the right to do their own constitutional review; Executive and legislative review4) Examine whether the same reasoning might not well support independent constitutional judgment by state government officers--State nullification 5) Reinvigorate the jury as an instrument of popular interpretation of the constitution--Jury review of constitutional law ____________________________________________ Assignment 7--Federalism Commerce power and issues will be on midterm and final What does it mean to have a sovereign nation composed of sovereign states? States have sovereignty from national government - States are not political subdivisions (like counties or cities). (Point made that counties and cities could be abolished or overruled at any time) (there is no independent sovereign power in the city or county states are absolutely sovereign under them. The relationship between the US and the states are different.) - We are all under two sovereigns: - States: police power--to legislate for the common good - Federal government: only the limited enumerated powers - Worldview clash about federalism. You can largely divide into: - Two camps: 1) Federal→ obsolete, world commerce and interconnectedness  Global world - the basic idea is the federalism is outdated. It was fine in the 1780s when communication traveled were slow. However, today we communicate instantly transportation is very fast. In today’s world we have global commerce we no longer have the luxury of fiddling around with the laws of states. We need to act as one voice and abolish competing sovereigns making states instead into political subdivisions. 2) Federal→ states should push back on the national government ○ Basic ideas that we need sovereign states to protect ourselves against a potentially tyrannical government. Balance comes from two pushing against one aggressor. Executiv Judicial Legislative Original States (1) - When we asked do we still have federalism? We are asking the states have as states still any effective way of joining the debate. - Two things that damaged federalism: 1) 17th amendment: direct election of senators→ senate no longer represents the views of the state (Jacob says the theory was that it was just good to vote for things and no one thought maybe letting the states have a voice was a good thing) a) Primary interest of senators (pre 17th amendment) was to protect the interests, not of the people generally, but of the states qua states b) Now senators are no longer beholden to state legislatures i) No longer can the senate be counted on to vote against proposed legislation that interfered with state sovereignty 2) Jordan’s class note “Senators no longer represent state interests unless they think it is high profile.” now we see folks moving around to be elected to the Senate. This carpetbag are sort of thing is where national politicians try to find seats. Most Senators view themselves today as national politicians. 3) We have mostly Lost the idea of limited enumerated powers→ federal government can regulate nearly everything--via interstate commerce  a) expansion of national power from limited/enumerated to a nat govt that has essentially unlimited power (jordans note: if supreme in regulation and can regulate everything the government is then supreme) b) Exponential increase in the perceived powers of the national government i) The short list of powers has come to be viewed as very close to unlimited powers y the middle of the 20th century ii) Expansion left the states with no real sovereignty except where the national government chose to allow state action iii) This expansion came primarily through the re-imagining of the “interstate commerce” and “necessary and proper clauses” of article 1 sec 8 Commerce used to mean buying and selling good - (commerce as a term has changed since the 1700s. For example manufacturing, mining, milling was not commerce. Commerce used to mean the power to regulate buying and selling of goods across state lines. This is no longer so. Commerce can now apply to virtually everything. - Creating is not commerce, only when you sell the good Years for commerce clause before-1937, 1937-95, 1995-present KNOW and be able to distinguish these eras Gibbons v. Ogden - National licence to operate steamboat= Gibbons - NY licence to operate steamboat between NY and NJ= Ogden - State law cant overrule national law, but the q is whether the national law is valid. Does Nat govt have right to do this to allow steamboat moving people and goods between states? - This is a rather small dispute (by our lens today)--though language used by SC is VERY BROAD - Today almost anything financial / done for money is viewed as commerce - Commerce for the founders meant very specifically--buying and selling goods - You have widgets, I want widgets, I pay you money for widgets. That is what commerce meant. Agriculture, mining, manufacturing was not commerce. Commerce followed manufacturing, mining agriculture etc. Across state lines. - Power of congress to regulate the buying and selling of goods across state lines - A free trade agreement among the states--to avoid tariffs on goods - Any tariffs on goods would come from congress - Commerce for modern day means anything done for money, business, occupation, even practicing law is engaging in commerce, anything that has an economic impact - Issue in Gibbons: Nat licence v. state licence. Gibbons said congress can regulate interstate transfer/delivery of goods and the national licence purpose was for bringing goods across state lines - Ogden said NO. Congress can only regulate the actual sale transaction - Ogden wanted the more limited view of the commerce clause - Can congress regulate only the sale of goods or is it sale of goods and DELIVERY? - (Obviously today the commerce clause is very broad) - Gibbons wins - This instrument [the constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. - Strict constructionist argument--Those who framed our constitution and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said - It is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know no reason for excluding this rule from the present case. - Commerce, undoubtedly, is traffic, but it is something more--it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse - Marshall viewed navigation/transportation as within commerce power. - All america understands, and has uniformly understood the word “commerce” to comprehend navigation - The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself  - Will read commerce clause broadly and give deference to congress--whatever congress thinks is related to commerce, they can regulate - C: Commerce does include power to regulate transportation. SOLELY INTERSTATE COMMERCE, not within a state- C: Necessary and proper clause--this limit on the means which may be used, is not extended to the powers which are conferred; nor is there one sense in the constitution ,which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rue. We do not, therefore, think ourselves justified in adopting it. - Power to regulate transportation of commerce interstate - The words used in the constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation, is as expressly granted, as if that term had been added to the word “commerce” - The power of congress, then, comprehends navigation, within the limits of every state in the union; so far as that navigation may be, in any manner, connected with “commerce with foreign nations, or among the several states, or with the indian tribes”. - DISSENT: Justice Johnson - Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labour, transportation, intelligence, care and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulationUS v. Dewitt - I: has congress the power, under the constitution, to prohibit trade within the limits of a state? - Fed law--misdemeanor to mix some lamp oils and sell them--even if selling locally--its an illegal transaction - Court said no, cannot regulate, congress does not have power to regulate INTRASTATE commerce, congress power only kicks in when goods cross state lines - Cant save act by saying its related to the taxing power - Court in this period is taking a limited approach to commerce clause - Court took a textualist approach in this era. - “This express power has always been understood as limited by its terms” p. 187 - In the case before us, no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has any relation to taxation at all, it is merely that of increasing the production and sale of other oils, and consequently, the revenue derived from them, by excluding from the market the particular kind described. - This consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate and plainly adapted means for carrying into execution the power of laying and collecting taxes - C: standing by itself, it is plainly a regulation of police... As a police regulation, relating exclusively to the internal trade of the state... it can have no constitutional operation - This statute is unconstitutional US v. E.C. Knight Co. - Sherman anti-trust act--to break up monopolies - Sugar refinery all within one state--PA - Saying this law cannot apply to them when they are refining the sugar--it's not commerce when they aren't selling it- I: whether conceding that he existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of congress in the mode attempted by this bill - Contracts to buy, sell, or exv=change goods to be transported among the several states, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purposes of such transit among the states, or put in the way of transit, may be regulated , but this is because they form part of interstate trade or commerce - Not interstate--nor commerce (remember agriculture/manufacturing was not commerce in the understanding of commerce)- States have police power--fed government does not - That which does not belong to the national government under the commerce clause is within the police power of the state - No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce: - Manufacture is transformation - If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that congress would be invested, to the exclusion of the states, with the power to regulate, not only manufactures, but also agriculture , horticulture, stock raising, domestic fisheries, mining--in short, every branch of human industry  - Conclusion: Commerce follows manufacturing, therefore manufacturing is not a part of commerce - Fed government can't do anything about this PA refinery monopoly - This involves neither commerce nor the crossing of state lines. Not regulable by the U.S. government this was an issue for PA to address. - DISSENT: the citizens of the US are entitled of right to buy goods in the state where they are manufactured, or in any other state, without being confronted by an illegal combination whose business extends throughout the whole country, which by the law everywhere, is an enemy to the public interest, and which prevents such buying, except at prices arbitrary fixed by it - Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one state to another, may be reached by congress under its authority to regulate commerce among the states - Discretion to the legislature in such that it allows congress to conduct in a manner most beneficial to the peopleChampion v. Ames (The lottery case) - Maj and dissent from EC Knight, flipp in this case********* - delivering lottery tickets across state lines - C: That the carrying of lottery tickets from one state to another is commerce which congress may regulate; and that as a means of executing the power to regulate interstate commerce Congress may make it an offense against the US to cause lottery tickets to be carried from one state to another - We are of the opinion that lottery tickets are subject to traffic and therefore are subjects of commerce, and the regulation of the carriage of such tickets from state to state, at least by independent carriers, is a regulation of commerce among the several states - In determining whether regulation may not under some circumstances properly take the form or have the effect of prohibition,, the nature of the interstate traffic which it was sought by the act of May 1895, to suppress cannot be overlooked. When enacting that statute congress no doubt shared the views upon the subject of lotteries heretofore expressed by this court - Gambling affects the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple--no state may bargain away its power to protect the public morals, nor excuse its failure to perform a public duty by saying that it had agreed, by legislative enactment, not to do so - But surely it will not be said to be a part of anyone’s liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the states an element that will be confessedly injurious to the public morals - The possible abuse of power is not an argument against its existence--p. 194 - C: Congress may prohibit the carriage of such tickets from state to state and that legislation to that end and of the character is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to congress - Maj: It is the sale of a good across state lines, we don't care what the purpose is we will uphold it - Congress might pass a law having the effect to keep the channels of commerce free from use in the transportation of tickets used in the promotion of lottery schemes - Maj writer in EC Knight (Fuller) is now the dissent in this case - DISSENT: Fuller is asking, why is congress regulating the cost of the lottery tickets? - Congress wants to ban lottery - This case looks more like a police power rather than regulation of commerce--really here govt is prohibiting what they consider is morally bad - Looking at purpose of congress's act (was regulating a commercial market not stopping something morally bad. To ban lottery is not commerce power but instead, the police power) - The power of the state to impose restraints and burdens on persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the constitution, and essentially exclusive, and the suppression of lotteries as a harmful business falls within this power, commonly called, of police - To hold that congress has general police power would be to hold that it may accomplish objects not intrusted to the general government, and to defeat the operation of the 10th amendment Hammer v Dagenhart - Child labor act 1916 (progressive era) lots of abuses going on - Does not ban child labor but it makes it illegal to engage in commerce across state lines in goods created by child labor--but does not mean selling goods within the state(Intrastate allowed interstate illegal). - Congress and states want to help fix the abuses - So they pass this act  - In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended - There is no power vested in congress to require states to exercise their police power so as to prevent possible unfair competition. Many causes may cooperate - Isn't this similar to the lottery case? But here the court finds the statute unconstitutional - This is not a regulation of commerce but the attempt to stamp out something bad, thus police power--which they can't have - Court saying can't use interstate commerce power as a back door to ban something congress cannot otherwise ban - The commerce clause was not intended to give congress a general authority to equalize such conditions - The grant of the commerce clause was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and manufacture - The tenth amendment still applies, cant disregard it - C: thus the act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend. The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at and in, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed. - DISSENT: the act does not meddle with anything belonging to the states. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line the are no longer within their right - It seems to me entirely constitutional for congress to enforce its understanding by all the means at its commandSchechter Poultry Corp. v. US - Deals with the new deal--SC is trying to strike down a lot of these major policies enacted through statute - This deals with the centerpiece of the new deal--the national industrial act (dealing with cartells) - Seems unfair to mom and pop shops alot of pushback - The sick chicken case - Code of fair competition set up in chicken industry - Have to buy group of chickens as a lot or not at all - Jewish merchants buying according to kosher laws - Can't follow this code and still be within the kosher laws - Local sale after chicken cross state laws - Slaughter house isn't commerce (Chickens come into NY in interstate commerce but from thereon out they were NY commerce staying in NY) - Sell to local people - These people aren't doing interstate commerce at this point - No direct effect on interstate commerce - Slippery slope if we allow regulation of this→ resulting in no limit to the fed government's power - Modern day congress can regulate anything - This is the last gasp of SC to limit the commerce clause - When defendants had made their purchases, whether at the West Washington Mkt. in New York City or at the railroad terminals serving the city, or elsewhere, the poultry was trucked into their slaughterhouses in Brooklyn for local disposition. The interstate transactions in relation to that poultry then ended. Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers in butchers who, in turn, sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce. - The undisputed facts thus afforded no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a “current” or “flow” of interstate commerce, and was thus subject to congressional regulation. - The mere fact that they may be a constant flow of commodities into a State does not mean that the flow continues after the property has arrived, it has become co-mingled with the mass of property within the state, and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased.  - Affecting interstate commerce: - There is a necessary and well established distinction between direct and indirect effect. The precise line can be drawn only as individual cases arise, but the distinction is a clear principle. - Direct effects are illustrated by the railroad cases - But where the effect of interstate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprise and transactions which could be said to have an indirect effect upon interstate commerce, the fed authority would have embraced practically all the activities of the people - There would be virtually no limit to federal power - The authority of the federal government may not be pushed to such an extreme as to destroy the distinction between commerce and the internal concern of the states - Congress necessary embraces the right to control their interstate operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to secure the freedom of that traffic from interference or unjust discrimination and to promote the efficiency of the interstate service - (203) the power of Congress extends not only to the regulation of transportation’s which are part of interstate commerce, but to the protection of that commerce from injury. It matters not that the injury may be due to the conduct of those engaged in intrastate operations. Thus, Congress may protect the safety of those employed in interstate transportation “no matter what may be the source of the dangers which threaten it.” _________________________________________________________________________________________ Assignment 8--power to regulate interstate commerce--1937-1995 FDR wins re election Landslide victory and Congress has maj democrat (felt they had a mandate from the people) - FDR exasperated because SC keeps striking down his New Deal plan - Often 6-3 so not close rulings at all - So comes up with court packing plan - Adds new justice for each justice over 60/70 yrs old - Which would have given FDR immediately 6 new appointments - Thus these new guys could turn SC opinions in his favor - Congress has power to add more justices to the court, but this kinda smelled to a lot of people, even FDR’s supporters- Got a lot of push back from congress - In 1937--SC essentially reversed policies and caved to FDR’s policies, FDR began winning in SC - Eventually FDR replaces all 9 justices over the course of his presidency--a switch in time that saved the 9. - The SC switched its policies so FDR didn't pack the court NLRB v. Jones & LAughlin Steel Corp. (page 206) - Fed labor law trying to regulate workers in this town - This case seems clearly beyond reach of fed government--manufacturing (not selling/not commerce at least in the old approach as earlier defined) within one state - Not within scope of commerce clause - HOWEVER, SC says this act is a proper exercise of commerce clause - Congress claiming an unlimited power to regulate economy (see page 207) - But SC says no, it's less than that - SC not going to give a list of things congress can regulate, so not limiting congress at all - Yellow highlight on p. 208 - The court is still giving lip service to direct vs indirect effects they are just reading the idea of direct effects more broadly. - Essentially overruling most of these earlier cases--but being subtle and claiming the court is still working within frame of federal government and not throwing all of the limits out of the window. - Affecting commerce--allowing argument for indirect commerce (that was clearly not accepted in earlier years) - C: that the act is not a true regulation of such commerce or of matters which directly affect it, but on the contrary has the fundamental objects of placing under the compulsory supervision of the fed government all industrial labor relation within the nation - The cardinal principle of statutory construction is to save and not destroy ---------------------------- - (page 208 begin quote) The critical words of this provision, prescribing the limits of the Board’s a