American Constitutional History Midterm

PART 1: THE CONSTITUTION — FOUNDATIONS

Background & Context

• The Constitution replaced the Articles of Confederation, which had catastrophically failed because:

  • Congress couldn't regulate interstate or foreign commerce

  • Congress couldn't raise taxes

  • Congress couldn't raise an army

  • Required unanimous state consent to amend — made change nearly impossible

• Shays' Rebellion (1786-87): Farmers stopped creditors from foreclosing on loans; the federal government was powerless to respond → exposed the AoC's fatal weakness

• The Constitutional Convention came together with three main goals:

  1. Reduce state sovereignty in a limited number of areas

  2. Replace legislative dominance with a three-branch system (legislative, executive, judicial)

  3. Remove the unanimous consent requirement

Structure of the Constitution

• Only 4,069 words; 7,076 after all amendments — one of the briefest constitutions in the world

• Only 27 amendments ever ratified

  • Fastest: 26th Amendment (18-year-old suffrage) — ratified in 1 day

  • Slowest: 27th Amendment (ban on midterm congressional pay raises) — took 203 years

• Two core organizing principles:

  • Separation of Powers: Legislative, Executive, Judicial — distinct branches with distinct functions

  • Checks and Balances: Each branch can constrain the others; diffuse authority to prevent concentration of power

• The system is partially national, partially state-level — "We the People" embodies dual sovereignty

Article I — Congress

• Bicameral legislature:

  • Senate broke popular representation → designed to diffuse power and slow legislation down (Federalist 73)

  • Time, manner, and place of elections decided by states (§4)

• Section 8: Enumerated powers of Congress, including the Elastic/Necessary and Proper Clause — gave Congress far more power than under the AoC

• Section 9 (limits on Congress):

  • Congress could stop importation of slaves (but not until 1808)

  • Writ of Habeas Corpus: Any arrested person must be brought before a judge to determine if arrest was lawful (probable cause standard); can be suspended only in cases of rebellion or invasion

  • Bill of Attainder: Prohibited — statutory punishment targeting a named individual

  • Ex Post Facto Laws: Prohibited — cannot criminalize conduct retroactively

• Section 10 (limits on states):

  • States cannot impair the obligation of contracts → Contract Clause

  • Ex post facto and bill of attainder prohibitions also apply to states

Article II — The Executive

• Electoral College: A microcosm of the state vs. federal power compromise

• Commander in Chief: Scope and breadth of powers intentionally left undefined

• Can appoint ambassadors, judges, and "other officers"

• Removal power: Whether the president can remove officers without Senate approval — left ambiguous, later contested in Myers and Humphrey's Executor

• Impeachment: For treason, bribery, and "other high crimes and misdemeanors"

  • Includes violations of law, abuses of power, or refusal to enforce statutes

  • Framers deliberately rejected a longer list including "mal-administration"

• Only natural-born citizens eligible for the presidency; "citizen" was not defined

Article III — The Judiciary

• Judicial power vested in SCOTUS and inferior courts established by Congress

• SCOTUS has original jurisdiction over cases affecting ambassadors, etc.

• SCOTUS has appellate jurisdiction over all other cases

• De Tocqueville: "No other nation constituted a judiciary as powerful as the Americans"

Articles IV–VII

• Article IV: Federalism — comity clause, guarantees each state a republican form of government

  • Enables diversity in state law ("laboratories of experimentation")

  • Promotes unity by preventing "one size fits all" conflicts

• Supremacy Clause (Art. VI): Federal law is supreme; state laws in conflict with federal law are void

• Federalism — states maintain primary jurisdiction (police power) over most matters:

  • 70M cases in state courts vs. 300K in federal courts (2024)

Slavery in the Original Constitution

• The word "slavery" never appears in the original Constitution — deliberate choice

• Four provisions accommodated slavery:

  1. ⅗ Compromise: Enslaved persons counted as ⅗ of a person for apportionment

  2. Fugitive Slave Clause: "Any person held to service or labor" must be returned

  3. Importation Clause (Art. I §9): Congress could stop importation — but not until 1808

  4. Domestic Violence Clause (Art. IV §4): Federal government protects states from slave insurrections

• The Framers entered into what Chief Justice Williams called a "guilty compromise"

The Bill of Rights

• Not in the original Constitution — added as the first 10 amendments

• Grounded in natural law theory: Pre-existing rights divorced from the Constitution that the government was obligated to protect

• Most Federalists and anti-Federalists believed a lack of a Bill of Rights would create too much ambiguity

• Created the nation as an individually rights-based, constitutional republic

• First 8 Amendments: Define individual rights

• 9th Amendment: Enumeration of certain rights doesn't deny others (natural law principle)

• 10th Amendment: Powers not delegated to the federal government are reserved to the states or the people

• Key amendments:

  • 1st: Speech, religion, press — "Congress shall make no law..." (note: many states had established churches at the time)

  • 2nd: Right to bear arms

  • 4th: Protection against unreasonable search and seizure without probable cause

  • 5th: No self-incrimination; no deprivation of life, liberty, or property without due process; no double jeopardy

    • Due Process Clause: Protects persons (not just citizens) from excessive government action; relates to both the manner/process of how law is administered AND the substance of legislation

  • 6th: Right to fair and speedy trial; access to effective counsel

  • 8th: No excessive bail, no excessive fines, no cruel and unusual punishment

Reconstruction Amendments

• 13th Amendment (1865): Prohibited slavery except as criminal punishment → created the convict labor loophole; introduced the word "slavery" into the Constitution for the first time

• 14th Amendment (1868):

  • §1: All persons born or naturalized in the U.S. are citizens; no state shall abridge privileges or immunities of citizens; no deprivation of life, liberty, or property without due process; equal protection of the laws

  • §2: Apportionment based on total population; states that deny male citizens the vote lose proportional representation (never implemented)

  • §3: No person who engaged in insurrection may hold office (Congress can remove by ⅔ vote)

  • Refuted Dred Scott with its very first sentence

  • Elevated equality to a constitutional right for the first time

  • Serious questions existed about whether its ratification procedures were proper (states were coerced into ratifying under Reconstruction Acts)

• 15th Amendment (1870): Right to vote cannot be denied on account of race, color, or previous condition of servitude

  • Broader language was considered but dropped out of fear northern states wouldn't ratify

  • Each Reconstruction Amendment ends with a clause empowering Congress to enforce it

PART 2: JUDICIAL POWER — THEORY & CONCEPTS

The Nature of Judicial Power

• Judicial Review: The province and duty of the judiciary to say what the law is; to determine whether legislation is consistent with the Constitution

• Judicial Independence: The judiciary is independent of political branches

• Judicial Sovereignty: What SCOTUS says is final and authoritative — the court alone is the definitive arbiter of constitutional meaning

• Justiciability: The court can decline to decide cases that are fundamentally political rather than legal in nature (e.g., apportionment was once deemed non-justiciable)

• The court's constitutional authority is mainly cultural — it has no army, no budget; it depends on public and political respect

• In general, the court's consensus tends to reflect public consensus; when it diverges, there is usually extreme reasoning behind the departure

Theories of Interpretation

• Originalism/Textualism:

  • The Constitution means what it meant when adopted

  • Judges can discern principles in the Framers' words and apply them to modern facts

  • Often associated with judicial minimalism — more likely to defer to the legislature

  • Subjected to criticism for conservatism, but originalists argue they are actually more populist

• Living Constitutionalism/Purposivism:

  • Meaning of constitutional text can evolve as the nation evolves

  • New meanings can be found in old words that the Framers didn't originally intend

  • Most justices try to strike a balance between extreme activism and self-restraint

• Stare Decisis: Stand by that which has already been decided

  • Often more important that an issue be settled than that it be settled correctly

  • Brennan's test for when to overturn precedent:

    1. The prior decision was egregiously wrong

    2. It caused significant negative jurisprudential or real-world consequences

    3. Overturning would not unduly upset reliance interests

Competing Theories of Judicial Role

• Departmental Review (Jefferson): Each branch of the federal government interprets the Constitution for itself; conflicts are resolved by the people through elections — president is not bound to enforce SCOTUS decisions with which he disagrees

• States' Rights View: States should be able to independently determine the constitutionality of federal laws as applied to them

• Non-Acquiescence: A branch or official refuses to comply with a court ruling (Jackson re: Cherokee; Lincoln re: Merryman)

Key Judicial Concepts

• Probable Cause: Enough evidence to find a reasonable conclusion that a crime may have been committed

• Writ of Habeas Corpus: Any arrested person must be brought before a neutral arbitrator to determine whether the arrest was lawful

• Bill of Attainder: Statutory punishment targeting a named individual — prohibited in Art. I for both Congress (§9) and states (§10)

• Ex Post Facto Law: A law criminalizing conduct that was legal when it occurred — prohibited for both Congress and states

• Obiter Dicta: Analysis in an opinion not necessary to the actual decision; not binding but often influential

• Certiorari: The process by which SCOTUS agrees to hear a case (discretionary)

• Concurring Opinion: Agrees with the outcome but for different or additional reasons; not binding

• Dissenting Opinion: Sets out disagreements with reasoning; ~80% of decisions include dissents; can later become majority views

• Chronological Dissonance: Applying modern moral assumptions to past actors uncritically to discredit them

PART 3: FEDERALIST ERA — JUDICIAL REVIEW & FEDERAL SUPREMACY

Marbury v. Madison (1803) ⭐ Most Important Case

Background:

• Judiciary Act of 1789: Created the federal judicial system; considered the most important legislation of the founding era

• Election of 1800: Jefferson defeated Adams; lame-duck Adams appointed "midnight judges" and named Marshall as Chief Justice

• Adams' Secretary of State (Marshall himself) failed to deliver the commissions before Jefferson took office

• Jefferson instructed his Secretary of State, Madison, not to deliver the remaining commissions

• Marbury petitioned SCOTUS directly for a writ of mandamus (an order compelling an official to perform a duty) — Congress had granted SCOTUS this power in the Judiciary Act

The Political Trap:

• If Marshall ordered delivery and Jefferson refused → court would be shown to be powerless

• If Marshall ruled for Jefferson → court would appear subordinate to the executive

• Marshall's genius: ruled against Marbury on jurisdictional grounds, giving Jefferson a political victory while establishing sweeping judicial power in the reasoning

Marshall's Three Questions:

1. Does Marbury have a right to the commission? → Yes

2. Does the law give him a remedy? → Yes, under the Judiciary Act

3. Is mandamus from SCOTUS the right remedy? → No — the Judiciary Act unconstitutionally extended SCOTUS's original jurisdiction beyond what Art. III allows; since Jefferson didn't have to do anything, the ruling couldn't be defied

Key Principles Established:

• Judicial Review: "It is emphatically the province and duty of the judicial department to say what the law is"

• Constitutional Supremacy: A law repugnant to the Constitution is void; the Constitution is superior to any act of the legislature

• Judicial Sovereignty: Once an issue reaches SCOTUS, that court alone is the final arbiter of constitutional meaning

• Marshall also began the tradition of delivering a single collective court opinion rather than seriatim opinions

Aftermath & Opposition:

• Jefferson was furious — saw it as a threat to popular democracy → advanced departmental review as a counter-theory

• Congress attempted impeachment of Justice Samuel Chase (rode circuit with all anti-Federalists removed from juries; publicly attacked Jefferson) → Chase was acquitted in the Senate → established that judges should not use their offices for political purposes

Federal vs. State Supremacy

Fletcher v. Peck (1810):

• Georgia legislature voided corrupt land grants; new owners challenged

• Holding: Even if a state enters a contract corruptly, it cannot void that contract — it remains protected by the Contracts Clause (Art. I §10)

• Significance: First time SCOTUS used the Supremacy Clause to overturn a state statute; broad reading of the Contracts Clause

Martin v. Hunter's Lessee (1816):

• Martin sued Virginia for land; Virginia state courts claimed final jurisdiction over their own decisions

• Marshall recused himself (he had acquired loyalist land in Virginia)

• Holding: A state court decision is subject to federal review on any federal issue; the Judiciary Act validly gave SCOTUS appellate jurisdiction over state courts

• Principle: Federal jurisdiction extends to all cases involving federal law, even where the case originates in state courts

Cohens v. Virginia (1821):

• Cohens convicted under Virginia law for selling out-of-state lottery tickets; Virginia claimed the state court's decision was final

• Virginia's argument: Constitution cannot give appellate jurisdiction over cases where a state is a party; state courts have final say over their own laws

• Holding: No exception in Art. III §2 for state involvement; federal appellate jurisdiction over state courts on federal questions is plenary

• Judicial Consolidationism: If a federal issue is involved, federal courts ultimately have jurisdiction

• Marshall appeased states' rights advocates by upholding the conviction on the narrow ground that the federal lottery law only applied to D.C.

• Reaffirmed judicial review, judicial sovereignty, and constitutional supremacy

McCulloch v. Maryland (1819) ⭐

Background:

• Congress created the First Bank of the U.S., let its charter expire, then created the Second Bank in 1816

• Maryland passed a law taxing the Bank; McCulloch (Bank cashier) refused to pay

Issue 1: Can Congress create a bank?

• Maryland argued "necessary" (in the Necessary and Proper Clause) means strictly essential — if Congress could function without the bank, it wasn't permitted

• Marshall's answer: "Necessary" means useful, appropriate, or conducive to — not strictly indispensable; Congress decides the extent of "necessary"

• The Constitution's great powers must be understood to carry with them the lesser powers needed to execute them

• Marshall's test for implied powers (still used today):

  • Let the end be legitimate

  • Let the end be within the scope of the Constitution

  • All means which are appropriate, plainly adapted to that end, and not prohibited are constitutional

• Caveats Marshall imposed:

  • Court will strike down laws pursuing ends prohibited by the Constitution

  • Court will strike down laws where Congress acts under the pretext of a constitutional provision while actually pursuing impermissible ends

  • Means chosen must be appropriate — not unlimited

Issue 2: Can Maryland tax the federal bank?

• Maryland argued Compact Theory — states are sovereign and retain power over entities within their borders; also cited the 10th Amendment

• Marshall's answer: "The power to tax is the power to destroy"

• The Supremacy Clause prevents states from negating federal power

• Response to 10th Amendment: There was no pre-constitutional right to tax a federal entity because that entity didn't exist before the Constitution

Aftermath:

• Extremely controversial — Marshall anonymously wrote 9 newspaper articles defending the opinion

• (1832) Jackson vetoed rechartering of the Bank on constitutional grounds, arguing that prior SCOTUS approval didn't bind the executive or legislature — classic example of departmental review

• Jackson withdrew all deposits → Panic of 1837

PART 4: CONTRACT CLAUSE & THE COMMERCE CLAUSE

Contract Clause Cases

Dartmouth College v. Woodward (1819):

• New Hampshire legislature increased the Board of Trustees to give the non-Federalist governor control over the college's board majority

• Holding (5-1): A corporate charter is a contract protected by the Contracts Clause; the state had no right to alter it by legislation

• Established the Doctrine of Vested Rights: Rights which are protected from government interference once lawfully acquired

• Established the concept of the corporation as an artificial, immortal being — a perpetual succession of persons treated as a single individual → precursor to corporate personhood

• Note: Corporations could include a reservation clause allowing the state to later modify the charter

Charles River Bridge v. Warren Bridge (1837) (Taney Court):

• Boston toll bridge objected to Massachusetts chartering a competing bridge that would become toll-free once construction costs were recouped

• Holding (5-2): The state charter did not imply a monopoly; ambiguities in charters should be construed narrowly in favor of the state's power to legislate for the public good

• When a conflict exists between general welfare and a charter grant, the grant is interpreted narrowly

• No state charter grants monopoly rights to a company providing public services — that would constrict competition and exploit the public

• Tension with Dartmouth:

  • Dartmouth (Marshall): broad protection of vested rights/private property

  • Charles River Bridge (Taney): public welfare can override narrow readings of private grants

• Dissent (Story): Courts should construe contracts in favor of the contracting party; the proprietors had furthered the public good and deserved protection

• Result: Infrastructure charters skyrocketed — states could now grant multiple competing charters → national development accelerated

Commerce Clause Cases

Gibbons v. Ogden (1824) ⭐

Background:

• New York granted Livingston & Fulton an exclusive license to operate steamboats in NY waters; Ogden bought those rights

• Gibbons had a federal license to operate in interstate waters, which overlapped with Ogden's NY waters

• Ogden sued; Gibbons argued his federal license was supreme

Marshall's Broad Definitions:

• "Commerce": More than just traffic in goods — includes all commercial intercourse between nations and among the states, including navigation

• "Among the States": More than just between states — includes any activity within a state that affects commerce beyond its borders (effects test); not limited to what crosses state lines

• "Regulate": Power to prescribe whatever rules Congress chooses; exercised to its utmost extent, limited only by the Constitution itself

• Congress has exclusive and supreme power to regulate interstate commerce

• States retain concurrent power over purely intrastate commerce

Concurrent Jurisdiction:

• Marshall did not take the most extreme position (federal exclusivity over all commerce)

• States can enact laws within their borders that affect both interstate and intrastate commerce, so long as they don't conflict with federal law

Johnson's Concurrence — Dormant Commerce Clause:

• Proposed that the Commerce Clause itself bars states from regulating interstate commerce regardless of any congressional action

• States had no authority to regulate commerce that affected interstate commerce even in the absence of federal action

• Rejected by Marshall and later by Taney

Significance: Called the "Emancipation Proclamation of Commerce" — liberated interstate commerce from state-by-state regulation

Cooley v. Board of Wardens (1852) (Taney Court):

• Pennsylvania law required ships to pay a fee if they didn't use local pilots; Cooley (ship owner) argued pilotage was interstate commerce governed exclusively by Congress

• Holding (7-2): The fee was constitutional — pilotage is a fundamentally local matter permissible for state regulation so long as:

  • It doesn't require nationally uniform regulation

  • It doesn't interfere with existing federal law

• Congressional inaction in an area doesn't mean states are prohibited from acting there

• Prospective state legislation in fundamentally local matters is permissible even if Congress could preempt it

• States cannot impose undue burdens on or discriminate against interstate commerce — this becomes the modern dormant commerce clause standard

• Dormant Commerce Clause (rejected): Both Marshall and Taney rejected the idea that states can never regulate any aspect of interstate commerce absent congressional action

PART 5: SLAVERY, NULLIFICATION & ANTEBELLUM CRISIS

Slavery — Political Background

• Cotton gin (1794): Transformed slavery from a politically contested institution into an economic imperative in the South → dynamic of political pressure shifted dramatically

• Slavery spread throughout the Southeast; free and slave states reached a de facto balance agreement

• Missouri Compromise (1820): First major regional conflict — Missouri entered as a slave state; maintained the free/slave state balance; prohibited slavery north of the 36°30' line

• Compromise of 1850: California as a free state; new and far harsher Fugitive Slave Act; popular sovereignty in new territories

• Kansas-Nebraska Act (1854): Stephen Douglas proposed popular sovereignty to allow the territory to be slave or free → Bleeding Kansas (1854-1861) — 7-year civil conflict → directly led to formation of the Republican Party in 1854

• Election of 1860: Lincoln won electoral vote (lost popular vote); South Carolina seceded in December

• The "Other 13th Amendment" was proposed before the Civil War: would have prohibited Congress from ever interfering with slavery in any state — 5 northern states actually ratified it, but southern states seceded anyway

Nullification and Secession — Constitutional Theories

Virginia & Kentucky Resolutions (1798):

• Context: Alien & Sedition Acts expanded federal power dramatically — criminalized criticism of the government; 10 Jeffersonians convicted; residency requirement raised from 5 to 12 years

• Jefferson secretly authored the Kentucky Resolution; Madison secretly authored the Virginia Resolution

• Written before Marbury — no concept of judicial sovereignty yet

Virginia Resolution (Madison) — Interposition:

• Compact Theory: The Constitution is a compact among the states; states are parties to the compact

• Doctrine of Interposition: When the federal government takes deliberate, palpable, unconstitutional action, states have an obligation to interpose themselves between the national government and their citizens

• Federal powers were limited to those specifically enumerated

• → Alien and Sedition Acts were unconstitutional

• Written in broad, aggressive, antinational language

Kentucky Resolution (Jefferson) — Compact Theory:

• The federal government has no authority to judge the extent of its own powers

• Its unconstitutional acts are "void and of no force"

• Sovereign and independent states have the power to nullify unconstitutional federal laws

• Jefferson's original draft was scaled back from what ultimately passed

Responses:

• No states supported the resolutions; 7 states passed resolutions condemning them

• Built on by departmental review — the president is not bound to enforce SCOTUS decisions with which he disagrees

Nullification Crisis (1830s):

• Arose not from slavery but from protective tariffs ("Tariff of Abominations") — southern states deemed these harmful to the southern economy and benefiting northern manufacturing

• South Carolina challenged the meaning of "general welfare" (Art. I §8) and passed the Ordinance of Nullification — declaring federal tariffs unenforceable within the state

• Constitutional argument: Constitution doesn't specify who has the power to review federal laws; as parties to the compact, states can judge when it has been violated

• Haynes-Webster Debate: Haynes argued for state independence; Webster argued the union was strengthened by federal consolidation and that the people — via SCOTUS — decide constitutionality

• Jackson's response: Rejected nullification as treasonous; believed strongly in the union and federal supremacy; issued a proclamation calling it unconstitutional; a dozen states adopted resolutions rejecting nullification

• Madison came out of retirement to clarify nullification was never what the Virginia Resolution intended

• Outcome: Principles of nullification and secession were ultimately resolved by the Civil War, not the courts

Secession — Not Exclusively a Southern Issue:

• Hartford Convention (1814): New England states during the War of 1812 considered secession

• Constitution is silent on the power of nullification or state secession

Key Slavery Cases

Prigg v. Pennsylvania (1842):

• Pennsylvania laws (1788–1826) made it a felony to forcibly remove any Black person from the state for the purpose of enslaving them; designed to close loopholes in the Fugitive Slave Act

• Prigg was convicted for violating the PA law while recapturing an escaped slave

• Holding:

  • PA law was invalidated — it conflicted with the federal Fugitive Slave Act under the Supremacy Clause

  • Recovery of fugitive slaves was an exclusively federal matter

  • States could not pass their own laws conflicting with federal fugitive slave law

  • But states also could not be forced to enforce federal law — Constitution doesn't require states to enforce federal statutes (no commandeering)

  • State officials could enforce the act but were not required to

• Aftermath: Spurred northern states to pass personal liberty laws — the most a state could do was refuse to allow state participation in slave recapture; the Fugitive Slave Act of 1850 was the first federal commandeering legislation, demanding state cooperation

Dred Scott v. Sandford (1857) ⭐

Background:

• Scott was enslaved; his owner took him to a free territory for years; Scott argued he was free because he had lived on free soil

• An abolitionist lawyer called this case "a blot on national freedom" — it was Chief Justice Taney who wrote the opinion (Taney believed he was doing the right thing for the country)

Taney's Opinion (held unconstitutional by Reconstruction Amendments):

• Black people (enslaved or free) were not citizens and had no standing to sue in federal court

• Even if Scott had standing, living on free soil did not emancipate him — slaveowner's property rights followed them

• The Missouri Compromise was unconstitutional: Congress had no power to ban slavery in the territories — doing so deprived slaveholders of property without due process of law

• First major application of substantive due process: Slaveholders' 5th Amendment property rights could not be infringed by Congress

Political Aftermath:

• Douglas used the decision to support popular sovereignty — even SCOTUS agreed Congress couldn't impose free soil

• Lincoln argued the decision opened a conspiracy to nationalize slavery — used it as a key argument in the 1858-60 election cycles

• Helped trigger the Panic of 1857 — land values dropped, railroads collapsed, banks failed

• Directly reversed by the Reconstruction Amendments

Worcester v. Georgia (1832) & McGirt v. Oklahoma (2020)

Worcester v. Georgia:

• Worcester was a missionary working in Cherokee territory; Georgia tried to prosecute him under state law

• Holding: The Cherokee Nation was a sovereign, independent political community; Georgia state law had no force within Cherokee territory; treaties between the U.S. and Cherokee preempted state law

• Jackson's response: Refused to enforce the ruling — "the court has made its decision; now let it enforce it" → classic non-acquiescence

• Resulted in Jackson forcing the removal of the Cherokee → Trail of Tears

• Jackson believed he had the right to exercise independent judgment on how law was enforced; he disagreed with the Court and was not obligated to support it

McGirt v. Oklahoma (2020):

• McGirt, a member of the Seminole tribe, was convicted by an Oklahoma court for crimes committed in what had been Indian Territory

• Holding: The treaties giving Native Americans their new lands survived Oklahoma statehood; tribal sovereignty was never formally terminated; crimes committed in that territory fell under federal, not state, jurisdiction

• Raised profound questions of public safety, private property rights, state taxation, and racial identity (who qualifies as Native American)

• Oklahoma v. Castro-Huerta later stepped back slightly from McGirt, allowing some state jurisdiction

PART 6: THE CIVIL WAR — CONGRESSIONAL & PRESIDENTIAL POWER

Prize Cases (1863)

Background:

• After Fort Sumter (April 1861), Lincoln blockaded Confederate ports on April 19 — Congress was in recess and had not yet declared war or authorized the blockade

• Congress declared the south in insurrection on July 13, 1861

• British and Mexican ship owners challenged the seizure of their vessels, arguing no legal state of war existed when Lincoln acted

Key Issues:

• Did the President have power to impose a blockade without congressional authorization?

• Was there a legally recognized "war" for purposes of international law?

Holding (5-4):

• President has the whole executive power and could respond to insurrection with the powers of a Commander in Chief

• The court would not "affect ignorance of the existence of a war that the whole world acknowledged"

• (1708, 1807) Prior congressional acts allowed the president to use force to suppress insurrection

• The Civil War had a dual status: a domestic insurrection (where president has plenary powers) but with attributes of a foreign war (making international law of blockade applicable)

• Lincoln would not concede the Confederacy was a sovereign state — it was a domestic insurrection

Dissent (Nelson, joined by Taney, Clifford, Catron):

• Constitutional constraints on the president require congressional action before a state of war exists

• Framers thought about presidential inaction (citing Shays' Rebellion, which occurred while Congress was in session — so the emergency exception doesn't apply)

Habeas Corpus & Military Tribunals

Ex Parte Merryman (1861):

• Not a SCOTUS case — Chief Justice Taney was riding circuit in Maryland

• A Maryland militia officer was arrested and held by the military; Lincoln had suspended habeas corpus while Congress was in recess

• Art. I §9 places the suspension power in Article I (the legislative article), though it doesn't expressly say who can suspend

Taney's Ruling:

• The President cannot suspend habeas corpus nor order anyone else to do so — only Congress can

• Taney did not order Merryman's release (knew the order would be defied, which would weaken the court's authority)

• Cited English common law and the placement of the suspension clause in Article I

Lincoln's Defiance:

• In times of grave danger, especially when Congress couldn't be called to session, the President/Commander in Chief has broader powers to preserve national security

• Congress later approved and legalized all prior presidential acts regarding the army — effectively ratifying the suspension

• Mixed political reaction: Many argued Taney supported traitors; Taney himself believed the South had a constitutional right to secede

Aftermath:

• Weakened SCOTUS in the public eye during the war

• Established the non-acquiescence principle — a president can refuse to comply with a court ruling when he believes it is constitutionally wrong

Ex Parte Milligan (1866) ⭐

Background:

• Lambdin Milligan was an Indiana civilian (member of the Union, fully functioning civilian courts open in Indiana) arrested for allegedly distributing weapons to Confederate sympathizers

• Lincoln suspended habeas corpus nationwide in September 1862; Congress endorsed the suspension but not the use of military tribunals

• Thousands of civilians arrested and held without trial; dozens of northern newspapers censored; one congressman deported to the Confederacy

• Decision was issued after the Civil War ended (April 1865)

Issues:

1. Can the president or Congress authorize military tribunals for civilians?

2. Does martial law apply in states with functioning civilian courts?

3. Can habeas corpus be suspended?

Holding:

• 9-0: Neither the President nor Congress could subject a civilian to a military tribunal — this applied to all circumstances

• Suspension of habeas corpus does not authorize a different form of trial — it only waives the right to a speedy trial

• 5-4: When civilian courts are open and functioning, martial law cannot exist there — it is not needed and cannot constitutionally be imposed

• Famous quote: "The Constitution of the United States is a law for rulers and people, equally in war and in peace"

Significance:

• One of the clearest statements that constitutional rights survive wartime

• Limits on presidential and congressional war powers when the civilian judicial system is functioning

Ex Parte Garland (1867):

• Congress required an "ironclad oath" — swearing one had never supported the Confederacy — to practice before federal courts

• Holding (5-4): The oath was a bill of attainder (punishing named/identifiable groups) and an ex post facto law (punishing retroactively for past conduct)

• Violated Art. I §9 (limits on Congress)

• Dissent (Miller): The oath was universal (not targeted at individuals), and the prospective provision wasn't ex post facto

Ex Parte McCardle (1869):

• A former Confederate used habeas corpus to challenge his military detention; while the case was pending, Congress repealed the jurisdiction of federal courts to hear such claims

• Holding (9-0): The repeal was valid — Congress can strip courts of appellate jurisdiction over any matter it chooses

• Art. III gives Congress power to establish and limit the jurisdiction of inferior courts; Congress controls appellate jurisdiction of SCOTUS except where Constitution mandates original jurisdiction

Reconstruction — Congressional vs. Presidential Power

Johnson's Reconstruction Approach:

• Allowed ex-Confederates to run for office

• Permitted states to enact Black Codes — laws that enforced pre-Civil War socioeconomic hierarchies; limited occupations, landowning, employment, movement

• Returned Confederate land to pre-war owners

• Johnson argued his approach reflected what Lincoln would have done

Congress's Response:

• Art. I gives Congress the power to judge elections; Congress refused to seat Southern representatives until states followed congressional guidelines

• Required ratification of the 14th Amendment to rejoin the Union

• Passed Military Reconstruction Acts — placed Southern states under military rule

• Passed the Tenure of Office Act — required Senate consent to remove any officer who had required Senate confirmation to appoint

Johnson's Impeachment:

• Johnson removed Secretary of War Stanton (a Radical Republican) without Senate consent

• House voted to impeach for violating the Tenure of Office Act

• Acquitted in the Senate by 1 vote — the closest presidential impeachment conviction in history

• Congress passed numerous acts to reduce Johnson's power further

Mississippi v. Johnson (1867):

• Mississippi sought to enjoin President Johnson from enforcing the Reconstruction Acts

• Holding: No sitting president can be enjoined by a court from performing executive functions — separation of powers prohibits such an order

Texas v. White (1869):

• Texas tried to reclaim bonds sold by its Confederate government; Texas was under military rule during Reconstruction

Issues:

1. Did Texas have standing to appear before SCOTUS?

2. Could Texas reclaim the bonds sold during secession?

Holding (5-3):

• Texas never left the Union — secession was legally void; therefore Texas had standing to sue as a state

• The bonds sold by the Confederate government of Texas were null and void — acts of an unlawful, secessionist government had no legal force

• Reconstruction Acts were a valid exercise of Congress's duties under the Guarantees Clause (Art. IV §4)

• Texas's reinstated government could recover the securities

Significance:

• A state cannot leave the Union — secession is legally impossible

• A state retains its existence as a state even without congressional representation or while under military rule

• Provided the constitutional framework legitimizing Congressional Reconstruction

Legal Tender Cases

Hepburn v. Griswold (1870):

• Congress issued paper money (greenbacks) during the Civil War; the Legal Tender Act required creditors to accept paper money even for pre-existing contracts that specified gold or silver

• Holding (4-3): The Legal Tender Act could not be applied to pre-existing contracts — impaired contractual obligations

• Contracts Clause only applies to states, but court applied the principle through the 5th Amendment's due process and just compensation implications to the federal government

• Chief Justice Chase (who had been Treasury Secretary and helped create the greenback system) wrote the majority opinion striking it down

Knox v. Lee (1871):

• Court was packed just before this case was argued — two new justices were added, shifting the balance

• Holding: Reversed Hepburn; the Elastic Clause gave Congress sufficient power to issue paper money; applying it to pre-existing contracts was necessary for consistent application

• Should not hold an act invalid merely because a provision seemed harsh

• Bradley's Concurrence: The U.S. is a sovereign national government; under the Elastic Clause, Congress may issue financial measures; legal tender laws may have short-term negative effects but are important for long-term stability; inherent sovereign powers — embodied by the executive — support this

Significance:

• Demonstrates how targeted court appointments directly overturn precedent

• Confirmed Congress's implied power to manage the national currency

• Repayment in paper currency did not violate the impairment of contracts

PART 7: POST-CIVIL WAR — CIVIL RIGHTS & EQUAL PROTECTION

SCOTUS's Narrow Reading of the Reconstruction Amendments

Reasons for SCOTUS retreat from civil rights enforcement:

• Widespread racism and prevailing scholarship portraying Reconstruction as a failure

• Opposition to the cost of keeping the military in the South

• Social Darwinism — government shouldn't promote racial or economic equality; the fittest should be left alone to thrive

• Majority of the court adopted a legal approach that sought to "cabin" the Reconstruction Amendments as not effecting a fundamental national change

Minor v. Happersett (1876):

• Virginia Minor, a suffragist, challenged the registrar's refusal to register her to vote, arguing that citizenship and voting were inseparable under the 14th Amendment

• Issues: Are women citizens? Does citizenship guarantee the right to vote?

• Holding (unanimous):

  • Women are and always have been citizens

  • Citizenship does not guarantee the right to vote

  • The 14th Amendment did not add to the privileges and immunities of citizens — if suffrage had been a privilege of citizenship, it would already have been enforced in states before the amendment

  • "If the court can consider any question settled, it is this one"

• Aftermath: Required the 19th Amendment to fix; consistent with prior cases barring women from law licenses

U.S. v. Cruikshank (1876):

• Testing the validity of the Enforcement Act of 1870; arose from the Colfax Massacre — a confrontation involving a Black state militia that resulted in mass killings

• The Enforcement Act criminalized groups banding together to deny others the right to vote

• Holding:

  • 14th Amendment limits only state action, not individual action; the Enforcement Act targeted individuals → unconstitutional

  • 1st Amendment only protects citizens from congressional action, not from private individuals — up to states to protect citizens from each other

  • Federal government cannot criminalize private interference with constitutional rights

  • States retain exclusive power to protect their citizens' rights under the Bill of Rights

U.S. v. Reese (1876):

• A Black man in Kentucky was denied the ability to pay a poll tax and therefore couldn't vote; charged under the Enforcement Act (15th Amendment enforcement)

• Holding:

  • Congress can only prohibit denial of voting rights on the basis of race

  • Since the Enforcement Act prohibited any interference with voting (not just racial), it went beyond the 15th Amendment

  • The entire enforcement provision was struck down as overbroad

  • Concurrence/Dissent (Clifford): Leave the Enforcement Act intact; just don't reach the indictments

U.S. v. Harris (1883):

• KKK Act of 1871 focused on protection of rights under state law

• Holding: Unconstitutional — 14th Amendment is a guarantee against state government, not individuals; very narrow reading of congressional enforcement power under the Reconstruction Amendments

Civil Rights Cases (1883) ⭐

Background:

• Civil Rights Act of 1875 (passed by lame-duck Republican Congress): Entitled all persons to equal enjoyment of public accommodations, inns, transportation, theaters — regardless of race

• Five cases consolidated from various states; all involved private (not state-directed) racial discrimination

Holding:

• First two sections of the Civil Rights Act were unconstitutional on both 13th and 14th Amendment grounds:

• 13th Amendment analysis: Ended slavery in its most literal sense; allowed Congress to legislate against badges and incidents of slavery, but did not reach private discrimination in accommodations

• 14th Amendment analysis: Only prohibits "state action of a particular character"; individual action by private persons is not prohibited; Congress can only correct discriminatory state laws after they're passed, not preemptively regulate private behavior

• There must come "some stage" where a formerly enslaved person "ceases to be the special favorite of the laws" and becomes a "mere citizen"

Harlan's Famous Dissent:

• Grounds were "too narrow and artificial"

• Congress — not the courts — should be the arbiter of social policy

• The 13th and 14th Amendments were meant to reach the substance of civil equality, not just the technical form of state action

• Praised as one of the most elevated opinions in SCOTUS history

Aftermath:

• Critics compared it to Dred Scott

• South accelerated passage of Jim Crow laws — literacy tests, grandfather clauses (exempting from voting restrictions anyone eligible to vote in 1867 and their descendants), poll taxes

• Every other state outside the South adopted some civil rights protections — but these only affected ~10% of Black Americans

• Black voting was virtually eviscerated; later courts found these statutes were prima facie violations due to disproportionate impact

Immigration & Equal Protection

Yick Wo v. Hopkins (1886):

• Background: Chinese population had skyrocketed in San Francisco; major hostility; Congress passed Chinese Exclusion Act (1882) prohibiting Chinese laborers from entering and barring Chinese immigrants from citizenship

• San Francisco law required permits for laundries operating from wooden buildings (fire hazard rationale); virtually all Chinese applicants were denied; all non-Chinese applicants were approved; Yick Wo's laundry had already been inspected and approved by fire wardens

• Yick Wo was arrested by Hopkins for operating without a permit

• Holding (unanimous):

  • Biased enforcement violated the Equal Protection Clause of the 14th Amendment

  • The law on its face may appear universal but can be challenged if:

    • It was intended to be discriminatory

    • It is applied discriminatorily in practice

  • The board's permit decisions were "purely arbitrary" — no standard, entirely subjective

  • Rights of petitioners are not lesser because they are foreigners — the 14th Amendment protects "any person subject to the jurisdiction thereof," not only citizens

  • Cited prior treaty with China

• Aftermath:

  • Some courts have moved beyond discriminatory intent to disparate impact — showing a law has a disproportionate racial effect even without proving intent

  • EPC has not been interpreted to require that every person be treated identically — differences in treatment may be justified under state police power

U.S. v. Wong Kim Ark (1898):

• Background: Wong was born in California to Chinese parents who were lawful permanent residents; was denied reentry to the U.S. after visiting China under the argument that he was not a citizen

• Opposition argued he was not a citizen because his parents were Chinese subjects

• Holding (6-2):

  • Wong acquired American citizenship by birth on U.S. soil — established jus soli (citizenship by soil) for the 14th Amendment

  • Any person born in the U.S. to parents with permanent domicile in the U.S. is a citizen, regardless of parents' national citizenship

  • Three exceptions to jus soli identified in dicta:

    1. Children of foreign diplomats

    2. Children of enemy invaders

    3. Native Americans (addressed separately later)

Trump v. CASA (2025):

• Background: Trump signed an EO on January 20, 2025 asserting that the 14th Amendment's citizenship clause excludes children born to parents who are unlawfully present in the U.S. (or whose mother's presence was lawful but temporary and whose father was not a lawful citizen or permanent resident); multiple district courts issued nationwide injunctions blocking it

• Issues: Can a district court issue a nationwide (universal) injunction against a president's non-ministerial executive actions going beyond the parties before the court?

• Holding: Did not address the constitutionality of the EO itself

  • Federal courts only possess the power to grant relief to parties before them

  • No historical precedent for nationwide injunctions under the 1789 Judiciary Act

  • Based on English equity reasoning — "complete relief" is narrower than "universal relief"

  • A district judge cannot enjoin a president's actions beyond the parties in the case

  • Left to lower courts to determine whether narrower injunctions are sufficient

  • Suggested class action as a potentially appropriate vehicle for broader relief

• Concurrences:

  • Thomas: Can't expand "complete relief" to essentially perform a universal injunction

  • Alito: Warned class action door being kept open is another path to nationwide relief

• Dissents:

  • Sotomayor: Judiciary Act and equity cases support broader relief

  • Jackson: Judicial power demands adherence whenever executive unconstitutional action is concerned; relief should follow the scope of the violation

• Aftermath: Class action immediately filed in New Hampshire (exactly what Alito feared); administration appealed class certification

Plessy v. Ferguson (1896) ⭐

Background:

• Louisiana's Separate Car Act required equal but separate accommodations for Black and white passengers on intrastate railroads — the first law to mandate private discrimination

• Case was deliberately staged by civil rights activists (Homer Plessy was ⅛ Black — tested where the racial line was drawn)

• Louisiana argued it was a valid state police power regulation

Holding (7-1):

• Upheld the Separate Car Act — established "separate but equal" as a constitutional doctrine

• 13th Amendment: Addressed the abolition of slavery in its most literal sense; didn't touch social arrangements like segregation

• 14th Amendment: Guaranteed legal and political equality, not social equality; if civil and political rights are equal, the Constitution cannot eliminate social distinctions

• The argument that enforcing separation "stamps the colored race with a badge of inferiority" — the court said this was only because Black people chose to put that construction on it

• Applied to both races "equally" (echoing Plessy analysis rejected later in Loving)

Harlan's Dissent:

• "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens"

• Segregation humiliates and degrades Black citizens; real purpose is to keep Black citizens in a position of inferiority

• This decision will prove as pernicious as Dred Scott

Aftermath:

• At the time, the case drew little attention as a "railroad case"

• Over the next 40 years, 15+ states enacted segregation laws in virtually every area of social life

• Controlled American law for 58 years until Brown (1954)

Williams v. Mississippi (1898):

• Williams indicted by an all-white jury; Mississippi required jury members to be qualified voters; poll taxes, literacy tests, and other devices effectively eliminated Black voters

• Holding: Mississippi's voter qualification laws didn't show "evil occurred, merely that evil was possible" — a proof standard that made it nearly impossible to challenge discriminatory voting laws on their face

Flowers v. Mississippi (2019):

• Curtis Flowers was tried 6 times for murder; prosecutors dismissed 41 of 42 Black jurors presented

• Holding (7-2): Trial court committed clear error in striking Black jurors; racially biased jury selection violated EPC

• Applied Batson v. Kentucky framework: Once a defendant makes a prima facie case of racial discrimination in jury selection, the state must provide race-neutral reasons for each dismissal; can't use peremptory challenges on the basis of race

• Dissent (Thomas, joined by Gorsuch): Court shouldn't have granted the case; allowed a criminal to go free; showed "utter disrespect" for the Mississippi courts

PART 8: STATE POLICE POWER & SUBSTANTIVE DUE PROCESS

Police Power vs. Individual Rights — The Framework

Substantive Due Process:

• The court examines not just whether the procedure was fair, but whether the substance of the law is consistent with constitutional norms

• Has applied to economic legislation (Lochner era) and later to personal liberties (Meyer, Pierce)

• Judicial proponents of substantive due process do not argue for judicial restraint — they strike down laws that improperly infringe on liberty

Procedural Due Process:

• In order for government to impose a burden, it must do so through fair procedures — focused on the process of how the law is administered, not the content of the legislation itself

State Police Power Cases

Slaughterhouse Cases (1873):

• First case to deal with the 14th Amendment

• Louisiana state law created a monopoly for a single slaughterhouse in New Orleans (ostensibly for sanitation); other butchers challenged as a violation of their rights under the 14th Amendment

• Holding: Upheld the law as a valid exercise of state police power

• Gave a broad reading to state police power and a narrow reading of what rights are encompassed by federal citizenship

• Privileges and Immunities of national citizenship (narrow) vs. privileges and immunities of state citizenship (broad)

• Due Process and Equal Protection Clauses were read very narrowly

• Supported the Reconstructionist biracial Louisiana legislature that passed the law

Munn v. Illinois (1877) ("Granger Cases"):

• Background: Granger Laws — state statutes (IL, MN, IA, etc.) supporting farmers against railroad and warehouse monopolies; farmers had lost negotiating power and faced enforced dependency

• Munn and Scott operated a grain warehouse in Illinois; the state regulated storage costs; they charged above the legal rate

• Issue: Does the IL price regulation law violate the Due Process Clause of the 14th Amendment?

• Holding (7-2):

  • Constitutional — does not violate the DPC

  • Property used in a manner affecting the public interest is subject to state regulation

  • "When private property becomes clothed with a public interest, it becomes subject to public control"

  • Historical precedent: long before the 14th Amendment, legislatures regulated businesses affecting the public

  • Judicial Restraint: "For protection against abuses by legislatures, the people must resort to the polls, not to the courts"

  • Where there is doubt, the expressed will of the legislature should be followed

• Field's Dissent: Argued for substantive due process protections against state regulation; labeling a private business "public" doesn't transform it; dangerous expansion of state power

• Aftermath:

  • State regulation of railroads was also upheld

  • States can regulate in the economic sphere if it is intrastate commerce or falls within concurrent jurisdiction on interstate commerce

  • Later courts (Lochner era) limited the "public interest" doctrine to a narrow class of businesses (public utilities)

The Lochner Era — Substantive Due Process & Economic Liberty

Santa Clara County v. Southern Pacific Railway (1886):

• California law allowed individuals to deduct mortgages from taxable property value but not corporations

• Holding: Chief Justice Waite's (brief) interpretation held that corporations were persons for purposes of the 14th Amendment's DPC

• Did not require extended analysis — the principle was announced in the headnote

• Key in protecting corporations in substantive due process claims throughout the Lochner era

Allgeyer v. Louisiana (1897):

• Louisiana prohibited out-of-state insurance companies from operating without a business presence in the state

• Holding (9-0): The 14th Amendment DPC protects individuals' liberty to enter into contracts with businesses of their choosing, including out-of-state companies

• A resident cannot be prohibited from contracting with a foreign company to protect their own interests

• First time the Court expressly articulated economic liberty (freedom of contract) as protected by the DPC

Holden v. Hardy (1898):

• Utah law limiting work hours for miners and smelters

• Holding: Upheld as valid exercise of state police power — rational basis review

• Health and safety justifications were sufficient to sustain the law

• Peckham's dissent: previewed Lochner arguments about economic liberty

Lochner v. New York (1905) ⭐

Background:

• New York Bakeshop Act: No employee could work more than 10 hours per day or 60 hours per week in a bakery

• Enormously popular law; bakers worked in terrible conditions

• NY argued it was a public health measure; Lochner argued it violated his right to contract with his employees

Holding (5-4) — Peckham's Majority:

• The 14th Amendment liberty includes the right to make contracts — economic liberty / freedom of contract

• NY's law was not a legitimate exercise of police power — it was an unreasonable, unnecessary, and arbitrary interference with the right to contract

• The hours restriction was not sufficiently connected to a genuine health purpose

• Only the hours provision was struck down; every other part of the law was upheld

• State must bear the burden of showing a direct, real, substantial connection to health and safety to justify the regulation

Holmes' Famous Dissent:

• Majority is making a political, not legal decision

• "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"

• No principles of natural law override the Constitution

• Judges should respect the right of the majority to embody their opinions in law through the legislature

• His or anyone's opinion could be wrong; must allow the legislature room to experiment

• A judge's job is to look at the application of law in the real world — upheld legislation even when he personally disagreed with it

• Classic statement of judicial restraint

Harlan's Dissent:

• Court should take judicial notice that baking is genuinely unhealthy

• There should be a presumption in favor of legislation — judicial restraint

• The state had adequate health justification for the law

The "Lochner Era" (1905–1937):

• SCOTUS issued a slew of decisions invalidating federal and state regulations of working conditions

• Economic formula: Liberty = ability to enter contracts = economic liberty → state regulation must overcome a heavy burden

• Seemingly at odds with Munn's deference to legislative judgment

Muller v. Oregon (1908):

• Oregon law limiting maximum working hours for women in laundries; challenged under Lochner arguments

• The Brandeis Brief: Attorney Louis Brandeis (counsel for the state) submitted an unprecedented brief:

  • Only 2 pages of legal argument

  • 100+ pages of extra-legal information: medical studies, sociological data, factory reports from other countries

  • Justified Oregon's distinction between men and women in working hours

  • Called Legal Realism — using real-world data and social science to justify legislative distinctions

• Holding (9-0):

  • Liberty protected by the DPC was not a bar to Oregon's compelling interest in protecting women's health

  • Women's physical structure and the performance of maternal functions justified special legislation

  • Court distinguished Lochner — different class, different health justifications, different state interest

Adkins v. Children's Hospital (1923):

• Congress passed an act creating a Minimum Wage Board for the District of Columbia for women and children (5th Amendment applies — DC is federal)

• Opponents argued it interfered with the private wage bargain between employer and employee

• Holding (5-3): Struck down the minimum wage law

  • Direct interference with wage bargaining — went to the heart of freedom of contract

  • After the 19th Amendment, women's legal status had fundamentally changed — the justification for special legislative protection based on dependency was gone

  • Hours affect health directly; wages are merely a medium of exchange — wages are different from hours (distinction from Muller)

• Dissent (Taft with Holmes):

  • Low wages could threaten women's health and public welfare

  • The majority's distinction between wages and hours was artificial

• Aftermath:

  • Didn't directly overturn Muller — distinguished on wages vs. hours

  • Presumption in favor of legislation and no natural right overlay should apply

Meyer v. Nebraska (1923):

• Nebraska's Siman Act prohibited teaching foreign languages (including German) to children under the 8th grade — applied to all schools (public and private)

• Post-WWI anti-German sentiment was strong; many states passed Americanization laws

• A German language teacher challenged under the 14th Amendment DPC

• Holding (7-2): Unconstitutional

  • Liberty encompasses far more than freedom from physical restraint — it includes:

    • Right to contract

    • Right to engage in common occupations of life

    • Rights of parents to control their children's education

    • Right to acquire useful knowledge

    • Right to marry, raise children, worship God

    • Generally enjoy privileges essential to the orderly pursuit of happiness by free men

  • Nebraska had no legitimate reason sufficient to override these liberties

• Dissent (Holmes and Sutherland): The Constitution doesn't protect the right to teach foreign languages; courts should defer to the legislature

• Significance: Massively expanded the concept of liberty beyond the economic; strengthened parental rights and educational freedom

Pierce v. Society of Sisters (1925):

• Oregon's Compulsory Education Act (1922) — sponsored by the KKK — required all children to attend public schools; effectively closed Catholic and private schools

• Society of Sisters sued, arguing the law violated constitutional rights of parents and schools; the school was considered an aggrieved "person" under Dartmouth College/Santa Clara principles

• Holding (unanimous): Unconstitutional

  • States cannot force parents to send children exclusively to public schools

  • "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children"

  • Child is not a mere creature of the state — parents retain primary authority over their child's education

  • State may regulate education (curriculum, hours, teacher qualifications) but cannot take over the education of children entirely

  • Liberty (14th Amendment) interpreted broadly to include family and educational autonomy

Social Darwinism & Eugenics

Social Darwinism — The Intellectual Background:

• Darwin's On the Origin of Species (1859) → Herbert Spencer coined "survival of the fittest" → pseudo-scientific application to human society

• Social Determinism (William Graham Sumner): The fittest should be rewarded and left alone; poverty is the fault of the poor; government efforts to support the disadvantaged were doomed to failure and immoral

• Justified Laissez-Faire capitalism and a narrow interpretation of the 14th Amendment

• Applied to eugenics movement: Certain psychological/cognitive traits were deemed inherited and harmful; those carrying them should be prevented from reproducing

• The Passing of the Great Race: Argued for termination of immigration from southern/eastern Europe; claimed 10% of Americans produced "unworthy" offspring

• Progressives (not just conservatives) were proponents of this movement

• Congress (1924) passed one of the strictest immigration laws based on eugenicist thinking

• American Eugenics Society (1926) distributed sterilization pamphlets

• German Nazi sterilization program was directly modeled on American eugenics laws

Buck v. Bell (1927):

• Background: Carrie Buck, 18 years old, was deemed "feeble-minded" and institutionalized; Virginia law allowed sterilization of those with hereditary mental conditions; Buck's mother was also institutionalized; Buck's daughter was later also deemed mentally deficient — "three generations of imbeciles"

• Buck's lawyers argued the state cannot deny a person full bodily autonomy; state argued public welfare

• Issues: Did forced sterilization violate the 14th Amendment's EPC or DPC?

• Holding (8-1) — Holmes:

  • The statute does not violate the Constitution — not a matter of whether sterilization was permissible in principle, but whether procedural guarantees under the DPC were satisfied

  • Every step of the case was taken into scrupulous consideration → she had her process

  • The state had a legitimate, rational basis for public welfare

  • "Three generations of imbeciles is enough"

• Aftermath:

  • Cited by Nazi Germany to justify forced sterilization programs

  • Buck v. Bell was never formally overruled, though Skinner undermined it

Skinner v. Oklahoma (1942):

• Oklahoma's Habitual Criminal Sterilization Act permitted sterilization of repeat felons (but not white-collar crimes like embezzlement)

• Skinner challenged under the 14th Amendment EPC and DPC

• Holding:

  • Violated the EPC — by excluding white-collar crimes, the act was inherently unequal in execution; no rational basis for the distinction (a person who stole chickens could be sterilized; an embezzler could not)

  • Applied Strict Scrutiny — procreation is a fundamental right (right to bear children, bodily autonomy) → compelling state interest required, pursued in the least restrictive way; the act failed even rational basis

  • Cautioned against sterilization due to its irreversibility

• Stone's Concurrence: Disagreed with reliance on EPC; cited DPC as more relevant; would have required proof that criminal behavior was genetically inheritable (citing Buck v. Bell as a valid rational basis example)

• Significance: First articulation of fundamental rights under the 14th Amendment warranting strict scrutiny review; implicitly undermined Buck without overruling it

PART 9: FREEDOM OF SPEECH

The Framework — What Speech Gets Protection

Core Principle:

• "Congress shall make no law abridging the freedom of speech" — initially thought quite narrow

• Blackstone's 18th-century view: Freedom of speech means no prior restraints on publication; does not prevent criminal punishment after publication

• The Sedition Act of 1798 criminalized criticism of government — expired in 1801 without judicial challenge; tested interposition doctrine instead

• Barron v. Baltimore: First Amendment originally did not apply to the states

• Gitlow v. New York: Court decided that free speech and free press did apply to the states via the 14th Amendment

Types of Speech and Protection Levels:

• Public/political discourse: Highest protection; all issues relevant to self-governance

• Three types of laws that almost always fail:

  1. Viewpoint restrictions

  2. Censorship/chilling effect regulations

  3. Compelled speech (mandating a particular opinion be expressed)

• Commercial speech: Cannot be banned entirely; disclosure and accuracy requirements can be imposed

• Government may criminalize: Libel, fighting words, threats of violence, obscenity, and speech creating a clear and present danger of substantive harm

The WWI-Era Cases — Developing the Clear and Present Danger Test

Schenck v. U.S. (1919):

• Schenck and members of the Socialist Party distributed pamphlets encouraging resistance to the draft during WWI; convicted under the Espionage Act

• Argued that communicating an opinion was different from inciting illegal action

• Holmes' Holding:

  • Put to rest the view that only prior restraints are the concern of the First Amendment

  • Freedom of speech is not absolute — depends entirely on context

  • Introduced the Clear and Present Danger Test: The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the power to prevent

  • "The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater"

  • Does not define "clear," "present," or "danger" precisely

  • At least in times of war, speech can lose its protection even if it would normally be protected

• Rejected: The old bad tendency test — that speech could be suppressed merely because it might at some point lead to harm

Frohwerk v. U.S. (1919):

• Newspaper articles critical of the war; Holmes upheld conviction using CPD

• Articulated a very low standard: "It is impossible to say that it might not be found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame"

• CPD was being applied very broadly in wartime

Debs v. U.S. (1919):

• Eugene Debs (prominent socialist leader) gave a speech praising conscientious objectors to the draft

• Holmes upheld conviction — even indirect encouragement of illegal action could meet CPD in wartime

Abrams v. U.S. (1919):

• Background: Red Scare; defendants threw leaflets from a building condemning Wilson's intervention in Russia and calling for a general strike; indicted under the Sedition Act of 1918: criminalized any "disloyal, profane, scurrilous, or abusive" writing about the U.S. government; over 20,000 arrests total

• Holding (7-2): Leaflets created a clear and present danger amounting to an attempt to defeat the government's war plans; words separate from actions can be punished under CPD in wartime

• Holmes' Famous Dissent (joined by Brandeis) — major evolution of CPD test:

  • CPD requires immediate, imminent threat and actual intention to bring about immediate, imminent evil

  • Mere expression of opinion cannot be punished; only direct incitement of direct acts that are immediately dangerous qualifies

  • "Free trade in ideas" — the best test of truth is the power of the idea to get itself accepted in the competition of the marketplace of thought

  • Present tense danger; imminence is required; speech itself cannot be punished for its content alone

Aftermath:

• Holmes later argued in U.S. v. Schwimmer that freedom of thought was "the principle of the Constitution that most imperatively calls for attachment"

• Public reaction: adulation from elite/left; widespread disagreement from the public who believed wartime expanded presidential powers (similar to reaction to Merryman)

Later Speech Cases

Whitney v. California (1927):

• Charlotte Whitney was convicted under California's Criminal Syndicalism Act for membership in the Communist Labor Party

• The act made it criminal to organize or join any group advocating the use of unlawful means to accomplish political change

• Holding: Upheld the conviction; the CPD test was applied broadly

• Brandeis' Landmark Concurrence (joined by Holmes):

  • Only immediate lawless action — not abstract advocacy — can be suppressed

  • Danger must be imminent: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence"

  • Distinguished between advocacy of abstract doctrine (protected) and incitement to immediate action (unprotected)

  • This concurrence later became the majority standard in Brandenburg v. Ohio (1969)

• Aftermath: Whitney's sentence was commuted by the Governor of California in response to the concurrence's moral force

Near v. Minnesota (1931):

• Minnesota's gag law permitted a judge (without a jury) to permanently enjoin any "malicious, scandalous, and defamatory" publication — used against a Minneapolis newspaper with overtly anti-Semitic, anti-Black, and anti-Catholic content that also alleged police corruption

• Minnesota argued freedom of press was never meant to protect defamation or scandal; the gag law was a valid exercise of police power

• Holding (5-4): Overturned the gag law

  • First time SCOTUS unambiguously concluded that freedom of the press is a fundamental right incorporated against the states through the 14th Amendment

  • Prior restraint is the most serious form of infringement on press freedom — almost always unconstitutional

  • "The chief purpose of the guaranty [of free press] was to prevent previous restraints upon publication"

  • Even a defamatory or scandalous press is protected — punishment comes after publication, not before

• Dissent:

  • First Amendment doesn't apply to states at all (minority position by 1931)

  • Freedom of press was never meant to license scandalous or libelous behavior; police power can address blackmail and scandal

• Permitted Exceptions to the prior restraint rule (noted in dicta):

  1. Wartime publication of troop movements

  2. Obscenity

  3. Incitement to violence

  4. Publications violating individual privacy

• Left open: Whether prosecution or civil suits after publication would be permissible

Flag Salute Cases — Compelled Speech & Religious Freedom

Minersville School District v. Gobitis (1940):

• Background: Cold War-adjacent atmosphere; Germans had just defeated France; widespread anxiety about national unity; 20 states required public flag salutes; Jehovah's Witnesses were expelled in 16 states

• The Gobitis family's children refused to salute the flag or recite the Pledge of Allegiance — citing the Book of Exodus's prohibition on bowing to graven images

• Pennsylvania required all children to attend school, and the Gobitis family couldn't afford private school

• Holding (8-1) — Frankfurter:

  • National unity is a legitimate government interest; the flag is a legitimate symbol of that unity

  • Freedom to follow one's conscience has limits when it conflicts with society's necessities

  • "The flag may be a symbol, but we live by symbols" — Frankfurter was a proponent of judicial restraint

  • Mere possession of religious convictions does not relieve a citizen of general civic obligations

  • Court should defer to democratic processes and the legislature on questions of national unity

• Stone's Dissent:

  • Democratic processes should be preserved at all cost — but judicial restraint has limits

  • The judiciary's core role is to protect fundamental rights against democratic excesses

  • Government cannot compel public affirmations that violate religious conscience

• Aftermath: Widespread violence against Jehovah's Witnesses; many more schools mandated flag salutes; major pushback from editorials and law reviews; several justices publicly had second thoughts

West Virginia Board of Education v. Barnette (1943):

• West Virginia extended the mandatory flag salute to all schools and made noncompliance a criminal offense; Jehovah's Witnesses were again targeted

• Holding: Reversed Gobitis

  • There are rights not subject to a vote — that is precisely why they are constitutional rights

  • Government cannot compel a public affirmation of any belief — whether political, religious, or ideological

  • "No official can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein"

  • If there is any fixed star in our constitutional constellation, it is that no official can tell any citizen what to think or believe, or force them to express any belief

  • Freedom of speech includes the right not to speak (negative liberty)

• Frankfurter's Impassioned Dissent:

  • Constitutional protection of religious freedom doesn't create special civil privileges — it means religious equality, not civil exemptions

  • One can practice religion and still be required to obey generally applicable laws

  • The duty to defer to legislatures remains; reasonable justification for the flag salute can easily be offered

  • Extremely defensive of his Gobitis opinion; argued judicial restraint demanded deference

PART 10: THE NEW DEAL & COMMERCE CLAUSE (MODERN ERA)

New Deal Context

The Political Background:

• 1929–1933: Great Depression; massive unemployment; economic collapse

• Roosevelt's New Deal (1933–1937): Federal programs to stimulate recovery and regulate the economy

• The Court at the time: 3 liberals, 2 moderates, and 4 conservatives (the "Four Horsemen") — deeply hostile to economic regulation

• Application of substantive due process and commerce clause against state and federal legislation

• Key tension: How does a court respond when it doesn't reflect the popular democratic mandate?

Pre-Switch Cases — The Court Blocking the New Deal

Home Building & Loan Assoc. v. Blaisdell (1934):

• Background: Minnesota Mortgage Moratorium — over half the state's farms were in foreclosure; Minnesota passed a law allowing farmers to delay mortgage payments for up to 2 years to prevent mass foreclosures

• Issue: Did the Mortgage Moratorium law violate the Contracts Clause?

• Holding (5-4) — Hughes:

  • Constitutional — upheld the moratorium

  • A state of emergency does not create new powers, but it can justify the exercise of powers that are already valid under the Constitution

  • The Contracts Clause must be read against its historical context — it was written during economic distress; its purpose was to prevent repudiation of public debts, not to prevent all emergency relief

  • Enforcement of a contract is not the same as impairing it — extending the time for performance under narrow conditions is different from nullifying the obligation

  • State police power to protect the general welfare can justify temporary emergency measures even in the contracts context

  • Key: The moratorium was limited in time, conditioned on continued interest payments, and subject to court oversight

Gold Clause Cases (1935):

• Congress abrogated gold clauses in private contracts (requirements that debts be repaid in gold) as part of taking the U.S. off the gold standard

• Holding: Congress had the power to abrogate gold clauses under its monetary and currency powers; a creditor could not demand gold repayment

• Showed the court was willing to allow some New Deal financial measures while still blocking others

Schechter Poultry Corp. v. U.S. (1935) ⭐ ("Sick Chicken Case") — Black Monday

Background:

• Roosevelt's National Industrial Recovery Act (NIRA, 1933): Authorized the president to create "codes of fair competition" for industries — set wages, hours, prices, and labor standards; codes were drafted largely by industry insiders with little legal review

• Schechter Brothers bought chickens in New Jersey and sold them locally in New York; convicted for violating the Live Poultry Code (unfair trade practices and labor standards)

Holding (9-0):

• Commerce Clause: Schechter was engaged in intrastate commerce with only an indirect effect on interstate commerce; the chicken had already come to rest in New York when purchased — it was no longer "in commerce"

  • Commerce clause cannot be construed to reach all enterprises with indirect effects on interstate commerce; that would give the federal government a general police power reserved to states

• Non-Delegation Doctrine: Congress cannot delegate legislative power to the President without providing an intelligible principle — the standard the agency must follow

  • NIRA gave the president effectively unlimited power to write industry codes without adequate guidelines → unconstitutional delegation

• Cardozo's Concurrence (joined by Stone): Even accepting the broadest Commerce Clause reading, the chicken business in New York was simply too local and too attenuated to qualify

Aftermath:

• Roosevelt was furious but conceded some correction of the code-making process was needed

• NRA was about to expire anyway

• Intelligible principle test (still good law today): Has Congress set out:

  1. A general policy the agency must pursue

  2. The boundaries of delegated authority?

Morehead v. Tipaldo (1936):

• New York minimum wage law for women and children in mining

• Holding: Violated freedom of contract; Adkins controlled the outcome; no distinction between the federal DC statute and New York's state law

• Dissent (Hughes + liberal justices): Exploitative wage inequality; exceptional circumstances; states should have power to protect workers

• Aftermath: 97% of newspapers reporting the case criticized the decision; public outrage was enormous — the court had invalidated a minimum wage for women during the worst economic crisis in American history

Court-Packing & The Switch

Context:

• 1936 Election: Roosevelt won 61% of the popular vote; Democrats won 75% of the Senate and an even larger House majority

• FDR had gotten to nominate zero justices in his first term despite multiple vacancies going unfilled (or filled by Republicans)

• Court-Packing Plan (1937): Roosevelt proposed adding one justice for each justice over age 70 who hadn't retired (framed as helping with workload); would have immediately added 6 justices → total of 15

• Enormous backlash: 97% of newspapers opposed; majority of the public opposed even a popular president attacking the court; seen as dangerous overreach threatening judicial independence

"The Switch in Time That Saved Nine":

• Justice Owen Roberts switched his vote in West Coast Hotel v. Parrish, effectively ending the Lochner era

• Roberts later claimed his switch had nothing to do with court-packing — the internal conference vote predated Roosevelt's announcement (though it followed his landslide election)

• Key: In Tipaldo, New York had not asked the court to overrule Adkins — merely distinguished it; Roberts said he could now reconsider Adkins when directly asked

Post-Switch Cases — New Deal Upheld

West Coast Hotel v. Parrish (1937):

• Washington State minimum wage law for women; directly asked the court to overrule Adkins

• Holding: Overruled Adkins; upheld the minimum wage law

  • Permissible exercise of state police power to protect workers

  • There is no absolute freedom of contract — the Constitution does not recognize it; freedom of contract is the exception when regulation is unreasonable, not the baseline rule

  • Stare decisis did not require adherence to an egregiously wrong precedent that had caused real harm

  • Legislature has broad authority to regulate wages in the public interest

NLRB v. Jones & Laughlin Steel Corp. (1937):

• Wagner Act (1935) protected workers' right to unionize; Jones & Laughlin Steel fired workers for union organizing; NLRB ordered reinstatement

• The company argued EC Knight: manufacturing (steel production) was intrastate, not interstate commerce

• Holding (5-4) — Hughes:

  • Labor relations in a massive interstate steel corporation directly affect interstate commerce

  • Court distinguished (without formally overturning) Schechter: Jones & Laughlin was a truly national corporation, not a local chicken dealer

  • Abandoned the rigid direct/indirect distinction from EC Knight in practice — a close and substantial relation to interstate commerce is sufficient

  • Left some ambiguity — didn't explicitly overrule EC Knight

Steward Machine Co. v. Davis (1937):

• Social Security Act's federal unemployment tax scheme — employers paid a federal tax; states could create their own unemployment programs and employers would get credit against the federal tax; revenues went to the general federal treasury

• Argued the scheme coerced states and exceeded Congress's taxing authority

• Holding: Constitutional

  • General Welfare Clause: Congress's taxing and spending power for the general welfare is broad; this served the general welfare

  • Distinguished from U.S. v. Butler (which struck down AAA agricultural payments): In Butler, taxes were collected from one group and paid directly to another — that was a regulatory scheme, not a general welfare expenditure; here, revenues went to the general treasury and served the general public

  • The cooperative federal-state structure didn't coerce states — it offered an incentive

• Dissent (McReynolds): Federal government was using taxing power to coerce states into compliance

Wickard v. Filburn (1942) ⭐ — Commerce Clause Reaches Its Peak

Background:

• Roscoe Filburn was a small Ohio farmer; under the federal Agricultural Adjustment Act, he was given a wheat allotment; he exceeded it by growing wheat for personal use on his own farm — fed it to his livestock, used it for flour, and never sold a single bushel

• Argued the federal quota could not constitutionally reach consumption that never entered any stream of commerce

Holding (9-0):

• Even wheat consumed entirely on a local farm, never sold or transported, could be regulated under the Commerce Clause

• Filburn's individual contribution was trivial, but in the 1940s, over 20% of all wheat production never left the farm where it was grown

• If all farmers grew excess wheat for personal consumption, the aggregate effect on the national wheat market would be substantial — depressing prices and undermining federal agricultural programs

• "Aggregation Principle": Even purely local activity, when aggregated across many actors, can have a substantial effect on interstate commerce and fall within the Commerce Clause

Aftermath:

• Seemed excessive to many commentators — Congress could regulate virtually any economic activity

• Congress had authority to regulate local activity and preempt any contrary state law under a rational basis standard that aggregate local activity could substantially affect interstate commerce

• Stood as essentially unchallenged until Lopez (1995)

The Modern Commerce Clause Trilogy — Rehnquist Court Adds Limits

U.S. v. Lopez (1995):

• Background: High school senior in Texas carried a handgun into school; charged under the Gun-Free School Zones Act — a federal criminal statute with no explicit connection to interstate commerce

• Government's reasoning: Guns → violent crime → costs (insurance, reduced travel) → worse education → weaker economy → effects on interstate commerce

• Holding (5-4) — Rehnquist:

  • The Gun-Free School Zones Act was unconstitutional — first major Commerce Clause invalidation in 60 years

  • Gun possession near schools is not an economic activity with a substantial effect on interstate commerce

  • Government's reasoning had no limiting principle — would convert congressional Commerce Clause authority into a general police power reserved to states under the 10th Amendment

  • Three categories Congress may regulate under the Commerce Clause:

    1. The channels of interstate commerce (the pathways — roads, railways, airways, waterways)

    2. The instrumentalities of commerce (the means — trucks, planes, ships, people and things in commerce)

    3. Activities that substantially affect interstate commerce (economic activities with a real, substantial nexus)

  • Only category 3 was relevant; gun possession near schools didn't qualify

• Briar's Dissent:

  • Majority abandoned decades of precedent; economic effects of education are very real

  • Congress had made findings about the connection

  • Aggregation principle should apply — even if one gun near a school has trivial effect, the cumulative effect of guns near schools nationally on the educational system is substantial

  • Similar to Holmes' Lochner dissent in structure (judicial restraint)

U.S. v. Morrison (2000):

• Virginia Tech student was sexually assaulted; sued the alleged assailants under the Violence Against Women Act's civil remedy provision; Congress had compiled extensive findings on the economic effects of gender violence

• Holding (5-4):

  • Struck down the VAWA civil remedy — unconstitutional under both Commerce Clause and §5 of the 14th Amendment

  • Commerce Clause: Gender-motivated violence is non-economic activity; even massive congressional findings cannot convert non-economic activity into commerce; this is reserved to states' police power

  • 14th Amendment §5: VAWA fell outside Congress's remedial authority — the 14th Amendment limits state action, not private action; since the assailants were private individuals, not state officials, Congress couldn't use §5 to reach them

• Aftermath: Congress increased funding and assistance for gender violence but left enforcement to the states (2022 reauthorization)

Gonzalez v. Raich (2005):

• California residents grew marijuana at home under California's Compassionate Use Act for serious medical conditions; DEA raided and destroyed the plants under the federal Controlled Substances Act

• Argued the CSA couldn't reach home-grown marijuana never entering any commerce

• Holding (6-3):

  • Congress could regulate non-commercial, purely local marijuana cultivation as part of its regulation of the broader interstate drug market

  • Filburn analogy: Even if Raich's home-grown marijuana was never sold, it substituted for market purchases — aggregate local cultivation undermines the entire federal drug regulatory scheme

  • The regulated activity (drug market) is quintessentially economic unlike the gun in Lopez or the violence in Morrison

  • Congress had a rational basis for concluding that local cultivation substantially affected the interstate drug market

• Dissent (O'Connor, joined by Rehnquist):

  • The limiting principles of Lopez and Morrison become meaningless under this analysis

  • Medical marijuana grown at home is genuinely different from commercially produced drugs

  • California's law represents exactly the kind of state-level policy experimentation federalism is designed to permit

• Thomas' Dissent:

  • Majority's holding is inconsistent with the original meaning of "commerce" in the Commerce Clause

  • "No one would have called growing a plant 'commerce'" (echoes EC Knight reasoning)

  • Reiterated his Lopez concurrence — if the aggregation principle has no limits, the Commerce Clause is limitless

The Modern Rule Synthesized:

• Congress may regulate: channels of commerce, instrumentalities of commerce, and economic activities with substantial effects on interstate commerce (even if aggregated from local activity)

• Congress may not, under the guise of regulating commerce, regulate non-economic activity that falls within states' police power, even with congressional findings of economic effects

• The aggregation principle applies to economic activity; courts are skeptical of applying it to clearly non-economic or non-commercial conduct

PART 11: WORLD WAR II — WAR POWERS & CIVIL LIBERTIES

Japanese Internment

Background:

• December 7, 1941: Pearl Harbor; Congress declared war

• Widespread fears of espionage and sabotage on the West Coast; pre-existing anti-Asian racism; decrypted Japanese diplomatic cables suggested potential contact with Japanese Americans

• February 1942: Roosevelt's EO 9066 designated military areas and authorized exclusion of persons from them → targeted ~112,000–127,000 Japanese Americans (⅔ of whom were U.S. citizens)

• Congress endorsed EO with only one dissenter; country and press reacted with broad support

• 40,000 children were interned; 5,000 refused to swear allegiance to the U.S.; 3,000 requested repatriation to Japan

Hirabayashi v. U.S. (1943):

• Gordon Hirabayashi was an American citizen of Japanese descent convicted of failing to report to an assembly station and violating a curfew imposed on Japanese Americans on the West Coast

• (This was a curfew case — not a relocation/internment case)

• Holding (9-0) — Stone:

  • Congress and the executive have broad war powers — the Constitution gave them full authority over all conditions of warfare

  • Commander in Chief and Congress together could impose a curfew on Japanese Americans as a wartime security measure

  • Not analyzed as a bill of attainder — it fell within Congress's war powers, not individual punishment

  • Court deferred to military and congressional judgment with a very soft standard: "Cannot reject as unfounded" the military's judgment that there were disloyal members of the Japanese American population

  • Justification offered: Japanese immigrants had been excluded from citizenship; under Japanese law, their children could hold Japanese citizenship; many children were sent to Japanese-language schools (believed to be sources of nationalist propaganda)

  • The wartime context (West Coast, active theater threat, military exigency) distinguished this from peacetime racial discrimination

• Murphy's Concurrence: Argued plainly that this was racial discrimination; loyalty is a matter of mind and heart, not race; deferred only because of the critical military situation

• Aftermath: Curfew had also applied to Italian and German aliens (not citizens) — but the Japanese curfew applied to citizens solely based on ancestry

Korematsu v. U.S. (1944) ⭐

Background:

• Fred Korematsu was an American citizen convicted for refusing to leave a designated military area (his home city, San Francisco); he had tried to pass as non-Japanese and had minor surgery to alter his appearance

• Government relied on General DeWitt's Final Report — which contained fabricated claims about Japanese American espionage and disloyalty; the government had actually suppressed a contrary FBI report

Holding (6-3) — Black:

• Upheld the conviction; deferred to military necessity

• Applied strict scrutiny to racial classifications — court acknowledged race was involved

  • Concluded Korematsu's exclusion wasn't because of his race per se, but because of the military emergency involving Japan — circumstances allowed the racial classification to survive strict scrutiny

• Referred back to Hirabayashi; accepted DeWitt's report at face value despite fabrications (the court felt it had no choice — accepting contrary evidence would mean the court was second-guessing military intelligence in wartime)

Frankfurter's Concurrence:

• This is Congress's and the military's business entirely — ultimate judicial restraint; courts should not second-guess military decisions in wartime

Dissents:

• Murphy: Exclusion goes beyond anything Hirabayashi authorized; there was no imminent, immediate, impending danger — the evacuation came months after Pearl Harbor; this is nothing more than "the legalization of racism"

• Jackson: Courts should not be in the business of validating racial discrimination; even if the military order was militarily justified, the Constitution forbids courts from endorsing such principles; warned that a constitutional decision endorsing racial classification would be far more dangerous than the military order itself — the order would expire, but the precedent would remain

Aftermath:

• Same day as Korematsu, the court decided Ex Parte Endo: 9-0, the War Relocation Authority had no power to detain a concededly loyal citizen — Mitsuye Endo was entitled to an unconditional release

• The court in Endo avoided the constitutional question entirely by ruling on the narrow statutory ground

• Korematsu was explicitly overruled in Trump v. Hawaii (2018)

• The government's own lawyers later admitted that the suppression of the contrary FBI report was a fundamental breach of candor to the court (Fred Korematsu's conviction was vacated in 1983)

The Cold War — Dennis v. U.S. (1951)

Background:

• Smith Act (1940): Criminalized advocacy, teaching, or organizing for the violent overthrow of any U.S. government, or conspiracy to do so; also criminalized registering foreign nationals connected to such organizations

• Dennis and 10 other leaders of the American Communist Party were convicted for conspiring to form the American Communist Party and teach Marxist-Leninist doctrine

• No accusation of any overt act toward violent overthrow — purely conspiracy to teach from 4 texts (Marx, Engels, Lenin, Stalin)

• Communist leaders deliberately disrupted the trial and tried to use it as a political platform

Holding (6-2) — Vinson:

• Affirmed conviction; Smith Act itself was constitutional as applied

• Modified the Clear and Present Danger Test: "In each case [courts] must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger"

• Neither immediacy nor probability of the threatened harm was required — the gravity of Communist overthrow was so severe that even a remote probability could justify suppression

• Effectively gutted the CPD test as Holmes and Brandeis had articulated it

Concurrences:

• Frankfurter: Emphasized judicial restraint; the balancing of interests between free speech and national security is a legislative judgment — courts should defer; Communist Party's history of subversion justifies the Smith Act

• Jackson: Communist Party is a disciplined, international conspiracy — different from ordinary political advocacy; existing CPD jurisprudence is inadequate for this unprecedented threat

• Douglas' Dissent (a la Holmes/Brandeis):

  • There must be some immediate danger to society to justify suppression; teaching abstract doctrine, even Communist doctrine, cannot be criminalized

  • Communism as a force in America was weak — no realistic threat of imminent revolution; "the invisible army" was grossly overestimated

  • The First Amendment bars the prosecution of mere belief and teaching without overt acts

Aftermath:

• Red Monday (1957): SCOTUS issued 4 decisions limiting the Smith Act — required actual incitement of action, not just advocacy of doctrine; limited the reach of Dennis significantly

• Congress sought to strip judicial authority over national security cases in response (failed by a thin margin)

PART 12: PRESIDENTIAL POWER — THE GREAT CASES

Removal Power

Myers v. U.S. (1926):

• Background: Myers was a postmaster appointed with Senate confirmation; Wilson tried to remove him before his term expired without Senate consent; Congress had passed a law requiring Senate approval for removal of certain postmasters

• Holding (6-3) — Taft (writing as Chief Justice, having been President):

  • President has full discretion to evaluate and remove all executive subordinates — including those appointed with Senate confirmation

  • Art. II must be interpreted to support separation of powers: Senate's advice and consent in appointing an officer doesn't give it a role in removing that officer

  • The president must have the unqualified ability to remove executive officers to maintain accountability and control over the executive branch

• Dissent (Brandeis and Holmes):

  • Congress has authority to regulate the structure of the executive branch, including imposing conditions on removal

  • History supports legislative involvement in removal

• Dissent (McReynolds): Even broader concerns about presidential overreach

Humphrey's Executor v. U.S. (1935):

• Background: Humphrey was a conservative FTC commissioner; the FTC Act allowed removal only for "inefficiency, neglect of duty, or malfeasance in office"; FDR demanded his resignation on ideological/policy grounds — misalignment with New Deal philosophy; Humphrey refused; FDR fired him; Humphrey died before the case was decided; his estate sued for back pay

• Holding (9-0) — Sutherland (one of the Four Horsemen):

  • FDR improperly terminated Humphrey — could only be removed for the statutory causes specified

  • The FTC was designed to be an independent body exercising quasi-judicial and quasi-legislative functions — not purely executive in nature

  • A body exercising such functions must be free from presidential control over removal; the president cannot remove commissioners of independent agencies except for cause

  • Distinguished Myers: Myers was a purely executive officer (postmaster); Humphrey's FTC exercised functions beyond the executive sphere

• Significance: Created the "independent agency" doctrine — agencies with quasi-judicial or quasi-legislative functions have protection from at-will removal

• Still good law today; applied in ongoing cases (Trump v. Wilcox, Trump v. Cook)

Foreign Affairs & Inherent Executive Power

U.S. v. Curtiss-Wright Export Corp. (1936):

• Background: Congress delegated to the President the power to embargo arms sales to Bolivia during a conflict; Curtiss-Wright violated the embargo; challenged the delegation as unconstitutional under Schechter (no intelligible principle)

• Holding — Sutherland:

  • The Schechter non-delegation principle applies to domestic affairs; foreign affairs are different

  • The federal government's power in foreign affairs is inherent and plenary — independent of the Constitution's enumerated grants

  • Springing Sovereignty Theory: When the colonies declared independence, sovereignty in foreign affairs transferred directly from the British Crown to the colonies as a unit (not to individual states); the states never held foreign affairs powers, so those powers never needed to be enumerated in the Constitution

  • The President is the "sole organ" of the nation in foreign affairs — has broad inherent authority in international relations

  • Even without specific congressional authorization, the president has wide latitude in foreign policy

• Significance:

  • Established the unitary executive in foreign affairs

  • Justified subsequent claims of executive privilege in national security matters

  • Used to support deployment of troops abroad without formal declaration of war

  • Authorized the Lend-Lease Act (transferring war material to any nation whose defense the president deemed vital)

  • President has plenary authority to enter into executive agreements with foreign nations without Senate approval as treaties

The Steel Seizure Case

Youngstown Sheet & Tube Co. v. Sawyer (1952) ⭐ — Landmark Separation of Powers Case

Background:

• Korean War (1950): No formal declaration of war; Congress never declared war, but authorized military force (called a "UN police action")

• Steel was essential for the war effort; the government relied heavily on defense contractors

• The United Steelworkers threatened to strike; Truman created a Wage Stabilization Board, but neither side would compromise

• Truman had promised labor unions during his 1948 campaign never to use Taft-Hartley to break strikes

• Truman also had a personal relationship with Chief Justice Vinson — Vinson improperly assured Truman the court would support him (Truman had appointed 4 of the 9 justices)

• EO 10340 (April 8, 1952): Truman ordered Secretary of Commerce Sawyer to seize and operate the steel mills — "a work stoppage would immediately jeopardize our national defense"

• Truman's legal arguments: Commander in Chief power; inherent executive power to protect national security; Curtiss-Wright; congressional authorization through military appropriations that assumed steel would be available

Holding (6-3) — Black:

• The seizure was unconstitutional; President cannot take possession of private property without an act of Congress

• Presidential powers must stem either from Congress or the Constitution itself — even in wartime

• Taft-Hartley Act (labor disputes) had been specifically debated; Congress had expressly rejected including seizure of industries as a remedy; Truman couldn't use an alternative method Congress had declined to authorize

• Korea was an "armed conflict" — Truman never called it a war; no formal war declaration had been issued

Vinson's Dissent (joined by Reed and Minton):

• Extraordinary times require extraordinary actions; the president has broad power to preserve national security

• Cited historical precedents of unilateral presidential leadership: Whiskey Rebellion, Emancipation Proclamation, seizures in WWII

• President can do anything the Constitution doesn't explicitly prohibit; in emergencies, executive power must be broadly construed

Jackson's Famous Three-Zone Concurrence ⭐ (the framework courts actually use):

• Zone 1 — Maximum Presidential Authority: President acts with express or implied authorization from Congress

  • The combined power of Congress + President = maximum governmental authority

  • Courts should sustain such actions unless they violate the Constitution itself

• Zone 2 — Zone of Twilight: Congress has neither authorized nor prohibited the presidential action

  • President acts on inherent executive authority alone; the scope is uncertain

  • Analogous to the dormant commerce clause — Congress's silence can be interpreted as acquiescence or disapproval depending on circumstances

  • Courts must engage in more careful constitutional analysis

• Zone 3 — Minimum Presidential Authority: President takes action incompatible with the express or implied will of Congress

  • President can rely only on his own constitutional authority minus Congress's constitutional authority over the same matter

  • The combined opposition of Congress + Constitution makes presidential action hardest to sustain here

  • President is at his "lowest ebb" of power

  • The steel seizure fell squarely in Zone 3 — Taft-Hartley had expressly excluded seizure as a remedy; Truman had acted against congressional will

Aftermath:

• 650,000 steel workers walked out; strike lasted 53 days; massive economic loss; Secretary of Defense said no foreign enemy could have crippled the country as much as this labor conflict

• Despite the outcome, Truman had already ordered and continued military actions in Korea without formal congressional declaration — asserting Commander in Chief authority

• The court's decision didn't stop the war effort; it only forced Truman to negotiate rather than seize

• Jackson's three-zone framework has become the definitive test for presidential power disputes ever since

Congressional vs. Presidential War Powers — The Broader Framework

Key distinctions:

• Is there a difference between the power to declare war and the power to make war / engage in hostilities? Yes — the president does have inherent power to engage in limited hostilities

• U.S. has been engaged in armed conflicts over 100 times — only 5 were formal declarations of war: War of 1812, Mexican-American War, Spanish-American War, WWI, WWII

• Vietnam and Iraq at least had congressional authorizations to use force (AUMF) — not declarations of war

• Authorization ≠ Declaration of War: Authorization is generally phrased as "all necessary and appropriate force" against specific named targets; a declaration of war also activates international rules of war and full wartime legal regimes

• War Powers Resolution (1973): Passed to limit presidential power; required 48-hour notice of troop deployment; forces cannot remain deployed more than 60 days without a declaration of war or congressional authorization

• Congress controls the purse even if it can't dictate military tactics: in Vietnam, Congress refused to send $750M to South Vietnam — effectively ending the war

• Congress cannot dictate when and how the president uses military forces even with an authorization or declaration

• President's colorable (softest possible standard) assertion that he is defending Americans against actual or threatened attack is typically sufficient to initially deploy forces

KEY JUSTICES — IDEOLOGY & SIGNIFICANCE

John Marshall (Chief Justice, 1801–1835):

• Architect of federal judicial supremacy and broad federal authority

• Nationalist; strong protection of the Contracts Clause; expansive implied powers for Congress

• Key cases: Marbury, McCulloch, Gibbons, Fletcher, Martin, Cohens, Dartmouth College

Roger Taney (Chief Justice, 1836–1864):

• More states'-rights-oriented than Marshall; narrowed federal power in some areas

• Believed states had significant concurrent authority; but also wrote Dred Scott (catastrophic)

• Key cases: Charles River Bridge, Dred Scott, Prigg (concurrence), Prize Cases (dissent)

Oliver Wendell Holmes ("The Great Dissenter"):

• Giant of judicial restraint — even laws he found deeply wrong should be upheld if democratically enacted

• Developed the Clear and Present Danger Test (Schenck) but then evolved it dramatically in his Abrams dissent

• Key dissents: Lochner ("the 14th Amendment does not enact Herbert Spencer's Social Statics"), Abrams (free trade in ideas), Buck v. Bell (majority — notably one of his worst opinions)

• "The best test of truth is the power of the thought to get itself accepted in the competition of the market"

Louis Brandeis:

• Champion of legal realism — courts should consider real-world social and economic evidence (Brandeis Brief in Muller)

• Co-developed the immediate lawless action standard for speech (Whitney concurrence)

• Argued for judicial restraint alongside Holmes; strong privacy theorist

• Key cases: Muller (brief), Whitney (concurrence), Myers (dissent)

Felix Frankfurter:

• Most extreme proponent of judicial restraint on the Warren-era court

• Deferred to legislatures even when he personally disagreed with the outcome

• Believed the court's institutional legitimacy depended on staying out of political questions

• Key cases: Gobitis (majority), Korematsu (concurrence), Dennis (concurrence), Barnette (dissent)

John Marshall Harlan I ("The Great Dissenter" of the Gilded Age):

• Former slaveholder who became the court's fiercest civil rights voice

• His dissents in Civil Rights Cases and Plessy were vindicated by history

• "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens"

• Also praised for dissent in Lochner-era cases

Robert Jackson:

• Youngstown three-zone concurrence — the definitive presidential power framework

• Also wrote Barnette (no compelled speech); Korematsu dissent (racial precedent danger)

• Nuanced — not ideologically pure; combined restraint on executive power with recognition of wartime needs

William O. Douglas:

• Free speech absolutist; strong individual rights advocate

• Key dissents in Dennis (speech requires imminent danger); concurrences in Skinner (fundamental rights)

Hugo Black:

• Originalist; free speech absolutist (First Amendment means exactly what it says — no law means no law)

• Former KKK member who became a civil rights champion; FDR's first New Deal appointment

• Key cases: Korematsu (majority), Youngstown (majority)

George Sutherland (Four Horsemen):

• Strong opponent of New Deal regulation; wrote Curtiss-Wright (inherent executive foreign affairs power — ironically expanding executive authority while limiting domestic regulatory power)

• Humphrey's Executor (limiting presidential removal power over independent agencies)

RECURRING THEMES & BIG QUESTIONS

1. Judicial Restraint vs. Judicial Activism

• Holmes/Frankfurter/Brandeis (restraint): Legislatures represent democratic will; courts should defer unless there is a clear constitutional violation; judges' personal views are irrelevant

• Field/Peckham/Lochner-era majority (economic activism): Substantive due process requires courts to strike down laws interfering with economic liberty

• The Warren Court would later apply activism to expand individual rights rather than protect economic ones

• Ask: When should unelected judges override democratic majorities?

2. Federal vs. State Power

• The Commerce Clause as the primary tool for expanding federal authority (Gibbons → Wickard → Raich)

• The 10th Amendment, police power, and compact theory as tools for limiting it (EC Knight, Lopez, Morrison)

• Concurrent jurisdiction — states can regulate intrastate commerce and some aspects of interstate commerce absent conflicting federal law

• The dormant Commerce Clause — rejected by Marshall and Taney as an absolute rule; states can't discriminate against or unduly burden interstate commerce

3. Presidential Power vs. Congressional Authority

• Spectrum from Merryman/Milligan (strict constitutional limits even in wartime) to Curtiss-Wright (inherent executive authority in foreign affairs)

• Youngstown (Jackson's three zones) as the synthesis and the governing framework

• The war powers question: does a formal declaration matter? (Only 5 in history)

• Congressional control of the purse as the ultimate check

4. Individual Rights vs. National Security

• Schenck/Abrams → Dennis: Clear and Present Danger Test progressively weakened during wartime

• Hirabayashi/Korematsu: The court's worst hour — racial classifications survived strict scrutiny based on fabricated military justifications

• Milligan: The floor below which rights cannot be suppressed — civilian courts open = no military tribunals

• Merryman: Even in war, only Congress suspends habeas corpus

5. The 14th Amendment's Scope

• Originally read very narrowly: only corrects formal state action (Civil Rights Cases, Cruikshank, Reese)

• Substantive due process expanded it to protect economic liberty (Lochner) and later personal liberty (Meyer, Pierce)

• Equal protection applied to persons, not just citizens (Yick Wo); but "separate but equal" was constitutionally permissible (Plessy) until Brown

• The tension between the narrow and broad readings of the 14th Amendment drives much of constitutional law from 1868 onward

6. Stare Decisis & the Politics of Court Composition

• Knox v. Lee (reversed Hepburn after court-packing): appointments directly overturn precedent

• West Coast Hotel (reversed Adkins/"switch in time"): even without formal packing, election results reshape doctrine

• The court-packing crisis of 1937 demonstrates both the court's independence and its ultimate political accountability