CON LAW
COURSE OUTLINE
TEXT——————-HISTORY——————-THEORY——————–APPLICATION
TEXT: Constitution (“C”)
HISTORY: Historically, how has the C been interpreted?
THEORY: Originalist, Legal Process, and Evolutive
APPLICATION: We must learn how the court and government apply theory to the text.
FORMAT: The outline is broken into 4 segments: 1) brief thumbnail sketch of each major Chief Justices’ term, 2) summary case study of the Brown line of cases, 3) nuts and bolts outline of our federalist system, and 4) in-depth analysis of individual rights litigation (race, gender, age, sexual orientation, unenumerated rights)
I. History of Constitutional Interpretation
PREHISTORY
Originally only 6 Supreme Court Justices, as established in the Judiciary Act of 1789. The Judicial branch was seen as the “least dangerous branch” by Alexander Hamilton. The main case pre-Marshall is Chisolm v. Georgia.
John Marshall Bio
6 weeks of law at William & Mary
Rev. War vet.
Sec. of State
Home-schooled in Roman and Greek classics
Father was a friend of George Washington
Loved the Army, but hated the Continental Congress for not paying the soldiers
Was at Valley Forge
Well-liked (hated by Thomas Jefferson, his cousin)
More politician than a lawyer
Part of Virginia ratification convention
Represented Virginia in Congress
Federalist (designated to carry out party’s aims after loss of 1800 elections)
Decided the mechanisms of the Court made it ineffective and worked to have the Court speak with one voice
Court Eras
1) Marshall Court (1801-1835): Claimed the power of judicial review (Marbury v. Madison), interpreted Congress’ implied powers broadly (Necessary and Proper Clause—McCullough v. Maryland), and granted states all non-enumerated powers. The Court’s 1st mission was to protect the federal government (nationalist view)
2) Tanney Court (1836-1864): Enforced states rights (Charles River Bridge…argued to Marshall who would have invalidated it under the Ks clause but Tanney says no and Dred Scott), and did away with the Contracts Clause, which worked to economic development and improve commerce. Opened up opportunity for industrialization.
· Dred Scott- The fed ct. had no juris b/c Scott was not a citizen of Missouri
· Ex Parte Marryman- rules to release someone that Lincoln arrested by suspending the writ of habeas corpus
3) 3 Amendments (Pres. Lincoln): Reconstruction and the Ambiguous Triumph of Abolition: The 13 (abolished slavery), 14 (guaranteed due process and equal protection) civil rights, and 15 (enfranchised all men) political rights, 1866 Civil Rights Act (first civil rights act)
4) Lochner Court: Interpreted the Privileges and Immunities Clause so narrowly that the P&I Clause is a toothless clause (Slaughter House Cases). Majority of Court asserts that liberty includes “liberty of contract” (used in the Lochner decision).
5) “Switch in Time… that saved nine.” Justice Roberts’ switch from the conservative majority to the new liberal majority (as a result of Roosevelt’s threat to “pack the court” in NLRB v. Jones & Laughlin Steel and West Coast Hotel v. Parrish) resulted in 1) the banishment of the freedom of contract, 2) the expansion of the Commerce Clause power, 3) the adoption of the 2nd mission for the Court—REVIEW LEGISLATION THAT HURTS DISCREET AND INSULAR MINORITIES (Carolene Products filled milk case, footnote #4)
6) Post 1937 “New Deal” Court: Roosevelt pulled the US out of the depression death grip by instituting countless proactive economic bills (New Deal). The Court allowed this series of controversial (from a Constitutional scholar standpoint) legislation out of necessity and in the process, greatly expanded Congress’ power. Reverses liberty of K (west coast hotel) anything is valid under commerce clause
7) Warren Court: Cases such as Brown, Griswald, and Roe v. Wade illustrate the Court’s missionàprotection of individual rights (stems from Carolene Products). Recognition of fundamental rights.
8) Modern Court: Recent decisions have indicated that the modern Court is taking on a 3rd mission—ENFORCE FEDERALISM. Specifically, the Court appears intent on getting the feds out of the states’ business and requiring Congress to be more responsible for its own duties.
Random Notes:
racts, access to courts, legal rights
1) Slaughter House Cases (1873) (p.63, 68):
Privileges and Immunities Clause=narrow and useless.
· The Lochner Court heard cases concerning price fixing at slaughter/butcher houses.
· The Plaintiffs argued that this practice violated the P and I Clause.
· The Court found in favor of the defendants and ruled that the P and I Clause only pertained to citizen’s right to travel within the US without a passport, citizens’ right to unfettered use of the nation’s transportation routes, etc/etc—the interpretation of the clause as protecting only narrow and unquestioned rights
· Read §1 narrowly
· Rejected the apparent intent of the 14adm’s framers to protect civil rights such as common law rights to hold prop and enter Ks
· 14amd was only intended to protect freed slaves not people who wanted equal protection against state monopolies
· Rendered the P and I Clause weak and ineffective for future Civil Rights cases.
· Caused civil rights litigators to turn to Equal Protection Clause.
2) Strauder v. West Virginia (1879) (p.63, 68):
Equal Protection Clause claim. T
· The Court overturned a West Virginia Statute that only permitted white males to serve on juries, which flowed from the “true spirit and meaning” of the 14th Amendment.
o 14amd allowed to regulated political right
3) The Civil Rights Cases(1883) (p.63):
· The Court invalidated the Civil Rights Act of 1875, which provided a federal remedy for private racial discrimination.
· The Court held that the 14th Amendment was aimed at state laws, not private action.
· 13amd could deal w/ private citizens but didn’t apply here
4) Plessy v. Ferguson(1896)(p.63):
Introduction of the Separate but Equal doctrine
