I. The Constitution
a. Document and its plan of government (federalism):
a. Treaty model: articles of confederation
i. sovereignty remains with state except powers delegated to central body (congress)
ii. each state had one vote
iii. powers limited to war and foreign affairs
iv. did not operate directly on the people but as directives to states
v. unable to arbitrate between states disputes
vi. reliant on states good will; good will did not exist
b. National model: never tried
i. similar to France. One central government, no states
ii. provinces instead – provinces derive power from national government.
c. Federal model:
i. Provisions of the model:
1. States remain sovereign
2. no authority needed from fed to pass laws
a. can pass any law not prohibited by constitution
3. powers congress can use (authorized by constitution)
a. congress must be authorized by constitution to enact a law
b. federal law can operate directly on individuals
4. tie breaker between state and fed law is supremacy clause (Art. 6 §2)
b. Legislative Power and federalism
i. McCulloch v. Maryland 1819
1. issue I: does congress have the power to create a national bank?
2. issue II: is it constitutional for the state to tax federal land (i.e. the bank)
a. Issue I: constitution gives congress the power to make all laws necessary and proper to execute the enumerated powers (Art 2 sect 3)
i. enumerated powers (Art 1 sect 8) include:
1. lay and collect taxes
2. borrow money
3. regulate interstate commerce
4. raise and support armies
ii. three arguments J. Marshall makes to support creation of the bank and necessary and proper clause
1. textual argument: meaning of necessary w/in “necessary and proper”
a. retains “useful or convenient” (instead of “absolutely required”)
b. obviously expands federal power
c. b/c necessary and proper is placed among the powers of congress instead of the limitations on congressional power, it was meant to expand powers
d. framers would rather disguise the expanse of power than the limitation of power.
2. Implied powers argument: constitution must have certain implied powers even in absence of n&p clause. Constitution is legal framework, not a legal code, flexibility needed to make it last.
b. Issue II: taxation by state.
i. Supremacy clause says individuals cannot control an institution created by fed (and thus by the people).
ii. Purpose of taxation is also important; MD attempted to harm the bank through taxation.
iii. BLL: States cannot regulate the Federal government.
c. Executive Powers
1. Art 1 sect 7, veto can be overridden by 2/3 vote in each house of congress.
2. Art 2 sect 2-5, enumerated powers of pres (see constitution).
3. Art. 2 sect 2: commander in chief of armed forces. Cabinet appointments and lower level appointments. Pardon power
4. Art. 2 sect 3: state of the union. Receive ambassadors. “Take care that laws be faithfully executed.” Commission all officers of U.S.A.
ii. Steel Seizure case 1952: Truman tried to take over steel mills to prevent a labor strike.
1. Rule: Black reads the commander in chief powers as stopping at the U.S. Border. President only has military powers outside of U.S. Boundaries.
1. Needed statutory or constitutional approval, didn't have either.
2. Three ways the president can act (J. Jackson's opinion):
a. Pres. Acts with express or implied congressional authority
b. Pres. Acts in absence of congressional approval
c. Pres. Acts contrary to express or implied will of congress.
3. Steel seizure case falls under the third (and min. Pres powers) category
a. Under the necessary and proper clause congress can control the implied powers of the president (“under the any other officers” language).
b. Black's approach was textual, Jackson's approach was structural
iii. US v. Curtiss-Wright 1936: Pres can act w/o congressional approval in certain international situations.
iv. Dames & Moore v. Regan 1981:
v. Pres makes deal with Iran, arms for hostages, Iran files suit to unfreeze Iranian assets held in the U.S.
vi. In effect Pres is ordering courts to dismiss cases U.S. Citizens had against Iran. Citizens had won judgments against Iran in U.S. courts.
1. b/c of the history of congressional approval of executive agreements, falls under implied congressional authority (cat. A).
2. Art 6 clause 2, supremacy clause: treaties will be treated as the supreme law of the land. Equal weight as a statute passed by congress.
3. Executive agreements do not have the force of a treaty automatically, only w/ approval of congress. (given here b/c of the implied approval)
d. Individual Rights
i. D.C. v. Heller 2009: Wash. D.C. Gun laws overturned.
1. Limitations which are ok with Scalia:
a. especially dangerous weapons
b. felons and the mentally ill
c. sensitive places (schools, govt buildings)
d. concealed carry laws
e. commercial sale conditions
2. general right to possess fire arms for militia and self defense purposes upheld, with the above exceptions
3. Textual Analysis of 2nd Amd.: the Prefatory and Operative clauses
a. Operative: “the right of the people” compares with 1st and 4th amendments. All people included in these amendments and in the constitution generally. Does not mean a subset of the population.
i. “keep and bear arms” – is it a phrase? Implying a military term of art. Broken down though it looks more fundamental.
ii. Scalia says it's meant to be broken down.
1. Right – of the people – to keep (arms)– and bear (arms)- arms
e. Judicial Power
i. Marbury v. Madison 1803: Marshall secures power for supreme court in interpreting the law (and therefore the constitution)
ii. Marshall did not recuse himself
iii. Court reviewed the merits of the case before rejecting for jurisdictional grounds
iv. BLL: statute rules over common law doctrine. SC can overrule statute. Statute and treaties are equal so the last one enacted is valid.
v. Martin v. Hunter's Lessee 1816:
vi. Disagreement over who owns large tract of land. Ownership dates back to English CL.
vii. BLL: SC has appellate jurisdiction over state courts, otherwise federal laws would not be uniform throughout the states.
viii. Cohens v. VA affirms Martin.
II. Congressional Power and limits of Federalism (the commerce clause)
A. Congress has the power
i. “to regulate commerce – w/ foreign nations – among several states – with indian tribes
a) Commerce =
· commercial intercourse
· beyond just buying and selling, includes movement of goods
b) Among the several states =
· between two states – or –
· inside a state but affecting other states
c) Regulate =
· prescribes that congress has plenary power to govern commerce
ii. McCulloch-like argument, congress removes local obstacles to interstate trade, if it affects the several states' economies.
B. Limitations on the Commerce Power
Pre-1937 commerce clause cases:
i. Champion v. Ames 1903: congress prohibited the interstate trade in lottery tickets
· but, Commerce clause can't be used as pretext for passing social/moral regulations on states
ii. Hammer v. Dagenhart 1918: child labor in N.C. Congress does not have general police power.
1 Argument based on pretextual reasons (above)
2 Regulation of manufacturing doesn't equal regulation of commerce.
3 Holmes's dissent argues commerce power is plenary
iii. E.C. Knigh
all deny equal protection. §5: gives the enumerated power to remedy a violation of §1. (Reinstein didn’t like the courts ruling for this case)
viii. Gonzales v. Raich 2005: CA legalized medicinal marijuana.
a. The Farmer Filburn effect was used here. Even the use of medicinal marijuana by two people will affect interstate commerce. The rational basis test was used in this decision.
b. Congress can regulate local activities when there is a rational basis to conclude that, in the aggregate, they substantially effect interstate commerce
· Unless the activities are non-economic in nature and traditionally regulated by the states
· Provides that (a) doesn’t control when activities are necessary, to regulate as part of an overall , federal regulatory scheme
F. Revival of the Tenth Amendment
i. Printz v. U.S. 1997: The Constitutionality of the Brady Handgun Prevention Act was challenged. In particular, the requirement of state law enforcement personal to do background checks on gun buyers until federal officers could be put in place.
a. The act was deemed unconstitutional b/c of the 10th Amendment granting state sovereignty. The S.C. said this did fit under the commerce clause but that the 10th amendment took precedent.
b. The court’s rationale was given as being historical understanding, the wording of the Constitution, and prior SC rulings.
ii. Reno v. Condon 2000: Congress passed the Driver’s Privacy Protection Act which prohibited state DMV’s from selling the personal info of drivers.
c. The S.C. said that this Act was Constitutional under the commerce clause. It was not overturned under state sovereignty (10th) b/c it did not require the state to pass any new legislation or assist in enforcement. Also because it did not regulate individual conduct, just the state’s conduct.
III. Freedom of Expression
A. The Bill of Rights and the States
a. Barron v. Baltimore 1833: Barron sued Baltimore for taking his property w/o just compensation under the Taking Clause (5th Amendment)
i. 5th Amendment applies only to federal takings and not the states.
ii. Extension: Bill of Rights does not apply to the states
b. Patterson v. Colorado 1907: Patterson published articles and a cartoon mocking the CO S.C. alleging they were corrupt. He was held in contempt.
i. The court ruled that Pattersons 1st and 14th amendment rights were not violated
ii. Common law was applied. Seditious Libel: no prior restraint (breaking an order not to publish) on speech or press but punishment is ok if the speech produces harmful results.
iii. In his Dissent, Harlan argues for incorporation. He says that 14th amendment protects free speech and freedom of the press
B. The World War I Cases
a. Schenck v. U.S.: Schenck was charged with conspiracy to violate the Espionage Act by publishing documents to encourage men to avoid the draft..
i. Clear and Present Danger Test: Freedom of speech/press are allowed, unless they are deemed to present a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
ii. There is a diff’t standard at times of war and times of peace
iii. The question is proximity and degree and the intent to produce danger
b. Frohwerk v. U.S.: Frohwerk published a German-language newspaper which said that U.S. was making a big mistake in WWI fighting Germany. He was charged with attempt to obstruct the draft.
i. He was found guilty. S.C. said his article was enough to create danger and incite its readers.
c. Debs. V. U.S. 1919
i. Debs was a socialist and supported three dudes who were arrested for aiding another man in avoiding the draft. In his speech, Debs said he thought the war was wrong.
ii. Debs’ guilty ruling was upheld. His speech was an attempt to obstruct justice. This ruling expanded the scope of Seditious Libel.
d. Abrams v. U.S. 1919: Defendants threw flyers out the window of a building that opposed the U.S.’ involvement in the Russian Civil War.