constitutional law slides

Spring 2015 Professor Emily Berman

Constitutional Law

Class 1 Introduction: The Purpose(s) and Meaning(s) of the Constitution

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Class 1 Introduction: The Purpose and Meaning of the Constitution

TODAY’S TARGETS:

Tuesday, January 20, 2015

Class Nuts and Bolts

Why We Need a Constitution

What the Constitution Does and Does Not Do

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Constitutional Law: Course Materials

Brest,

Levinson, 6th ed. (PCD)

Handouts (http://www.law.uh.edu/faculty/eb

erman/)

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1. 1787 – 1868: The Founding Through the Civil War

2. 1868 – 1937: Reconstruction and the “Lochner” Era

3. 1937 – mid-1980s: The New Deal & the Rights Revolution

4. Mid-1980s – present: The Rehnquist / Roberts Retrenchment

Constitutional Law: Historical Periods in First Part of the Class

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1. Government Powers: Congressional powers Executive powers Federalism (states’ powers)

2. Individual Rights: Equal protection Substantive due process (privacy,

abortion, etc.)

Constitutional Law: Doctrinal Areas in Second Part of the Class

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Constitutional Law: Goals for This Class

1) Identify, create, attack & analyze various forms of argument (textual, historical, structural, etc.)

2) Become familiar with the structure & text of the Constitution

3) Learn particular constitutional doctrine (commerce clause, equal protection, etc.)

4) Appreciate the relationship between American history & the evolution of constitutional doctrine

5) Apply constitutional doctrine to novel problems 6) Recognize & question your assumptions about

the fundamental nature of American government

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Constitutional Law: Expectations

Attendance / Class Participation Come to every class prepared If you can’t be prepared please email me in advance You must attend class regularly; if you must be absent,

please email me in advance Each student may take up to 3 “passes” this semester

Evaluation Based on final exam and class participation

Syllabus I reserve the right to modify the syllabus

Feedback Welcome at any time

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Constitutional Law: Laptop (Non)Policy

For one relevant study, see:

https://www.winona.edu/psychology/media/friedlaptopfinal.pdf

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Constitutional Law: Friend or Foe?

Constitutional law is fascinating Explores the fundamental questions of who we are as a

nation and how we decide It invites considerations from legal, historical, and

political viewpoints Presents questions about the meaning of democracy

Constitutional law is challenging There are rules, but fewer and less concrete than some

other subjects This can be frustrating, but embrace the ambiguity! Focus on understanding how to make the arguments in

favor of the various choices rather than finding “answers”

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Constitutional law always begins with the text of the Constitution, but it won’t always end there. Art. I, § 8: Authorizes Congress to create an army and navy, but says nothing about an air force. Is the Air Force unconstitutional?

What Is a Constitution? 10

PREAMBLE TO THE U.S. CONSTITUTION

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

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The Articles of Confederation: Key Provisions

[Art. 2] States retained their sovereignty - “We the

undersigned Delegates of the States,” not WTP of the US. [Art. 3] Established a federation of states. [Art. 5] Delegates appointed to Congress (who were subject

to recall by the states), but no executive or federal judiciary [Art. 6] Limitations on the states only with respect to

foreign relations, war, and treaties. [Art. 8] The states had to levy taxes to fill the U.S. treasury.

No federal power to tax. [Art. 9] Congress had limited powers, and engaging in war,

forming treaties, & coining or borrowing money, required the agreement of 9 states.

[Art. 13] required unanimity to amend the Articles.

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The United States Constitution: Key Compromises

The Connecticut Plan (“Great Compromise”): Bicameral legislature, with un-alterable equal suffrage in the Senate and apportioned representation in the House of Representatives.

The “Three-Fifths Compromise”: Slaves would count as “3/5” of a person for taxes and for the apportionment of congressional seats and electoral votes.

The “Madisonian Compromise”: Constitution would authorize, but not require, the creation of lower federal courts.

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The United States Constitution: Structure

Preamble: “We the People…” Art. I: Legislative Powers (Congress) Art. II: Executive Powers (POTUS) Art. III: Judicial Power(s) and Independence Art. IV: Federal Property, Territories, and States Art. V: Amendment process (and Entrenchment) Art. VI: Federal Supremacy (and Federal Debts) Art. VII: Ratification Procedure

Amends.: The Bill of Rights; Sovereign Immunity; Reconstruction; Income Tax; Suffrage, etc.

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Nine states must ratify the Constitution for it to have effect

People must be convinced to vote for ratification

The state ratification conventions (especially in NY and VA) took on monumental significance

Central complaint about the new Constitution’s text centered around the fear that it gave massive (and unchecked) implied powers to the federal government

Constitutional Law: The Ratification Debates

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Federalists (pro strong federal government) Alexander Hamilton Favored strong central government Saw no need for the bill of rights

Anti-Federalists (“anti” strong federal gov’t) Thomas Jefferson & (eventually) Madison Favored leaving more power to the states Wanted a Bill of Rights to enumerate

individual rights Post-ratification became the “Republicans”

Constitutional Law: The Ratification Debates

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The “Federalists” (Hamilton, Madison, & Jay) 17

Constitutional Law: The Federalist Papers

Federalist No. 10 Goal:

Solve the problem of faction

Federalist No. 51 Goal:

Limit the power of the federal government through structural checks

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1. The first question in McCulloch is whether Congress has the power to incorporate a national bank. Why is that first, and not the (second) question of whether Maryland can tax such an institution?

2. Why does Marshall conclude that Congress does have the power to incorporate a national bank? What kind of arguments does he make?

3. Why does Marshall devote so much of his opinion to a seemingly abstract discussion of the significance of the facts that (1) we have a “Constitution”; and (2) it was ratified by “the People”?

4. What does Marshall mean when he says that “it is a constitution we are expounding?”

5. Why is there such criticism of Marshall’s opinion? Why is McCulloch so significant, to both its supporters and detractors?

Constitutional Law: Reading Questions for Class 2

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Constitutional Law

Class 2 McCulloch v. Maryland

Wednesday, January 21, 2015

Class 2 McCulloch v. Maryland

Today’s Targets:

Introduce some broad themes of the class as seen through McCulloch Forms of constitutional

argumentation Structure of federal

government Nature of U.S.

sovereignty

Constitution drafted to address flaws in the Articles of Confederation and includes many compromises.

Constitutional Law: Recap

Two Camps Emerged (Madison switched after the Constitution was ratified)

JEFFERSON

Separation of Powers Federalism

Designed to combat “faction,” and harness man’s natural ambition as a check against abuses of power.

Constitutional Law: Fundamental Structural Features of the Constitution

Federal power

State power

Three Branches

The result of political compromise, shaped by political & economic pressures of the times.

Left vague in spots because not even the

Framers could agree on what it should say.

Note: Many things we take for granted today were truly up-for-grabs – i.e., whether the Court could invalidate legislation, who would have the last word on constitutional interpretation, etc. Did we get it right?

Constitutional Law: The Constitution was . . .

Pro-Bank Arguments Anti-Bank Arguments SecTreasury A. Hamilton Rep. James Madison AG Edmund Randolph SecState Thomas Jefferson

Case Study: The Bank of the United States

Fourth Chief Justice (1801-35) Longest-Serving Chief Justice

(and 4th-longest tenure ever) Read law @ William & Mary From Germantown, Virginia Ardent “Federalist” Moved Court toward practice

of unified, “majority” opinions Wrote for the Court in almost all of the significant

cases decided during his tenure

Constitutional Law: Better Know a Justice: John Marshall

Constitutional Law: The Constitutionality of the Bank in 1819

Marshall used McCulloch to discuss major points

of disagreement between Federalists and Anti-Federalists/Republicans.

McCulloch presented (at least) 2 Questions: 1. Whether Congress has the power to create the

Bank (i.e. What is the Scope of the Necessary and Proper Clause?)

2. Whether Maryland has the power to tax the Bank (i.e. Do states have the power to tax federal institutions?)


Marshall used McCulloch to discuss major points

of disagreement between Federalists and Anti-Federalists/Republicans.

McCulloch presented (at least) 2 Questions: 1. Yes, Congress does have the power to create

the Bank

2. No, Maryland does NOT have the power to tax the Bank

3. What is the nature of U.S. sovereignty?

Constitutional Law: McCulloch: Questions Presented

1. Whether Congress has the power to create the Bank (i.e., What is the Scope of the Necessary and Proper Clause?)

2. Whether Maryland has the power to Tax the Bank (i.e., Do states have the power to tax federal institutions?)

3. What is the nature of U.S. Sovereignty?

Chief Justice Marshall’s famous bottom line (¶ 38, pg. 53): “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.”

Constitutional Law: McCulloch: The Necessary & Proper Clause

Modalities / Methodologies (pp. 57-63): 1. Appeals to / Construction of Text 2. Constitutional Structure 3. “Prudential” Considerations 4. History 5. Precedent 6. National (or Narrative) Ethos

Constitutional Law: McCulloch: Interpreting the Constitution

Constitutional Law: McCulloch: Questions Presented

1. Whether Congress has the power to create the Bank (i.e., What is the Scope of the Necessary and Proper Clause?)

2. Whether Maryland has the power to Tax the Bank (i.e., Do states have the power to tax federal institutions?)

3. What is the nature of U.S. Sovereignty?

1. What is the actual technical issue in Marbury v. Madison? Who is William Marbury, and what does he want? As you’re considering this, try to keep all of the facts in mind: Who should have signed (and delivered) William Marbury’s commission to him? [Hint: Why is James Madison the defendant? Who was Madison’s predecessor?] How does that influence your view of the decision?

2. Look carefully at the footnote to ¶ 4 on page 122. Aren’t the authors right that Marshall picked a bizarre way to decide the questions presented in Marbury? If he really believes that §13 of the Judiciary Act was unconstitutional, and that the Court therefore did not have jurisdiction, why would he need to discuss any of the other stuff?

3. How, according to Marshall, did §13 conflict with the Constitution? Is he right, or can you make arguments that section 13 is constitutional?

4. Also pay attention to note 2 on pp. 135-36. In your view, does judicial review = judicial supremacy? Does Marbury provide an answer to this question? What are some other possibilities?



Constitutional Law

Class 3 The Marshall Court and Judicial Review

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Thursday, January 22, 2015

Class 3 Marbury v. Madison

Today’s Targets:

Recap McCulloch v. Maryland discussion

Marbury v. Madison (1803) What the heck is this case

about? - The Election of 1800

Chief Justice Marshall’s opinion - Political Masterstroke or (another) act of Judicial Activism?

Modalities / Methodologies: 1. Appeals to / Construction of Text 2. Constitutional Structure 3. “Prudential” Considerations 4. History 5. Precedent 6. National (or Narrative) Ethos

Constitutional Law: McCulloch: Interpretive Considerations

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By 1819, all sides (of the fed gov’t) recognized the

need for the Bank.

McCulloch presented (at least) 2 Questions: 1. Whether Congress has the power to create the

Bank (i.e. What is the Scope of the Necessary and Proper Clause?)

2. Whether Maryland has the power to Tax the Bank (i.e. Do states have the power to tax federal institutions?)

3. What is the nature of U.S. Sovereignty? (i.e. Does U.S. sovereignty lie with the states? the people? the federal government? some combination?)

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¶¶ 10-11: “[W]hen . . . it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then . . ., is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”

Constitutional Law: McCulloch: The Sovereignty Question

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U.S. Const. art. I, § 8, cl. 18: “The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”


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¶ 38 (pg. 53): “[W]e think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.”

In other words: Congress has “implied” as well as explicitly assigned powers.


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Chief Justice Marshall’s famous bottom line: ¶ 38 (pg. 53): “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.”


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¶ 71 (pg. 72): “[W]hen a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. . . . The difference is that . . . between the action of the whole on a part, and the action of a part on the whole.”

Translation: If action is taken by a state, only the citizens of that state have a say in what the action is. That minority should not be able to impose its will on the entire nation.

Constitutional Law: McCulloch: The Taxation Question

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¶ 42 (p. 54): “Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say, that such an act was not the law of the land.”

If McCulloch is not such a case, why does Marshall include this statement?

Constitutional Law: The Segue to Marbury and Judicial Review

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(1789-1795) From N.Y. Co-authored

The Federalist Resigned to

become Gov.

(1795) From S.C. Assoc. Justice

(1789-1791) Resigned to go

to S.C. Sup. Ct.

(1796-1800) From Conn. Pushed for

“United States” in Constitution

Resigned after 4 yrs.

Constitutional Law: Early Chief Justices: Jay, Rutledge, Ellsworth

John Jay

John Rutledge

Oliver Ellsworth

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Constitutional Law: The Supreme Court from 1789 to 1801

Court initially included six Justices. C.J. Jay resigned to become Governor of N.Y. Justice Rutledge had left to become C.J. of the

South Carolina Court of Common Pleas. The Court’s work is seen as more onerous than

important (thanks to “circuit-riding”). Opinions were usually issued “seriatim.” Only major decision is Chisholm v. Georgia

(1793), which prompts the 11th Amendment.

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Electoral Math: Electoral ballot tie between Burr and Jefferson House deadlocks on first 35 ballots; rumors of

Federalist attempts to “steal” election abound; militias put “on alert”

On 36th ballot, Jefferson was finally elected, ten states to four (with two evenly divided)

“Revolution” of 1800: Federalists ejected from the White House & the congressional majority

Note: First time in modern history political leaders were removed from office via popular election

Constitutional Law: Election of 1800

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Constitutional Law: Election of 1800: Aftermath

Feb. 13, 1801: Lame-duck Federalist Congress enacts Judiciary Act of 1801; abolishes circuit riding; establishes new “circuit courts” (thereby creating dozens of new judgeships); reduces SC from 6 to 5 so Jefferson wouldn’t get to appoint anyone.

Mar. 3, 1801: Pres. Adams and SecState/SC Justice Marshall literally stay up all night signing commissions for the “midnight” judges nominated and confirmed under the Judiciary Act of 1801.

Mar. 4, 1801: Jefferson inaugurated as 3rd U.S. President.

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Mar. 8, 1802: The now-Jeffersonian Congress repeals the Judiciary Act of 1801’s creation of 16 circuit judges (the “Repeal” Act).

Apr. 29, 1802: Congress enacts Judiciary Act of 1802; re- establishes “circuit riding”; eliminates Supreme Court’s 1802 Term (by shifting in April from Dec. Term to February Term).

February 1803: Arguments / Decisions in Marbury and Stuart v. Laird.

Constitutional Law: Election of 1800: Aftermath

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Question: Whether the repeal of the Judiciary Act of 1801 is unconstitutional.

Court: Evades the difficult constitutional questions

regarding the life tenure provision of Article III. Upholds the challenge to allowing Supreme Court

justices to ride circuit based on historical precedent.

Why would the courts uphold the repeal of the 1801 Judiciary Act if they doubted its constitutionality?

Constitutional Law: Stuart v. Laird (1803)

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Constitutional Law: Marbury v. Madison (1803)

D.C. Justice of the Peace

William Marbury U.S. Secretary of State

James Madison

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Constitutional Law: Marbury v. Madison (1803): The Facts

John Adams

John Marshall

James Madison

Thomas Jefferson

Outgoing President

Appointed Marshall Chief Justice

Adam’s outgoing Secretary of State

Incoming Chief Justice of SCOTUS

Appointed Justice of the Peace by Adams

Incoming President

Incoming Secretary of State

William Marbury

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Constitutional Law: Imagining Alito v. Clinton

John Adas John Marshall

Outgoing President

Appointed Condi Rice Chief Justice????

Bush’s Secretary of State

Samuel Alito appointed to the bench by George W. Bush

Incoming President

Incoming Secretary of State

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Constitutional Law: Marbury: What is Mandamus?

An extreme remedy Order to a government official to perform a

clear legal duty. Requires . . .

A right in the Plaintiff A duty in the Defendant A lack of adequate alternative remedies

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Constitutional Law: Marbury: Marshall’s Three (Four?) Questions

1) Does William Marbury have a right to his commission as a Justice of the Peace?

2) If so, is he entitled to a remedy? 3) If so, can the Supreme Court provide that

remedy? 4) (Implicitly added by Marshall):

If Congress has unconstitutionally given the Supreme Court the power to provide Marbury with a remedy, does the Court have the power to invalidate that statute?

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Marbury’s right to the position comes from

an Act of Congress. All official acts necessary to give Marbury

the position have been completed, except actually delivering the completed commission to Marbury.

Has the right “vested”?

Constitutional Law: Marbury: The First Question

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“Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission.” (¶ 8)

Translation: The right to an office vests when the person with the power of appointment completes his/her required actions.


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Q: “If [the laws furnish no remedy for the violation of a vested legal right, it must be because of] the peculiar character of the case. It behooves us then to enquire whether there be in its composition any ingredient which shall . . . exclude the injured party from legal redress.”

A: “[W]hether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.”

Constitutional Law: Marbury: The Second Question (¶¶ 19-20)

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Two types of executive power Discretionary: Political acts,

unreviewable in the courts, entirely up to the executive to do as s/he likes, reversible at will.

Creation of a right: Judicially enforceable, subject to rules and limits, courts may inquire into whether the rules have been complied with, executive must follow the rules.

Constitutional Law: Marbury: The Second Question (¶ 21)

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Constitutional Law: Marbury: § 13 of the Judiciary Act of 1789

“. . . . The Supreme Court . . . shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

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Original Jurisdiction: “In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party.”

Appellate Jurisdiction: “In all the other Cases before mentioned, . . . with such Exceptions, and under such Regulations as the Congress shall make.”

Constitutional Law: Marbury: Article 3, Section 2, Clause 2

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Issuing the writ in this case would be an act of original JX (Marshall concludes in ¶41).

The language of section 13 grants the Court JX to issue writs of mandamus to “persons holding office, under the authority of the United States.”

Court: “The authority [given to the Court by Section 13] to issue writs of mandamus to public officers, appears not to be warranted by the Constitution.” (¶41)

Constitutional Law: Marbury: The Supreme Court’s Jurisdiction

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Judiciary Act § 13 : Gives the Supreme Court the authority to issue writs of mandamus to “persons holding office under the authority of the US.”

Constitution, Art. III: Limits Supreme Court authority to issue writs of mandamus to exercise of its appellate jurisdiction.

Court (¶41): Because issuing a writ of mandamus “to an officer . . . is in effect . . . to sustain an original action,” the Judiciary Act purports to expand the SC’s original jurisdiction.

Constitutional Law: Marbury: The Supreme Court’s Jurisdiction

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(¶ 34): “If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.”

Expressio unius est exclusio alterius.

Constitutional Law: Marbury: The Third Question

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“The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.” (¶ 42)

Constitutional Law: Marbury: The Fourth Question

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“It is emphatically the province and duty of the judicial department to say what the law is.” (¶ 52)

“If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” (¶ 54)

“[A] law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” (¶ 74)


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Constitutional Law

Class 4 Judicial Review & Limitations on the Judicial Power

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Monday, January 27, 2015

Class 4 Judicial Review and Limits on Judicial Power

Today’s Targets:

Recap/wrap up Marbury discussion

The Countermajoritarian Difficulty

Limits on Judicial Power? • Jurisdiction • “Case or Controversy” • Congress

“Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission.” (¶ 8)

A: Yes, Marbury has a right to the commission.


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Two types of executive power Discretionary: Political, unreviewable in the

courts, entirely up to the executive to do as s/he likes, reversible at will.

Creation of a right: Judicially enforceable, subject to rules and limits, courts may inquire into whether the rules have been complied with, executive must follow the rules.

A: This case concerns the latter – a judicially enforceable right, not a discretionary decision.

Constitutional Law: Marbury: The Second Question

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The language of section 13 provides the Court with jurisdiction to issue writs of mandamus to “persons holding office, under the authority of the United States.”

Issuing the writ in this case is an act of original jurisdiction (Marshall concludes), so section 13 purports to expand the Court’s “original” JX.

A: The statute gives the Court the authority to issue the writ, but that conflicts with the Constitution’s limits on Supreme Court JX.

Constitutional Law: Marbury: The Third Question

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Marshall claims the power of Judicial Review: “It is emphatically the province and duty of the

judicial department to say what the law is.” (¶ 52) “If then the courts are to regard the constitution;

and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” (¶ 54)

“A law repugnant to the constitution is void; and . . . courts, as well as other departments, are bound by that instrument.” (¶ 74)


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“If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power. . . The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.”

Expressio unius est exclusio alterius.

Constitutional Law: Marbury: Expanding the SC’s Original JX (¶ 34)

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Marbury clearly establishes the principle of “judicial review”—i.e., that the federal courts have the power to strike down as unconstitutional both the laws passed by Congress and the enforcement of those laws by the Executive Branch.

But note that this is giving the one arguably un-democratic branch (the judiciary) the power to undo the will of the democratic majority—and that judicial review is therefore necessarily anti-democratic.

What are the justifications for such a seeming contradiction to our democratic system?

Constitutional Law: Marbury: The Countermajoritarian Difficulty

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Settlement/Uniformity Theory Supervising Inter- and Intra-governmental

Relations Preserving Fundamental Values (Alexander

Bickel) Protecting the Integrity of the Democratic

Process, Representation Reinforcement (John Hart Ely)

Is Judicial Review Actually Countermajoritarian? (Dahl & Graber)

Constitutional Law: The Justifications for Judicial Review

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Constitutional Law: Does Judicial Review Judicial Supremacy?

Cooper v. Aaron (1958): “[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. . . . It follows that the interpretation of the [14A] enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States . . . .”

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What it’s cited for: The Supreme Court has the power to

invalidate statutes that are inconsistent with the Constitution AND the Supreme Court is the final word on what the Constitution says.

What it actually holds: The Supreme Court has the power to

invalidate statutes that are inconsistent with the Constitution AND ??????

Constitutional Law: Marbury v. Madison’s Holding

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Constitutional Law: Judicial Review vs. Judicial Supremacy

Does judicial review judicial supremacy? Two Separate Issues:

Ex Post Supremacy: Can the other branches of the federal

government and/or the states disregard or otherwise overrule Supreme Court decisions with which they disagree?

Ex Ante Supremacy: Are there legal questions that the courts are (or

can be) precluded from answering in the first place, by Congress or by the Constitution?

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Krystal

Sticky Note

After the decision has been issues

Krystal

Sticky Note

Before case gets to court

“[T]his Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” — Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.)

Constitutional Law: From Marbury to Justiciability Doctrine

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The Court cannot expand the jurisdictional categories laid out in the Constitution

Original Jurisdiction: “In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party.”

Appellate Jurisdiction: “In all the other Cases before mentioned, . . . with such Exceptions, and under such Regulations as the Congress shall make.”

Constitutional Law: Article 3, Section 2, Clause 2

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“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States; [and four more categories of ‘Controversies’].”

— U.S. CONST. art. III, § 2, cl. 1

Constitutional Law: The “Case-or-Controversy” Requirement

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“Article III of the Constitution limits the judicial power of the United States to the resolution of ‘Cases’ and ‘Controversies.’ . . . No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

— Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98 (2007) (internal quotation marks omitted)


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Supreme Court’s Self-Imposed Limits:

Bar on Advisory Opinions: There must be an actual case or controversy.

Mootness: Controversy has disappeared.

Ripeness: Controversy has not yet developed.

Standing: Plaintiffs have suffered no injury, or the defendant did not cause the injury, or the relief sought will not cure the injury.


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Krystal

Sticky Note

Political Question Doctrine: Issues are textually committed to another branch

The Court has held that πs must allege:

(1) Personal injury [“injury in fact”]; that is (2) Fairly traceable to the defendant’s allegedly

unlawful conduct [“causation”]; and that is (3) Likely to be redressed by the requested relief

[“redressability”].

In most cases, standing doctrine isn’t controversial. But there are times when it raises important questions.

Constitutional Law: The Rule for “Article III Standing”

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Standing asks whether the right plaintiff is bringing the lawsuit against the right defendant, and also asks whether the lawsuit is actually capable of providing the plaintiff with the relief they seek.

Mootness and ripeness ask whether it’s the right time for the suit—i.e., whether the claim has not yet ripened, or whether relief is no longer necessary or available.


19

The political question doctrine presupposes, per Marbury, that there are some controversies that courts are just not well-suited to resolve—usually either because the Constitution commits the decision-making authority to someone else, or because there are no “judicially manageable standards” that would enable courts to resolve the underlying dispute.

Constitutional Law: The Political Question Doctrine

20

Constitutional Law: PQD: Textually Demonstrable Commitments

Consider Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010):

The D.C. District Court dismissed as nonjusticiable a challenge to the President’s power to target U.S. citizens with lethal force (i.e., drone strikes).

“[A] determination as to whether ‘drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.’ Because decision-making in the realm of military and foreign affairs is textually committed to the political branches . . . the Court finds that the PQD bars judicial resolution of this case.”

21

Constitutional Law: PQD: No “Judicially Manageable Standards”

Consider Vieth v. Jubelirer, (2004):

The Supreme Court dismissed as nonjusticiable a challenge to Pennsylvania’s congressional redistricting plan as too politically motivated.

“[N]o judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable.”

22

Constitutional Law:

This is as far as we got in class today (January 27). We’ll discuss the remaining slides, most of which are about Boumediene v. Bush, tomorrow.

23

Article III, § 1 – The Supreme Court: “[T]he Supreme Court shall have appellate

jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Article III, § 2 – The lower federal courts: “The judicial power of the United States, shall

be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

Constitutional Law: Congress’s Power Over Federal Jurisdiction

24

Krystal

Sticky Note

These two provisions together give congress pretty broad leeway in determining what the court can do.

This combination means: (1) The Constitution gives Congress sweeping

authority over the Court’s appellate JX. (2) Congress did not have to establish any

lower federal courts.

But . . . (1) Per Marbury, Supreme Court’s original JX is

limited to a small class of cases; Congress can’t change that.


25

Two Competing Theories: (1) Plenary Power: Congress’ has complete

power over federal jurisdiction, period. (2) Limited Power: Congress’s power over

federal jurisdiction isn’t plenary; there are limits. Variation #1: “External Restraints” Variation #2: “Essential Functions” Variation #3: “Mandatory Theory of Art. III”

Constitutional Law: Jurisdiction-Stripping and Judicial Power

26

[I]t has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious concerns that such preclusion would raise.”

- Bartlett v. Bowen (D.C. Cir. 1986)

Result: Congress must make it explicitly clear when they actually do want to preclude judicial review of constitutional claims, or courts will assume they did not.


27

Krystal

Sticky Note

Happens relatively rarely, and only twice in Supreme Court's history has congress done this and was struck down by the court.

Only twice has the Supreme Court invalidated an Act of Congress for taking away federal JX:

United States v. Klein (1872) Congress passes statute literally instructing the

Court how to rule in certain pending cases; Court holds that Act violates sep. of powers.

Boumediene v. Bush (2008) Congress passes act taking away federal JX over

Guantánamo habeas petitions and failing to provide adequate alternative remedy; Court holds that Act violates the Suspension Clause.


28

U.S. CONST. art. I, § 9, cl. 2: “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.”

So long as the Clause applies, and so long as habeas has not been suspended, the Clause appears to guarantee access to a judicial remedy for those who claim their detention is unlawful.

Constitutional Law: Boumediene: The Suspension Clause

29

Krystal

Sticky Note

The right to challenge the executive over the basis for your detention.

Facts: Hundreds of suspected terrorists detained at

Guantanamo Bay, Cuba filed petitions for writs of habeas corpus to challenge the basis for their detention.

None of the detainees is a U.S. citizen. In § 7 of the Military Commissions Act of 2006

(“MCA”), Congress explicitly strips the federal courts of jurisdiction to hear detainees’ habeas petitions.

Constitutional Law: Boumediene v. Bush (2008)

30

b. 1936, Sacramento, Cal. 9th Circuit Judge (1975-88). Associate Justice (1988-). B.A., Stanford; J.D., Harvard Generally viewed as Court’s

“swing vote” since Justice O’Connor retired (2006).

Tends to write for majority in high %age of high-profile and/or politically divisive cases.

Constitutional Law: Better Know a Justice: Anthony M. Kennedy

31

Issue: Is § 7 (the JX-stripping provision) of the Military Commissions Act constitutional?

Holding: Kennedy, J., for 5-4 Court, says no. His opinion has two central holdings: (1)The Suspension Clause “has full effect” at

Guantánamo (and so applies to these cases). (2)The MCA violates the Clause by precluding

habeas petitions without providing a constitutionally adequate substitute.


32

Separation of Powers tool: The Suspension Clause

provides “a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”

“To hold the political branches have the power to switch the Constitution on or off at will . . . Would permit a striking anomaly in our tripartite system of government.”

Constitutional Law: Boumediene: The Role of the Courts

33

“What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. . . . Our power ‘to say what the law is’ is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. . . .

. . . It is both irrational and arrogant to say that the answer must be [that courts have the power to review detainees’ cases], because otherwise we would not be supreme.”

Constitutional Law: Boumediene: Justice Scalia’s Dissent

34

“[R]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals . . . would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

— Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring)

Constitutional Law: So Why is the Supreme Court Supreme?

35

“[O]n the . . . first day I’m sworn in, I will issue an executive order to the national security apparatus that it will not enforce Boumediene and it will regard it as null and void because it is an absurd extension of the Supreme Court into the Commander-in-Chief’s [constitutional authority].”

— Newt Gingrich, Jan. 18, 2012 (as reported in The Guardian)

Constitutional Law: Another View on Judicial Supremacy…

36


Constitutional Law

Class 5 Judicial Review & Judicial Supremacy

1

Wednesday, January 28, 2015

Class 5 Judicial Review and Judicial Supremacy

Today’s Targets:

Recap/wrap up Limits on the Judicial Power

Disagreeing With the Supreme Court • The Executive Branch • The States

Marshall’s Justifications Oath Clause Supremacy Clause Arising Under Jurisdiction Don’t let Congress be the judge of its own power Pragmatic Justifications Settlement/Uniformity & Supervising Inter- and

Intra-governmental Relations Preserving Fundamental Values (Alexander Bickel) Representation Reinforcement (John Hart Ely)

Question: Is judicial review actually countermajoritarian (or any more countermajoritarian than the rest of government)?

Constitutional Law: The Justifications for Judicial Review

3

Constitutional Law: Judicial Review vs. Judicial Supremacy

Does judicial review judicial supremacy? Two Separate Issues:

Ex Post Supremacy: Can the other branches of the federal

government and/or the states disregard or otherwise overrule Supreme Court decisions with which they disagree?

Ex Ante Supremacy: Are there legal questions that the courts are (or

can be) precluded from answering in the first place, by Congress or by the Constitution?

4

Supreme Court’s Self-Imposed Limits: Bar on Advisory Opinions: There must be an actual

case or controversy. Mootness: Controversy has disappeared. Ripeness: Controversy has not yet developed. Standing: Plaintiffs have suffered no injury, or the

defendant did not cause the injury, or the relief sought will not cure the injury.

The Political Question Doctrine: Issues are textually committed to another branch, or no manageable standards.


5

Article III, § 1 – The Supreme Court: “[T]he Supreme Court shall have appellate

jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Article III, § 2 – The lower federal courts: “The judicial power of the United States, shall

be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”


6

Two Competing Theories: (1) Plenary Power: Congress has complete

power over federal jurisdiction, period.

(2) Limited Power: Congress’s power over federal jurisdiction has limits. Variation #1: “External Restraints” Variation #2: Undefined “Essential Functions” Variation #3: “Mandatory Theory of Art. III”


7

[I]t has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious concerns that such preclusion would raise.”

- Bartlett v. Bowen (D.C. Cir. 1986)

Result: Congress must make it explicitly clear when they actually do want to preclude judicial review of constitutional claims, or courts will assume they did not.


8

Only twice has the Supreme Court invalidated an Act of Congress for taking away federal JX:

United States v. Klein (1872) Congress passed statute literally instructing the

Court how to rule in certain pending cases; Court holds that Act violates sep. of powers.

Boumediene v. Bush (2008) Congress passed statute stripping federal JX

over Guantánamo habeas petitions and failing to provide adequate alternative remedy; Court holds that Act violates the Suspension Clause.


9


So long as the Suspension Clause applies, and so long as habeas has not been suspended, the Clause appears to guarantee access to a judicial remedy for those who claim their detention is unlawful.

Constitutional Law: Boumediene: The Suspension Clause

10

Facts: Non-citizen suspected

terrorists detained at Guantánamo Bay, Cuba filed petitions for writs of habeas corpus to challenge the basis for their detention.

Section 7 of the Military Commissions Act of 2006 (“MCA”) explicitly strips the federal courts of jx to hear detainees’ habeas petitions.


11





12

Issue: Is § 7 (the JX-stripping provision) of the Military Commissions Act constitutional?

Holding: Kennedy, J., for 5-4 Court, says no: The Suspension Clause “has full effect” at

Guantánamo (and so applies to these cases). The MCA violates the Clause by precluding habeas

petitions without providing a constitutionally adequate substitute.


13

Separation of Powers tool: The Suspension Clause

provides “a time-tested device, the writ, to maintain the ‘delicate balance of governance that is itself the surest safeguard of liberty.”

“To hold the political branches have the power to switch the Constitution on or off at will . . Would permit a striking anomaly in our tripartite system of government.”

Constitutional Law: Boumediene: The Role of the Courts

14

“What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. . . . Our power ‘to say what the law is’ is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. . . .

. . . It is both irrational and arrogant to say that the answer must be [that courts have the power to review detainees’ cases], because otherwise we would not be supreme.”

Constitutional Law: Boumediene: Justice Scalia’s Dissent

15

“[R]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals . . . would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

— Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring)

Constitutional Law: So Why is the Supreme Court Supreme?

16

Amending the Constitution: Amendment proposed by 2/3 of both Houses

of Congress or 2/3 of the states call for a constitutional convention.

Ratification requires agreement of 3/4 of states. Requires significant supermajority – e.,g., ERA: States with 70+% of the nation’s population =

ratified. States with 20% = approved in one House, but

not the other. States with 10% = neither house approved.

Constitutional Law: Overruling / Ignoring the Supreme Court

17

At least parts of four of the 17 post-Bill of Rights amendments were enacted to reverse the Court: The Eleventh Amendment (1798)

(sovereign immunity; overturned Chisholm v. Ga.) The Fourteenth Amendment (1868)

(natural-born citizenship; overturned Dred Scott) The Sixteenth Amendment (1913) (income tax)

(overturned Pollock v. Farmers’ Loan & Trust) The Twenty-Sixth Amendment (1971)

(18-year-old vote; overturned Oregon v. Mitchell)

Constitutional Law: Overruling / Ignoring the Supreme Court

18

Constitutional Law: Andrew Jackson’s Veto Message

Precedent: “Mere [historical] 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.” (77-78)

Supreme Court decisions: “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. . . . 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.” (78)

19

“[O]n the . . . first day I’m sworn in, I will issue an executive order to the national security apparatus that it will not enforce Boumediene and it will regard it as null and void because it is an absurd extension of the Supreme Court into the Commander-in-Chief’s [constitutional authority].”

— Newt Gingrich, Jan. 18, 2012 (as reported in The Guardian)

Constitutional Law: Another View on Judicial Supremacy…

20

Constitutional Law: State Power to Disagree: Va. & Ky. Resolutions

The Kentucky Resolution Nullification: “[W]hensoever the general

government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” (PCD 103)

The Virginia Report Judicial Supremacy?: If the Supreme Court is “to

decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the [federal] government, not in relation to the rights of the” states. (PCD 104-05)

21

U.S. CONST. amend. VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Stanford v. Kentucky (1989): Held that the Eighth Amendment does not prohibit execution of individuals under the age of 18.

Roper v. Simmons (2005): Overrules Stanford; “evolving standards of decency” reflect emerging national and international consensus against executing anyone under the age of 18.

Constitutional Law: State Power to Disagree: Roper v. Simmons (2005) 22

Ex parte Adams (Ala. 2005): Six months after Supreme Court decides Simmons, the Alabama Supreme Court applies the decision and throws out a death sentence for a defendant who was 17 years old at the time he committed his offense.

Justice Parker’s Op-Ed: “State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. . . . [S]tate supreme court judges should not follow obviously wrong decisions simply because they are ‘precedents.’”

Constitutional Law: Alabama and Roper v. Simmons (2005)

23

The Missouri Supreme Court, in the decision that led to the U.S. Supreme Court’s decision in Simmons, had itself concluded that the time had come to overrule Stanford (and therefore effectively overruled a U.S. Supreme Court decision).

If Parker is wrong, wasn’t the Missouri Supreme Court also wrong in Simmons? If not, what’s different?

Constitutional Law: Alabama and Roper v. Simmons (2005)

24

Jackson, J.: “We are not final because we are infallible, but we are infallible only because we are final.”

So, judicial supremacy comes from the Supreme Court’s finality—that it gets to go last.

But it also comes from the Court’s legitimacy—that “we the people” are okay with it going last.

This has two major implications for our purposes: (1) Constitutional law is largely what the SC says it is. (2) The Court has to walk a fine line between acting as

the authoritative expositor of the Constitution and preserving / protecting its legitimacy.

Constitutional Law: Judicial Supremacy – Bottom Line

25

1. Take Chief Justice Taney’s opinion in Dred Scott seriously: What are the actual holdings of the opinion? How does he reach his conclusion that slaves are not “citizens” under the Constitution (hint: walk through note 2 on pp. 284-88). Do you find any of his arguments convincing (or at least more convincing)? Which ones? Why? Does Dred Scott “uphold” the institution of slavery? If not, what does it do, precisely?

2. What are the key points of Justice Curtis’s famous dissent? Does Curtis make the best arguments against Taney’s opinion? What else might he have said? Do you find Curtis convincing on his own terms?

3. Why does Taney strike down the Missouri Compromise? (Hint: check out note 5 on pages 289-90). Why was this holding so important? Did Taney’s decision therefore accelerate the Civil War, or at least render it inevitable? What does note 8 (pp. 291-92) say on this point?

4. It would be easy to dismiss Dred Scott as a terrible and backwards opinion written by an admittedly pro-slavery Chief Justice. But given the text of the Constitution as written, could Taney have come out differently? How?


26


Constitutional Law

Class 6 The Road to Civil War

1

Thursday, January 29, 2015

Class 6 The Road to Civil War

Today’s Targets:

Recap/wrap up Judicial Supremacy discussion

The Pre-War Era • Slavery and the

Constitution • Dred Scott

Ex Ante Limits Article III “Case or Controversy” requirement

(standing, mootness, ripeness, PQD, ban on advisory opinions)

Congress’s control over federal courts’ jurisdiction (which is subject to some limits – see, e.g., Boumediene)

Ex Post Limits Constitutional amendments Departmental theory of constitutional interpretation Nullification Efforts to overrule earlier cases

Constitutional Law: Judicial Supremacy

3

Jackson, J.: “We are not final because we are infallible, but we are infallible only because we are final.” So, judicial supremacy comes from the Supreme

Court’s finality—that it gets to go last. But it also comes from the Court’s legitimacy—that

“we the people” are okay with it going last. This has two major implications for our purposes:

(1) Constitutional law is largely what the SC says it is. (2) The Court has to walk a fine line between acting as

the authoritative expositor of the Constitution and preserving / protecting its legitimacy.

Constitutional Law: Judicial Supremacy – Bottom Line

4





5

As a general matter, the federal government just didn’t do all that much in the first 70 years to restrict the rights of individuals.

In Barron v. City of Baltimore (1833), the Supreme Court held that Bill of Rights does not apply to the states; state governments are not subject to their limits. Only the federal government must respect them.

Constitutional Law: The Constitution’s “Quiet” Period

6

Judicial Review’s Mixed Pedigree: Judicial review is not only Brown v. Board of

Education, but also Dred Scott. Elusiveness of Originalism:

The more you know about the evolution of the country since the Founding, the more you realize how difficult it is to find THE original meaning of most constitutional provisions.

Implications for the Fourteenth Amendment: Many contemporary constitutional questions ride

on what the 14A (which is a response to Dred Scott and slavery) means.

Constitutional Law: Why Do We Care About Slavery Now?

7

Direct Constitutional Protection for Slavery: (1) Art. I, § 9, cl. 1: Congress may not prohibit the

“Importation” of “Persons” by the states until 1808.

(2) Art. I, § 3: 3/5 Compromise for representation and taxation

(3) Art. IV, § 2, cl. 3 (Fugitive Slave Clause): • No person held to service or labour in one state . . .

escaping into another, shall . . . be discharged from such service or labour, but shall be delivered up . . . [to] the party to whom such service or labour may be due.

Constitutional Law: The “Slavocratic” Constitution

8

Indirect Constitutional Protection for Slavery: (1) Art. I, § 8: Power to suppress insurrection (2) Art. I, § 9: Ban on congressional export taxes

(to prevent excessive taxation of products the South produced with slave labor)

(3) Art. I, § 3 & Art. II, § 1: Structure of the Senate and the Electoral College

Constitutional Law: The “Slavocratic” Constitution

9

Constitutional Law: Slaves as %age of State Population – 1790

Georgia: 29,264

Virginia: 292,627

South Carolina: 107,094

Rhode Island: 958

Pennsylvania: 3,707

North Carolina: 100,783

Maryland: 103,036

New York: 21,193

New Jersey: 11,423

New Hampshire: 157

Connecticut: 2,648

Delaware: 8,887

0.02%

0.11%

0.85%

1.11%

1.39%

6.20%

6.23%

15.04%

16.87%

25.60%

32.23%

35.45%

39.14%

43.00%

Vermont

New Hampshire

Pennsylvania

Connecticut

Rhode Island

New Jersey

New York

Delaware

Kentucky

North Carolina

Maryland

Georgia

Virginia

South Carolina

10

Three primary (and related) battlegrounds over the slavery question:

(1) The numerical balance between slave and free states (for purposes of Senate representation);

(2) The question of whether there would/should be slavery in the territories, and who should decide (i.e., Congress or the territories themselves); and

(3) The extent to which “free” states were allowed to protect—and prevent the capture and return of—”fugitive” slaves.

Constitutional Law: Slavery After 1808

11

The slave states were convinced, rightly or not, that the “free” states would ban slavery as an institution everywhere as soon as they obtained enough power / representation in Congress.

On the other hand, the free states were obsessed with confining slavery only to the original slave states, and to prohibiting it everywhere else, especially in the territories (“free soil”).

Constitutional Law: Slavery and the Antebellum Congress

12

The Fugitive Slave Act of 1793: Made it a crime to assist a fugitive slave; created procedures for the return of fugitives (even in “free” states); provided that fugitive slaves would be fugitives “for life.”

The Missouri Compromise (1820): Provided for the admission of Maine as a “free” state and Missouri as a “slave” state, but otherwise prohibited slavery in the Louisiana territory north of 36°30’ (Missouri’s southern border).


13

Constitutional Law: The Missouri Compromise

14

Facts: Mississippi forbade importing slaves for sale

in the state. Anti-slavery states were using local law to

create barriers to slavery in their states. Question: Is commerce in slaves “interstate

commerce”? If so, it can be regulated by the federal

government. Court: Dodges the question.

Constitutional Law: Groves v. Slaughter (1841) (PCD 250)

15

PA Law: Barred “self-help” in both the capture and

the removal of fugitive slaves.

Fugitive Slave Act of 1793: Required slave owners to get a “certificate”

from a local magistrate before removing alleged slaves from one state to another.

Constitutional Law: Prigg v. Pennsylvania (1842)

16

Facts: Prigg was convicted by PA court for kidnapping and selling into slavery a woman, Margaret Morgan, who likely was not a fugitive slave, and her two children, who assuredly were not.

Question: Does PA’s law, under which an owner can be prosecuted for using “self-help” to recapture an escaped slave, violate the FSC or FSA?

Court: Yes. The PA law is unconstitutional.

Constitutional Law: Prigg v. Pennsylvania (1842)

17

Appointed by Madison at age 32(!) Served for 34 years (1811-45) As significant as (if not more than)

Marshall with respect to the development of American law

Wrote for Court in Martin (1816), The Amistad (1841), & Swift (1842)

Author of most significant 19th-century treatise on the U.S. Constitution

Publicly anti-slavery

Constitutional Law: Justice Joseph Story

18

Kansas-Nebraska Act (1854): Repealed Missouri Compromise. Allows KS and NE territories to decide slavery

issue through “popular sovereignty.” Pro- and anti-slavery people flooded KS in

order to influence the slavery vote, which led to widespread violence.

The new Republican Party formed in opposition to the Act & aimed to stop slavery’s expansion.

The Democratic party’s North/South coalition shattered → Lincoln elected in 1860.


19

Fifth Chief Justice (1836-64) From Calvert County, Md. First Roman Catholic Justice Appointed by Pres. Jackson Served as Attorney General

and Secretary of the Treasury before being appointed to the Court

Most famous for his opinion for the majority in Dred Scott

Constitutional Law Justice Roger Brooke Taney

Background: Scott is a slave who travels with his owner first to IL (a free state), and then to MN (a free territory), before “voluntarily” returning to MO (a slave state). Scott sues Sandford (his owner) claiming that he is free.

Issue: Did Scott become a free citizen by virtue of setting foot in either Illinois or Minnesota?

Constitutional Law: Dred Scott v. Sandford (1857)

The “Citizenship” Question: Is Scott a “citizen” of MO within the meaning of the Constitution?

The “Free State” Question: Did Scott become free when he set foot in a free state (Illinois)?

The “Territory” Question: Did Scott become free when he set foot in MN (Taney reframes as: did Congress have the power to prohibit slavery in the territories)?


“The only matter in issue before the court . . . Is whether the descendants such of slaves, when they shall be emancipated, or who are born of parents who had becomes free before their birth, are citizens of a States, in the sense in which the word citizen is used in the Constitution of the United States.”

“It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.”

Constitutional Law: Dred Scott: The Citizenship Question

As with Marbury, Taney determines that the Court lacks jurisdiction over the case, but goes on to reach the merits of an issue (Congress’s power to abolish slavery in the territories) nevertheless.

Two questions: (1) If he wants to reach the merits, why not

hold that Scott is a citizen? (2) If his citizenship holding is sincere, why did

he reach out to strike down the Missouri Compromise?

Constitutional Law: Dred Scott: Advisory Opinion?

Taney answered the second question—whether Scott became free when he set foot in a free state—by relying on an earlier Supreme Court decision (Strader v. Graham), that had already settled the question, holding that the law of the state from which the plaintiff travels (and to which he returns) controls.

Constitutional Law: Dred Scott: The “Free State” Question

Note that Taney does not frame this question in the abstract as whether Congress can abolish slavery in the territories (a power that might be found in the text of the Public Lands Clause of Article IV);

Rather, he frames it as whether Congress can prohibit a citizen from taking their lawful property from a state into a territory.

Court: When southerners bring slaves into free territories, the government is taking their property without due process of law.

Constitutional Law: Dred Scott: The Territory Question

Election of 1860:


27


Constitutional Law

Class 7 The Civil War and the “New Birth of Freedom”

1

Tuesday, February 3, 2015

Class 7 The Civil War

Today’s Targets:

Finish Dred Scott discussion Two weeks in – where are

we? President Lincoln Reacts to

Secession The Prize Cases (1863) Ex Parte Merryman (1861) The Emancipation

Proclamation (1863) Ex parte Milligan (1866)

2

1) Can’t understand the development of the Constitution and the country without taking context into account.

2) Notions of what constitutes a persuasive argument can change over time.

3) Think about what it means for an opinion to be “wrong.”

4) What is today’s Dred Scott?

Constitutional Law: Why are we reading this?

3

For now, focus on . . . 1) The underlying questions.

What does the Constitution mean? Who decides? Who should decide?

2) What forces drive (or should drive) decision-making. Text? History? Judges’ agendas? Public opinion?

3) What turns on the answers to these questions – what’s at stake. Scope of federal power? Success of a political/economic agenda?

4) What kinds of arguments people make. Are some more persuasive than others? Why?

5) How and why do the answers to these questions change over time?

Constitutional Law: What do we need to know?

4

1. Overarching issues Judicial review/judicial legitimacy/role of the court Federal/state distribution of power Institutional roles of courts, Congress, President

2. Era-by-era issues Ebb and flow of dominant ideologies – how does

constitutional change happen and what drives it? 3. Doctrine-by-doctrine issues Evolution of particular constitutional provisions Where does the law seem to be headed?

And, importantly: What are the arguments for & against various approaches to these questions?

Constitutional Law: Multiple “Bottom Lines”

5

1) Why do Americans follow Supreme Court decision with which they disagree? Use cases and class discussion to illustrate and support your argument.

2) Which of the following opinions is an example of an originalist interpretation? Marbury v. Madison Dred Scott v. Sanford McCulloch v. Maryland Boumediene v. Bush

3) Traditional issue-spotter essays.

Constitutional Law: Sample questions

6

Background: Scott is a slave who travels with his owner first to IL (a free state), and then to MN (a free territory), before “voluntarily” returning to MO (a slave state). Scott sues Sandford (his owner) claiming that he is free.



7

The “Citizenship” Question: Is Scott a “citizen” of MO within the meaning of the Constitution?

The “Free State” Question: Did Scott become free when he set foot in a free state (Illinois)?

The “Territory” Question: Did Scott become free when he set foot in MN (Taney reframes as: did Congress have the power to prohibit slavery in the territories)?


8

Originalist interpretation: “It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.”

Differentiates between “State citizenship” and “Federal citizenship.”

Holding: Blacks were not considered part of the “political community” at the time of the Founding, and therefore can never be Federal citizens.

Constitutional Law: Dred Scott: The Citizenship Question

9

As with Marbury, Taney determines that the Court lacks jurisdiction over the case, but goes on to reach the merits of an issue (Congress’s power to abolish slavery in the territories) nevertheless.

Two questions: (1) If he wants to reach the merits, why not

hold that Scott is a citizen? (2) If his citizenship holding is sincere, why did

he reach out to strike down the Missouri Compromise?

Constitutional Law: Dred Scott: Advisory Opinion?

10

Taney answered the second question—whether Scott became free when he set foot in a free state—by relying on an earlier Supreme Court decision (Strader v. Graham), that had already settled the question, holding that the law of the state from which the plaintiff travels (and to which he returns) controls.

Constitutional Law: Dred Scott: The “Free State” Question

11

Note that Taney does not frame this question in the abstract as whether Congress can abolish slavery in the territories (a power that might be found in the text of the Public Lands Clause of Article IV);

Rather, he frames it as whether Congress can prohibit a citizen from taking their lawful property from a state into a territory.

Court: When southerners bring slaves into free territories, the government is taking their property without due process of law.

Constitutional Law: Dred Scott: The Territory Question

12

Election of 1860:


13

Background: At outset of Civil War, Pres. Lincoln imposes blockade of Southern ports. Owners of seized ships sue to challenge blockade.

Issue: Did President Lincoln have the authority unilaterally to order an act of war (the blockade)?

Holding: For 5-4 Court, Grier, J., says yes: President can’t declare war unilaterally, but he has the inherent power to respond to hostilities once they have been commenced by a foreign invader or a state, along with the related statutory power to “suppress insurrections.”

Constitutional Law: The Prize Cases (1863)

14

“Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. . . . The proclamation of a blockade is, itself, official and conclusive evidence. . . that a state of war existed.”

Constitutional Law: The Prize Cases (1863) (PCD 318)

15

Nelson, J., dissenting: “The Acts of 1795 and 1807 did not, and could not under the Constitution, confer on the President the power of declaring war against a State of this Union, or of deciding that war existed . . . . Congress alone can determine whether war exists or should be declared; and until they have acted, no citizen of the State can be punished in his person or property, unless he has committed some offence against a law of Congress passed before the act was committed, which made it a crime, and defined the punishment.” (319)

Constitutional Law: The Prize Cases (1863)

16


While Congress is out of session at the outset of the Civil War, President Lincoln authorizes General Scott to suspend habeas on a “military line” between Philly and D.C. (incl. Baltimore).

Union Army detains Merryman in Baltimore; he files a writ of habeas corpus before Chief Justice Taney, sitting as Circuit Justice for D. Md.

Constitutional Law: Ex parte Merryman (C.C.D. Md. 1861)

17

Taney, C.J. : “I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.” (322)

Constitutional Law: Ex parte Merryman (C.C.D. Md. 1861)

18

“[A]re all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated? Even in such a case would not the official oath be broken if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?” (324)

Constitutional Law: Responding to the Civil War

19

“Now, it is insisted that Congress and not the Executive is vested with this power. But the Constitution itself is silent 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.” (324).

Constitutional Law: Ex Parte Merryman (C.C.D. Md. 1861)

20

“I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion,” order that, in those states currently in rebellion against the United States, “all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free.” (325)

Constitutional Law: The Emancipation Proclamation (1863)

21

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. . . . It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have so nobly advanced. . . . [T] his nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.” (332)

Constitutional Law: The Gettysburg Address

22

Background: Milligan, a Confederate sympathizer, is tried by a military commission for allegedly planning to steal weapons (and free Confederate soldiers) from Union POW camps.

Issue: Can Milligan be tried by a military, rather than a civilian, court?

Holding: For unanimous Court, Davis, J., says no: President Lincoln lacked the unilateral authority to create military tribunals. But Chase, C.J., writes a four-Justice concurrence.

Constitutional Law: Ex parte Milligan (1866)

23

Open Courts: “As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”

Civilian Defendant: “[N]o usages of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.”

Constitutional Law: Ex parte Milligan (1866) (PCD 334)

24

“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.” (334)


25

Chase, C.J., concurring: “[W] hen the nation is involved in war, and

some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.” (336)


26

Famous Rights-Protection Language from Milligan:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”


27

The Civil War years witnessed a massive broadening of Congress’s role in local economic and commercial regulation, e.g.: Creation of the Department of Agriculture Morrill Land-Grant Act Authorization of the Pacific Railroad The National Currency Act of 1863 The National Bank Act of 1864

Why? First, the war provided Congress with “necessity” arguments. Second, the traditional critics of federal power were missing.

Constitutional Law: The Civil War’s Quiet Revolution

28

The Thirteenth Amendment (1865): “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The Fifteenth Amendment (1870): “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Constitutional Law: The Civil War’s Louder Revolution

29

The Fourteenth Amendment, § 1 (1868): All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Constitutional Law: The Civil War’s Louder Revolution

30


Constitutional Law

Class 8 The Fourteenth Amendment: “Privileges or Immunities”

Wednesday, February 4, 2015

Class 8 The Fourteenth Amendment – Privileges or Immunities

Today’s Targets:

Continue Civil War Materials The Emancipation Proclamation Ex Parte Milligan

Reconstruction: A (Very Brief) Historical Overview

The Fourteenth Amendment The Slaughterhouse Cases (1873)

Justice Miller and “Privileges or Immunities”

The Dissenters: Justices Field, Bradley, & Swayne


Holding: Blacks Founding, and therefore can never be Federal citizens.

Taney: Tried to settle the debate over slavery. While Dred Scott may not have caused the Civil War, it certainly did not succeed in preventing it either.


3

Civil War Cases present a series of similar questions: What (if any) are the limits of the President’s power

to respond to perceived emergencies? When must Congress act to approve (in advance or

retroactively) the President’s actions? Who decides when a particular measure is

“necessary”? What role should the Supreme Court play in

defining the powers of the political branches in time of emergency?

Constitutional Law: Intro to Executive Power

4

The Prize Cases (1863): Majority: The President has the power to

determine whether a state of war exists, and to act to defend the country.

Dissent: The only way for the US to be at war is for Congress to declare it.

Ex Parte Merryman (C.C.D. 1861): Only Congress has the power to suspend the

writ of habeas corpus.

Constitutional Law: Civil War Cases - Recap

5

“[A]re all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated? Even in such a case would not the official oath be broken if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?” (324)

Constitutional Law: Responding to the Civil War

6

“Now, it is insisted that Congress and not the Executive is vested with this power. But the Constitution itself is silent 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.” (324).

Constitutional Law: Ex Parte Merryman (C.C.D. Md. 1861)

7

“I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion,” order that, in those states currently in rebellion against the United States, “all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free.” (325)

Constitutional Law: The Emancipation Proclamation (1863)

8

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. . . . It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have so nobly advanced. . . . [T] his nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.” (332)

Constitutional Law: The Gettysburg Address

9

Background: Milligan, a Confederate sympathizer, is tried by a military commission for allegedly planning to steal weapons (and free Confederate soldiers) from Union POW camps.

Issue: Can Milligan be tried by a military, rather than a civilian, court?

Holding: For unanimous Court, Davis, J., says no: President Lincoln lacked the unilateral authority to create military tribunals. But Chase, C.J., writes a four-Justice concurrence.


10

Open Courts: “As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”

Civilian Defendant: “[N]o usages of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.”

Constitutional Law: Ex parte Milligan (1866) (PCD 334)

11

“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.” (334)


12

Chase, C.J., concurring: “[W] hen the nation is involved in war, and

some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.” (336)


13

Famous Rights-Protection Language from Milligan:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”


14

The Civil War years witnessed a massive broadening of Congress’s role in local economic and commercial regulation, e.g.: Creation of the Department of Agriculture Morrill Land-Grant Act Authorization of the Pacific Railroad The National Currency Act of 1863 The National Bank Act of 1864

Why? First, the war provided Congress with “necessity” arguments. Second, the traditional critics of federal power were missing.

Constitutional Law: The Civil War’s Quiet Revolution

15

The Thirteenth Amendment (1865): Section 1. Neither slavery nor involuntary

servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Why wasn’t this enough?

Constitutional Law: The “New Birth of Freedom”

Championed by Presidents Lincoln & Andrew Johnson (left).

Favored quick, peaceful reunification; focus on abolition of slavery and the provision of some civil / political rights to former slaves.

Johnson objected to (and vetoed) the more radical elements of Congress’s Reconstruction efforts, like the Civil Rights Act of 1866, which was overridden by Congress.

Constitutional Law: “Presidential” Reconstruction

Also known as “Radical Reconstruction” after the “Radical” Republicans who took over in the 1866 midterm elections.

A far more punitive program vis-à-vis the South, and a far more ambitious regime vis-à-vis the rights of freed slaves.

Ambitious legislation to protect the rights of newly freed slaves: Freedman’s Bureau Civil Rights Bill of 1866

Constitutional Law: “Congressional” Reconstruction

(348): “[C]itizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the U.S., to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of the laws and proceedings for the security of person and property, as is enjoyed by white citizens.”

Constitutional Law: The Civil Rights Act of 1866 (pre-14A)

Note the rights specifically protected by the Act: 1. To make and enforce contracts; 2. To sue, be parties, and give evidence; 3. To inherit, purchase, lease, sell, hold, and

convey real and personal property; and 4. To full and equal benefit of the laws and

proceedings for the security of person and property.

Why these rights and not others?

Constitutional Law: The Civil Rights Act of 1866 (pre-14A)



Constitutional Law: The Fourteenth Amendment § 1:

§ 2 deals with Apportionment (overruling the 3/5 Compromise), and includes a penalty clause for states that disenfranchise voters (for reasons other than crime or involvement in the rebellion).

§ 3 bars certain former federal officials who supported the South from holding federal office.

§ 4 deals with various war-related debts. § 5 (The “Enforcement” Clause): “The Congress

shall have power to enforce, by appropriate legislation, the provisions of this article.”

Constitutional Law: The Fourteenth Amendment §§ 2-5:

39th Congress – excluded elected representatives from the former Confederate states - Art. I, §5, cl. 1

Georgia v. Stanton – judging qualifications of members of Congress is a political question.

14A was therefore proposed by a Congress with no Democratic Southern opposition.

Reconstruction Acts – Place Southern states under military occupation, forces them to create new state governments that permit black suffrage, will recognize new congressional delegations only after the state ratifies the 14A.


President Johnson’s Impeachment: Culmination of repeated clashes between Johnson

and the radical Congress. Johnson tried to thwart implementation of the

Reconstruction Acts by firing his Secretary of War in violation of the (unconstitutional?) Tenure of Office Act.

Johnson ultimately bows to Congress’s power to dictate the terms of reconstruction and is acquitted by one vote.

By 1868, all southern states had ratified the 14A.


Republicans increasingly divide over the radicalism of Grant’s policies, especially the use of the federal military throughout the South.

“Panic of 1873” starts economic downturn; together with intimidation of Freedmen in heavily Republican areas of South, Democrats regain control of the House of Representatives in 1874 midterms.

“Disputed” Election of 1876 leads to “Compromise of 1877”: Hayes (R) is declared winner; in exchange, Hayes promises to remove federal troops (effectively ending Reconstruction).

Constitutional Law: “Redemption” (1873-77)

Constitutional Law: The Election of 1872

26

Constitutional Law: The Election of 1876

27

What Reconstruction Was Civil rights Bill of 1866: Giving blacks civil rights Free Labor Ideology: Role of government is to

protect the right to contract and no more What Reconstruction Was Not Commitment to black land ownership Commitment to full equality – social and political

rights, as well as civil rights – for blacks

Constitutional Law: Reconstruction Bottom Line

Facts: Louisiana charters a

corporation giving a monopoly to the Crescent City Co.

The law requires all slaughtering be done at one facility.

Butchers must pay a fee to use the facility.

Constitutional Law: The Slaughterhouse Cases (1873)

Issue: Whether the act

granting the monopoly interferes with butchers’ labor rights, as protected by the new constitutional amendments.


Justice Samuel F. Miller

U.S. CONST. art. IV § 2, cl. 1: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

U.S. CONST. amend. XIV § 1, cl. 2: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .”

Constitutional Law: The Privileges and/or Immunities Clauses

The alternative reading “would constitute this court a perpetual censor upon all legislation of the States, . . . with authority to nullify such as it did not approve as consistent with [the civil rights of a State’s own citizens].”

Such an argument “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” (378)


Dissent (Swayne, J.): “These amendments are a new departure, and

mark an important epoch in the constitutional history of the country. They trench directly upon the power of the states.” (383-84)

The Court’s interpretation of the 14A turns “what was meant for bread into a stone.” (384)


2nd-longest tenure (1863-97) Born in Conn. (settled in Cal.) Unionist Democrat Pioneered what we today call

“substantive due process”—the idea that the Constitution protects various personal liberties from all but the most urgent gov’t regulation.

Dissent in Slaughterhouse Majority op. in Pennoyer

Constitutional Law: Justice Stephen J. Field

Field, J., dissenting: “The State may prescribe such regulations for

every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations.” (327-28)


Bradley, J., dissenting: “In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.” (329)

In other words, Bradley thinks the P-or-I Clause incorporates the Bill of Rights.


The Meaning of the Due Process Clause: “[U]nder no construction of that provision that

we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.” (379)


The Meaning of the Equal Protection Clause: “The existence of laws in the States where the

newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause.” (379)


Majority: The “one pervading purpose” of the 14A, was “the freedom of the slave race”. . . [I]n any fair and just construction of any section or phrase of the [13th, 14th, or 15th amendment], it is necessary to look to the purpose which we have said was the pervading spirit of them all.” (375-76)

Dissent (Bradley, J.): “The mischief to be remedied was not merely slavery . . . but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years . . . [and] which often rendered life and property insecure, and led to much unequal legislation.” (382-83)

Constitutional Law: The Slaughterhouse Cases (1873) – What’s the Evil?

United States v. Cruikshank (1876): Court relies on Slaughterhouse to hold that the 15A merely protects against race-based discrimination and that the Constitution did not confer the right to vote on anyone.

United States v. Reese: On the same day, the Court invalidates §§ 3 & 4 of the 1870 Enforcement Act, which prohibited interference with the right to vote on grounds including—but not limited to—race. Court holds that 15A only empowers Congress to prohibit race-based interference with the franchise.

Constitutional Law: Why Slaughterhouse Matters: The 15th Amend.

Regardless of how broadly the Civil War Amendments were meant to be construed, the Court adopts a narrow readings of key provisions, e.g., the P-or-I Clause (Slaughterhouse), and 15A (Cruikshank & Reese).

A sharp divide was emerging over whether the Reconstruction amendments changed the federal-state relationship (and, if so, how).

How you answer to that question affects your interpretation of the post-war Constitution.

Constitutional Law: Taking Stock


Constitutional Law

Class 9 The Fourteenth Amendment: Incorporation & Equality

1

Thursday, February 5, 2015

Class 9 The Fourteenth Amendment – Incorporation & Equality

Today’s Targets:

Recap Civil War Slaughterhouse The Fourteenth Amendment &

Selective Incorporation The 19th Century Fourteenth

Amendment and “Equality” Bradwell v. Illinois (1873) & the

“Separate Spheres” Ideology Minor v. Hapersett (1874)

The Prize Cases (1863): The President has the power to determine whether a state of war exists, and to act to defend the country.

Merryman (1861): Only Congress has the power to suspend the writ of habeas corpus (ignored); justified as a necessary war measure.

Emancipation Proclamation (1863): Took unilateral action to accomplish something over which the Federal government had no power during peace; justified as a necessary war measure.


3

Ex Parte Milligan (1866): Majority: Military commissions are

unconstitutional when the courts are open and operating.

Concurrence: Congress’s war powers gives it authority to authorize military commissions.

Emergency Power questions: The role of the courts, and whether its different

during war/crisis vs. peace time. Whether to rein in the executive during crises

and, if so, how.


4

The Thirteenth Amendment (1865): “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The Fifteenth Amendment (1870): “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Constitutional Law: The Reconstruction Amendments

5




6

Original Purpose of the 14A Provided constitutional support for the Civil

Rights Act of 1866. Certainly intended to protect “civil” rights

(contract, property, etc.) to former slaves. Almost certainly did not intend to extend to

“political” rights (e.g., voting) or “social” rights (e.g., access to public accommodations).

Certainly did not apply to other groups (e.g., women).


7

Facts: Louisiana charters a

corporation giving a monopoly to the Crescent City Co.

The law requires all slaughtering be done at one facility.

Butchers must pay a fee to use the facility.


Issue: Whether the act

granting the monopoly interferes with butchers’ labor rights, as protected by the new constitutional amendments.


Justice Samuel F. Miller

U.S. CONST. art. IV § 2, cl. 1: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

U.S. CONST. amend. XIV § 1, cl. 2: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .”

Constitutional Law: The Privileges and/or Immunities Clauses

The alternative reading “would constitute this court a perpetual censor upon all legislation of the States, . . . with authority to nullify such as it did not approve as consistent with [the civil rights of a State’s own citizens].”

Such an argument “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” (378)


Dissent (Swayne, J.): “These amendments are a new departure, and

mark an important epoch in the constitutional history of the country. They trench directly upon the power of the states.” (383-84)

The Court’s interpretation of the 14A turns “what was meant for bread into a stone.” (384)


2nd-longest tenure (1863-97) Born in Conn. (settled in Cal.) Unionist Democrat Pioneered what we today call

“substantive due process”—the idea that the Constitution protects various personal liberties from all but the most urgent gov’t regulation.

Dissent in Slaughterhouse Majority op. in Pennoyer

Constitutional Law: Justice Stephen J. Field

Field, J., dissenting (380): The “question presented” is “nothing less than

the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation.

Under the 14A, “fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State.”


Bradley, J., dissenting: “In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.” (382)

In other words, Bradley thinks the P-or-I Clause incorporates the Bill of Rights.


The Meaning of the Due Process Clause: “[U]nder no construction of that provision that

we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.” (379)


The Meaning of the Equal Protection Clause: “The existence of laws in the States where the

newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause.” (379)


Majority: The “one pervading purpose” of the 14A, was “the freedom of the slave race”. . . [I]n any fair and just construction of any section or phrase of the [13th, 14th, or 15th amendment], it is necessary to look to the purpose which we have said was the pervading spirit of them all.” (375-76)

Dissent (Bradley, J.): “The mischief to be remedied was not merely slavery . . . but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years . . . [and] which often rendered life and property insecure, and led to much unequal legislation.” (382-83)

Constitutional Law: The Slaughterhouse Cases (1873) – What’s the Evil?

P-or-I clause of the 14A protects only rights of United States citizens, not rights of state citizens.

Day-to-day rights (life, liberty, property) are subject to state police power.

Constitutional Law: Why Slaughterhouse Matters

19

United States v. Cruikshank (1876): Court relies on Slaughterhouse to hold that the 15A merely protects against race-based discrimination and that the Constitution did not confer the right to vote on anyone.

United States v. Reese: On the same day, the Court invalidates §§ 3 & 4 of the 1870 Enforcement Act, which prohibited interference with the right to vote on grounds including—but not limited to—race. Court holds that 15A only empowers Congress to prohibit race-based interference with the franchise.

Constitutional Law: Why Slaughterhouse Matters – the 15th Amendment

Two recurring questions about the 14A:

(1) Does any aspect of Section 1 protect any unenumerated (“implied fundamental”) rights?

(2) Does any aspect of Section 1 incorporate the Bill of Rights (in whole or in part) against the states?

Slaughterhouse is significant in taking the P-or-I Clause off the table as an answer to either, even though Field thought it was the answer to (1), and Bradley thought it was the answer to (2).

Constitutional Law: Why Slaughterhouse Matters

21

Regardless of how broadly the Civil War Amendments were meant to be construed, the Court adopts a narrow readings of key provisions, e.g., the P-or-I Clause (Slaughterhouse), and 15A (Cruikshank & Reese).

A sharp divide was emerging over whether the Reconstruction amendments changed the federal-state relationship (and, if so, how).

How you answer to that question affects your interpretation of the post-war Constitution.

Constitutional Law: Taking Stock

23

Remember in Slaughterhouse, there were two dissents:

(1) One argued that the 14A created substantive limits on state legislation that could be enforced by individuals against states

(2) Another argued that the 14A makes the Bill of Rights applicable to the states.

Constitutional Law: Segue to Incorporation

24

(1) “Total” Incorporation: Justice Black’s theory; holds that 14A applies every provision of the first eight amendments to the states.

(2) “Selective” Incorporation: Justice Brennan’s theory; holds that 14A applies certain provisions of the first eight Amendments to the states, but not all of them.

The Supreme Court has never embraced “total” incorporation, though it has eventually held that almost every provision of the Bill of Rights is incorporated, with only a few exceptions.

Constitutional Law: Incorporation: Two Approaches

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(1) The Second Amendment (2) The Third Amendment (Quartering) (3) The Grand Jury Indictment Clause of 5A (4) The “Vicinage” Clause of 6A

(Jury from district where crime took place.) (5) Size / Unanimity for Jury Trial Clause of 6A (6) The Seventh Amendment (Civil Juries) (7) The Excessive Fines Clause of 8A

Constitutional Law: Incorporation: Exceptions (as of 2007)

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Think of all the rights that come from the Bill of Rights: The right to counsel (Gideon v. Wainwright); Miranda rights; The “exclusionary rule” for 4A violations (Mapp v.

Ohio); Free speech and free exercise of religion, etc.

Role of reviewing state law violations: There were many, many more of them Lower federal courts were, at the time, far more

protective of criminal defendants’ rights.

Constitutional Law: Why Incorporation Matters (A Lot!)

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“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Why do you think the drafters of the Bill of Rights included this provision?

How does / should that bear on the question of what it “means” today?

Constitutional Law: The Second Amendment

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Constitutional Law: District of Columbia v. Heller (2008)

Facts: DC essentially prohibits the possession of handguns.

Issue: Do these restrictions violate the 2A?

Holding: For a 5-4 Court, Justice Scalia says yes.

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Constitutional Law: McDonald v. City of Chicago (2010)

Issue: Should the Supreme Court’s interpretation of the 2A in Heller be incorporated against the states?

Holding: For a 4-1-4 Court, Alito, J. (with Roberts, Kennedy, & Scalia) says yes (DPC).

Concurrence: Thomas, J., concurs (P-or-I Clause)

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The 2A should be incorporated through the 14A to apply to the states because: First, there is strong evidence from the Founding

era that the 2A was “fundamental” at the time. Second, the history of Reconstruction

“§ 14 of the Freedmen’s Bureau Act of 1866 provided that ‘the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate . . . including the constitutional right to bear arms, shall be . . . enjoyed by all the citizens ... without respect to race or color. . . .”

Constitutional Law: McDonald Majority (Alito, J.)

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b. 1948, Pin Point, Georgia B.A., Holy Cross; J.D., Yale Chair, EEOC (1982-90) D.C. Circuit Judge (1990-91) Appointed by Pres. Bush (1991-) Closest conf. since 1881 (52-48) Second Black Justice (Marshall) Most ardent defender of states’

rights / sovereignty on Court Aligns with Scalia, but is more

doctrinally consistent in practice

Constitutional Law: Justice Clarence Thomas

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Argues that the 14A P-or-I Clause should be resuscitated (rather than using the Due Process Clause): “Evidence from the political branches in the years

leading to the [14A’s] adoption demonstrates broad public understanding that the P & I of United States citizenship included rights set forth in the Constitution. . . .”

“§ 1 [of the 14A] was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.”

Constitutional Law: McDonald: Thomas’s Concurrence

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Note the Justices’ odd positions in McDonald: Plurality: Justices who tend to be the staunchest

critics of “substantive due process,” have no problem relying on the Warren Court’s understanding of incorporation to apply the Second Amendment to the states.

Dissenters: Justices who tend to be the strongest supporters of substantive due process think this case is different.

Thomas: All by himself…

Constitutional Law: Taking Stock After McDonald

The Fourteenth Amendment, § 1: “[N]or shall any State . . . deny to any person

within its jurisdiction the equal protection of the laws.”

(1) What does “equal protection of the laws” mean? What kind of equality?

(2) Who is entitled to “equal protection”? (3) More generally, who is entitled to any of these

new constitutional protections?

Constitutional Law: The Equal Protection Clause of the 14A

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Issue: Can a state deny a law license to a woman without violating the 14th Amend.?

Holding: Yes. “[U]nless we are wholly and radically mistaken [about what Slaughterhouse means], the right to control and regulate the granting of licenses . . . is one of those powers which are not transferred for its protection to the Federal government.”

Constitutional Law: Bradwell v. Illinois (1873)(PCD 391-93)

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“[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . So firmly fixed was this sentiment in the founders of the common law. . . that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and . . . many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.” (392)

Constitutional Law: Bradwell: Bradley’s Concurring Opinion

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Why isn’t Bradwell an equal protection case?

Recall Miller’s opinion in Slaughterhouse: “The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.”

Constitutional Law: Bradwell v. Illinois (1873)

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Issue: Does the 14A Citizenship Clause include a right to vote as part of the citizenship it confers?

Holding: No. For a unanimous Court, Waite, C.J., rejects the “suffragist” theory of the 14A; holds that voting is not an inherent part of citizenship, and so the right to vote is not part of the rights conferred and protected by § 1 of the 14A.

Constitutional Law: Minor v. Happersett (1874)

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“For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here.” (398-99)

Constitutional Law: Minor v. Happersett (1874)

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“[W]hen the right to vote at any election for [federal or state officers] is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

Constitutional Law: The Fourteenth Amendment § 2

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The question of exactly who the Constitution protects (especially the 14A) includes two other important variations:

(1) To what extent does the Constitution protect U.S. citizens outside the territorial United States?

(2) To what extend does the Constitution protect non-citizens who immigrate to the United States?

Constitutional Law: Segue to the Extraterritorial Constitution

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