Constiutional Development Part II by Wittgenstein


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									Katherine Newton

                                  Constitutional Law Notes, Part II

Session 14

      McCullough v. Maryland- 1819
          a. National Bank: US had no banks, GB had the finance capitalism. Hamiltonians wanted
              the US to be an empire. Created banks. High-politics case. Government running private
              bank. Whiskey tax turns over to New Yorkers to run bank. (Bank of NY). Gives
              government more power, can borrow money and create national debts. Financed w/
              $10mil in tax revenue. Tax increases to fund war debts.
          b. Politics: Plantation owners. Land is power vs. Dollars are power. Banking subjugates the
          c. Legal Issue:: Did Congress have the authority to establish the bank? Did the Maryland
              law unconstitutionally interfere with congressional powers?
                    i. Enumerated powers, feds can only do what is specifically enumerated. States do
                       the rest. Called federalism- believes in two bosses
                   ii. Historical context: Iroquois Indians, partnership logic. US wanted shared
                       sovereignty w/ GB. When forming the nation, different views over federal
                       relationship. Some in states want no central authority (Anti-federalists). Some
                       want weak central government. NJ plan. Strong federal gov’t (federalists).
                       Current constitution is a compromise b/w weak and strong government, Fed’s
                       have general welfare power, congress has ability to negate state legislation.
                  iii. Laundry List: Found in article 1.8 and 1.9
                           1. Tax and spend for the general welfare, borrow money, bankruptcy,
                               immigration, coin money, weights and measures, post office, roads,
                               patents, declare war, punish certain crimes, military, punish fraud,
                               regulate commerce, No suspension of habeus corpus.
                           2. 10th amendment, powers not delegated are reserved for states/people.
          d. What enumerated power is the government trying to use? Why can’t the government
              charter a bank?
                    i. Necessary and proper clause: Congress shall have the power to make all laws
                       that are necessary and proper (of the laundry list). Very vague. What sense to
                       give N and P? Restrictive or permissive
          e. Opinion: Marshall. “Judging is special”
                    i. From constitution: Is not a code, broad outline of powers.
                   ii. Implied powers: contextual omission No exclusion of incidental
                  iii. Words are not a picture
                     iv. Adopts rule of reading: excessive should be marginalized. Necessary infers
                           degrees of the word. Evidence supporting the rule: Absolutely necessary.
                      v. Why add the word proper? Not same as absolutely necessary.
                     vi. Killer evidence: Look where it is, a power conferring section – not limited.
                           Article 1.8. 1.9 - Next section says what it can’t do.
             f.   Rule of law: Government can do what is necessary and proper reasonable to carry forth
                  those powers.

Session 15

      Power of the Federal
           a. Laundry list
                     i. Two sovereigns sharing power. States and feds.
                    ii. What they share is supposed to be determined by what we can think of as a
                        “partnership agreement.”
                   iii. In section 8, article 1. MEMORIZE THIS LIST
                             1. Tax and spend for general welfare
                             2. Borrow money
                             3. Bankruptcy and immigration
                             4. Coin money
                             5. Post offices
                             6. Patents
                             7. Inferior courts
                             8. Punish certain crimes
                             9. Declare war
                             10. Raise and regulate military
                             11. No titles of nobility
                             12. Punish securities fraud
                             13. Regulate commerce
                             14. Oppress insurrection
                             15. Exclusive governance of capital and forts
                             16. Cant prohibit slave trade until 1808
                             17. Cant suspend habeas corpus
                             18. no bill of attainder/ ex po facto laws
                             19. Power to enforce 13 and 14th amends.
                   iv. For congress to act, legally, within constitution must follow this list
                    v. 10th amend- not exercised by feds, state has the power
           b. Necessary and proper clause
                     i. All laws which are reasonable for carrying the powers, are left to feds.
      Basic Problem
       a. The Constitution does not appear to allow congress to do very much that it would want
           to do in the modern era of governance.
       b. Crimes clause: Congress has power to punish counterfeiting, piracies and felonies on the
           high seas, offenses against international law
                 i. The FBI is the strongest police force in country… HOW?
       c. Can congress try to fix global warming?
                 i. Through tax and spending for general welfare. Tax polluters.
                ii. Regulation through interstate commerce
   Commerce Clause
       a. Most important in constitution.
       b. Congress shall have the power to regulate commerce with foreign nations and amoung
           several states.
                 i. Must be regulating commerce, must be interstate, and THAT must be the
   Gibbons v. Ogden- Marshall strikes again!
       a. Water was equivalent to the highways. Common travel is horseback and carriage. New
           invention: steam boat!
       b. State Monopoly: NY grants monopoly to Fulton and Livingston for the exclusive right to
           ferry in NY waterways. F and L give license to an operator, Aaron Ogden.
       c. Federal law: 1793, Congress passed law to regulate coastal waters. Gibbons is given
           federal license to give steamboat rides.
       d. NY gave Ogden the rights. Feds gave Gibbons the rights.
       e. Is steam boat traffic commerce? Is the granting of federal license “regulating
           commerce”? And if so, has the issue been settled?
       f. Possible views:
                 i. Read commerce narrowly, only refers to items that are for sale.
                ii. Read regulation narrowly, doesn’t mean deciding who gives licenses to give
                    steam boat rides.
       g. Decision: Feds win.
                 i. Ogden originally won an injunction in state courts
                ii. Gibbons appeal goes to SC, which rules in his favor
               iii. Marshall’s logic: Read w/ strict or liberal construction?
                        1. Do neither. We give ordinary meaning.
                        2. Uses syllogistic reasoning.
                                 a. Commerce means intercourse. Broad activity. Ferrying counts
                                 b. Regulation means to govern. Not just terms of trade. Gov’t may
                                 c. Congress governs all economic intercourse
       h. What is interstate commerce?
                 i. Commerce need not be traveling across a state line in order to be included.
                ii. If NY is doing something only for NY… its completely local.
                    iii. If it remains completely local and does not affect anything across the state line,
                         it cannot be regulated by congress.
      Exclusivity Premise: Does not last.
           a. Marshall says so long as something may be regulated by congress, it cannot be
               regulated by the states.

Lecture 16

      10th amendment.
           a. Not in laundry list, then left to the states. Commerce clause is the most important to
                exercise federal authority over the states.
      Commerce Clause
           a. Marshall defined as broad activity- the economy. Conceded that a sphere of commerce
                is intrastate. Doesn’t leave the state, than is local and not able to be regulated.
           b. Gibbons v. Odgen, first case to use commerce clause Regulation meaning to govern,
                commerce clause gives the power to govern the entire activities – banning goods,
                ending slavery, breaking up monopolies.
           c. Marshall also reasons that if the federal government has the power, the states cannot
                therefore also have it. Exclusivity clause.
      Roger Taney
           a. Marshall leaves, Taney is nominated and approved.
           b. Jacksonian, southern, racist. With civil war, he is on the side of the confederate, anti
                banks, anti Hamilton. Jackson’s attorney general. Pro states rights, and wrote Dred
                Scott. Views consistent as attorney general too.
      Mayor of NY v. Miln
           a. NY’ers beginning to think that immigration is out of control. Vessels coming to NY must
                charge fees.
           b. Posting bond is a regulation that the boats must pay for the unemployment of the
                person left in US
           c. Taney: This law is a police regulation, social welfare legislation. Gibbons was a
                commercial dispute, this is not related. There are poor people and we want to make
                sure that the welfare of the people are protected. It is also an inherent power – all cities
                have this power as an incident of police. The federal government has everything given
                by the constitution. States have everything that is not given including the natural right
                to police for health and safety.
           d. How is this case different from Gibbons
                      i. Critical fact: Congress passed laws that enable the regulation of costal
                         waterways. There is no conflicting federal statue.
      Rise of the Dormant Commerce Power
           a. License Cases:
                      i. Before you sell liquor, need a license. Held: States are allowed. Purely local
                         activity and no federal law contradicts. Taney questions the exclusivity clause.
                         Maybe the power to regulate commerce may be shared
             b. Cooley v. Board of Wardens Ships had to use a local pilot when sailing into Philly. Penn
                law required that all ships entering and leaving hire a local pilot, if not- it is a fined
                      i. Cooley refused to hire local pilot or pay the fine. Increases cost of business and
                         makes ferrying less profitable.
                     ii. Rule of law? Commerce Power extends to laws related to pilotage. Navigation is
                         commerce. States laws related to commerce powers can be valid so long as
                         Congress is silent on the matter. Exclusivity only extends to those situations
                         where uniformity is required.
                    iii. There is now something called the dormant commerce clause. States can
                         regulate, even the INTERSTATE economy, in the absence of federal legislation.
                                      a. Selective Exclusivity. When uniformity is not required, the states
                                          get to regulate commerce too
                    iv. Taney removes exclusivity, but federal government has the power to preempt
                         the power to govern anything economic…. So long as it is not purely local within
                         a state.

Session 17

Test One : Retake: Nov 1 Lecture 18% Reading 6% Essay 9%

      Judicial Regimes
           o Each political generation that triumphs in the policy branches leaves (or births) a judicial
                     Federalists: John Marshall. Able to accomplish political objectives in a way that
                        looks like “good law.”
                     Jefferson/Jacksonians: Taney court leaves mark on SC (Like urinating dog)
           o Americans created this system where they run to the courts to get answers to certain
                questions. Not parliament, but lawyers and judges tell the answer- American
                     Competing legal products (or philosophies) about how to engage in this
                        behavior or what the law means.
                     Examples: Scalia vs. Breyer
           o Two potential problems
                     Lag effect- Justices from the old political generation stay on through the
                        ascendancy of the new generation. Example: Jefferson is president w/ Marshall
                    Is Judging special? – One of the reasons the lawyers and judges have the power
                     to say what the law is, is because it was thought their orthodoxy (craft) made
                     their decision making distinct.
        o Conceptualizing Taney’s Approach
                  Federal gov – Everything given by constitution
                  States – Everything not given to feds. Taney -- Also given the natural right to
                     police for health, safety and welfare. Taney --Also regulating commerce when
                     feds aren’t.
                  After him, there is no longer the idea that if the federal government has given a
                     power that the states could not also have that power simultaneous, so long as it
                     did not conflict with federal desire. Ex. Taxation, Bankruptcy.
   Laissez Faire Era
        o Change in American culture from agrarian to industrial economy.
                  Horse and buggy days are gone.
                  Industrial capitalism is here.
        o 1863-1899, index of manufacturing production rose by more than 700%
                  Carnegie and Rockefeller - “Robber Barons”
        o New economic Goliaths:
                  Mergers, trusts, monopolies, oligopolies
                  Under McKinley admin, massive mergers. 2/3’s of the largest 75 industrial
                     companies in the US has not existed just a few years earlier.
                  New “economic Godzillas in an agrarian legal order.”
                           No government bureaus, just powerful economic entities
                           Wilson – “Jefferson’s view of gov’t belongs to an age w/o railways and
                              telegraph lines. Came to realize gov’t must change and adapt with the
                              times of this new industrial era, if it was to perform its function
        o Capitalism gets sick
                  New phenom: roller coaster ride.
                           No idea of boom and bust. Highs were too high and lows were too low
                                  o Depression in 1880’s and 1890’s
                  Should there be rules for capitalism?
                           Abuses would occur: Worker injuries, child labor, unsafe products.
                                  o The Jungle – Upton Sinclair
        o Labor Movement
                  Unions form, Terrible strikes, Labor reform demanded
        o Transformation of political ideology
                  Forces of capital win – no longer agrarian system.
                           Farmers aren’t rich. People w/ $$ are.
                           Capital v. Labor: Farmers, steel workers, miners.. etc.
                  New way to be conservative: Laissez Faire
                             Business people determine the economy. Captains of industry will lead
                             Challenger: Progressivism. (contemporary liberals)
      EC Knight v. US
           o Sherman anti-trust act. 1890.
                     Concerned about large conglomerations and trusts.
                     Outlawed every contract, combination, or conspiracy in restraint of trade.
           o American Sugar Refining company
                     Controlled over 98% of the industry.
                     Argued that manufacturing is not commerce.
                     Marshall said stuff that is purely local is not commerce, and cannot be touched
                       by feds.
                     Cannot touch me while making something, only can touch final products.
           o Rule of law
                     Gov’t can regulate commerce.
                     Manufacturing will cross interstate lines.
           o The Sherman anti-trust act is constitutional
                     But is not allowed to apply to manufacturing as it is different than selling
                     Dinner Logic
                            You can’t touch cooking while in oven.
                            Before it comes our o the oven, it isn’t yet dinner.
           o Legal Rules
                     Manufacturing is local.
                     Not able to regulate commerce indirectly.
           o Relevance
                     Regime Politics and constitutionalism
                     Political significance: This is for the robber barons. Can’t touch any big
                       manufacturing industry.

Session 18

   1. EC Knight- Review
          a. Dinner Logic w/ regard o commerce clause. Can’t touch the food in the oven. It’s not
              dinner until it is on the table.
                   i. Manufacturing is Local
                  ii. Can’t regulate commerce indirectly.
   2. Hammer v. Dagenhart (1918)
      a. Keating-Owen child labor act, prohibiting the interstate shipment of goods produced by
          child labor.
      b. Couldn’t ship a product in interstate commerce if it employed children under the age of
                i. Or if it allowed children b/w the ages of 14 – 16 to work for than 8 hours a day
                   or more than 6 days a week.
               ii. Reuben Dagenhart’s father opposed the law for the 14 year old to work.
      c. Gov’t can’t regulate manufacturing and they cannot regulate indirectly.
      d. Ruling: Congress cannot ban child labor, because “Santa’s elves don’t count”
                i. Production is not commerce, its local
               ii. Cannot use commerce power for general welfare purposes
                        1. Not for social welfare legislation
                        2. Economic regulation is about supply and demand, trade agreements,
                             etc. Not about utopian society.
                        3. The power to regulate is not the power to govern.
                                 a. Power to control commerce is not the power to destroy it.
                                 b. Cannot ban goods through this logic.
      e. Congress can’t touch
                i. Formation of the corporation
               ii. The labor or work preformed inside
              iii. Putting it in shipment, not federal business if it never leaves the state
              iv. If it is crossing the border, still can’t get at it for purposes of social welfare
      f. Laissez Faire Commerce Clause
                i. Congress may preempt the power to regulate economic things with.. Not for
                   the prepping of things for shipment. So long as not for purposes of social
3. Schecter Poultry v. US (1935)
      a. New government passing the NIRA to fix great depression.
                i. Applied to every sector of American industry.
               ii. Authorized the creation of “codes of fair competition.” Industry code.
      b. Poultry Code
                i. 40 hr work week.
               ii. Minimum wage of $.50
              iii. Health and inspection system
              iv. Regulations on slaughter of poultry
               v. Compulsory record keeping.
      c. Four Schecter brothers operating wholesale poultry business in Brooklyn
                i. Known for shady business practices.
                        1. Selling diseased birds
               ii. Indicted for breaking poultry code.
                        1. Believed cheating gave a competitive advantage.
              iii. 96% of chickens sold were shipped from outside the state. Came into NY.
                    iv. After delivery, chickens stored briefly before being slaughtered.
             d. Issues:
                      i. Live birds coming across the state line, then after slaughter, they stay local.
                     ii. Commerce clause: The legislation violates b/c once purchased, the journey of
                         the chicken ends.
                    iii. After it arrives, it’s done. Cannot be regulated.
                    iv. May be able to get the people who shipped the chickens to Schechter.
             e. Integrity of Judgment
                      i. Judging is special
                              1. They don’t declare policies and are bound by a legal orthodoxy.
                              2. Reach decisions by neither force or will.
                     ii. How does Hamilton look now?

Session 19

Homework: Lochner v. NY (Holmes dissent) and Carter Coal Facts of Carter, Defend Lochner

   1. McCray v. US
          a. Tax on dairy farmers on oleobutter. White butter had smaller tax. McCray refuses to pay
               tax. Argues that the government shows favor for natural butter. Modern analogy:
               Aspartame. Gov’t sued to collect $50 penalty.
          b. What does the constitution say?
                     i. Taxing clause. Government has every right to tax.
                    ii. “The Court argued that to question the purpose and motive of Congress in
                        exerting its delegated powers would be to “usurp the functions of the legislative
                        in order to control that branch of the government in the performance of its
                        lawful duties.”
          c. Arguments
                     i. Lawful power for unlawful purpose is unconstitutional
                            1. Use taxing power to destroy rights that you do not have the power to
                                 destroy, then what is the purpose of the right?
                                     a. Example: Taxing speech
          d. Tax is upheld
                     i. Economy able to be regulated this way
   2. Bailey v. Drexel Furniture (1922)
          a. Bailey argues that 1919 child labor tax is unconstitutional. Companies employing
               children under 14 are taxed 10% of their yearly profits. Drexel had to pay $6k and thus
          b. Answer is not with the commerce clause (Hammer v. Dagenhart)
                     i. This is not a commerce issue, taxing issue.
          c. Can you do something with taxing power what cannot be done with the commerce
                     i. Rule of Law: McCray allows regulation of manufacture through taxing.
                        Constitution allows for congress to tax as it pleases.
                    ii. Defense of Drexel: This isn’t a tax, it’s a penalty. Violation of Congress’s power.
          d. Tax is unconstitutional
                     i. Primary function is to raise revenue. Regulation in disguise, not a tax.
                    ii. Statue required a mental state, (knowingly)
                   iii. Imposed like a fine. “You’re caught!”
                   iv. Enforced by secretary of labor, police force.
                    v. MOTIVE PREMISE: Judges are saying that the motivation of the laws are
                        important. Motive to regulate economy, only done under commerce.
                   vi. Not tax, Penalty.
          e. How would this be ok?
                     i. Congress shall have power to tax… as long as not written as penalties or fines
                        for purpose of regulation.
   3. US v. Butler
          a. Agricultural Adjustment Act of 1933. Classic New Deal program of FDR’s. Government
              pays farmers not to grow crops b/c of overproduction. Called price support.
                     i. Ex: Farmers grow crops, send food to processors. Over supply in market, makes
                        price too cheap to be a farmer. US levies tax for processors and gives $ to
                        farmers. Better supply and demand = better price.
                    ii. Studies of market occur, tax is calculated on what the market should be.
          b. Rule of Law: Tax Allowed?
                     i. Motivation: To get the right market price, get the market working correctly. Not
                        social welfare legislation.
                            1. Nothing wrong with motivation.
                    ii. Only generating revenue for farmers.
          c. Ruling: Unconstitutional tax.
                     i. Purpose to regulate economy. Not allowed to regulate supply and demand with
                        the taxing power, no matter what the constitution says.
   4. But why these Tax cases?
          a. Regime Politics!!!!!!!
          b. FDR changes the court, government enters the modern era.
                     i. Gov’t does what it wants and will not be stopped.
          c. Laissez faire…. Are the judges being fair?

Session 20

Next time: NLRB v. Jones & Laughlin Steel West Coast Hotel Wickard v. Filburn
Oppose NLRB Defend WC Hotel                    Facts of Wickard

      Laissez Faire Decisions
           o Formation of Manufacturing corporation
        o Labor performed inside (EC Knight)
        o In shipment (no social welfare)
        o After it arrives (Schechter)
   Substantive Due Process
        o Important companion to what is going on with commerce and taxing cases.
                 Lochner v. NY (1905)
                          NY labor laws that regulated bakers. Maximum hours limited.
                          Lochner fined for violation, He is a boss baker. Women get white lung
                             from breathing in flour. Labor reforms!
                          Issue: Contract, 14th amendment
                          Rule of Law: Policing power of the state, States have left over power,
                             10th amendment.
                          Ruled unconstitutional: violates due process clause.
                                 o Freedom of contract protected under 14th
                                 o A person going to work has the freedom to barter over wage
                                     and conditions.
                          States cannot regulate the economy either
                          DISSENT: Holmes
                                 o Known as great dissenter. Cases tend to adopt his view.
                                 o Said that this case was decided on economic theory, the
                                     constitution not intended to embody a theory. Made for
                                     different views. These decisions are not what they are supposed
                                     to be, they are ideological.
                                 o Constitution doesn’t tell us how to play capitalism.
                                 o Every opinion tends to become a law. The 14th amendment is
                                     perverted when it is held to prevent the natural outcome of a
                                     dominate opinion.
                                 o Law equals the order of its time. Constitution not the same in
                                     agrarian culture as it is in the industrial culture.
                          States are not allowed to set minimum wages, can’t prevent advertising,
                             can’t pass labor laws.
   The Laissez Faire fortress
        o No regulations!!
                 Motivation cannot be general welfare. And no taxing for this either
                 Never leaves state, local
   FDR and The New Deal
        o Roaring 20’s
                 Great economy, rising standard of living, Hoover is the pres (laissez faire
        o Great Depression
                 Stock market crash in 1929.
                  Capitalism broke
                        Banking collapse
                 1929- 1933 figures:
                        Stock market lost 90% of the value
                        1/3 of country is unemployed
                        Growth is a negative 1/3
        o Activist Government w/ FDR’s election
                 All sorts of new government programs
                 Most productive first 100 days in history
                        FDIC law passed in less than 24 hours.
        o Key Progressive Idea
                 For government to be government, in this age, it had to behave differently.
        o How FDR changed American Politics
                 New theories of what government should do.
                 “Gift that kept giving”
                        Roosevelt gained and kept democratic seats in house and senate. (Even
                            after re-election) Able to push legislation this way.
                        Obviously, laissez faire is OUT
                        FDR elected president 4 times. Had to amend legislation to get him out.
        o Constitutional philosophy of the New Deal
                 New constitutional arrangements
                 Federal government is to lead in policy matters
                 President captains the government
                 2nd republic?
   Governments’ new role w/ capitalism
        o b/f FDR: Capitalism is a transaction b/w buyers and sellers
                 Now, transaction b/w buyers, sellers, and government.
                 Inserted a way to make industrial customs.
   Carter Coal
        o Bituminous coal conservation act (35)
                 Creates a federal commission to regulate the coal industry.
                 Attempts to use the taxing power to enforce it.
                        Tax industries 15% of the value of their production
                        They get a 90% rebate if they agree to the industry code
                                o By theory, its voluntary
                        Key: Movement of coal had not yet started.
   Four Horsemen
        o Biblical reference to the apocalypse
        o Refers to the laissez faire justices which are obstructing the New deal
        o FDR inherits three judges on the left and six on the right
                 Horsemen: Devanter, McReynolds, Sutherland, and Butler
               He is stuck with these justices only has the 3 musketeers.
   Black Monday
        o SC had struck down 8 of the 10 major pieces of New deal legislation
               Mortgage relief for farmers
               Limit the power of the president to replace members of independent boards
               NIRA is unconstitutional (Schecter)
               Program for overproduction of oil
               Taxing and spending power cannot be used
        o Schecter
               FDR: Implications of the decision are almost certainly greater than any decision..
               Horse and Buggy commerce clause.. our lives are not like 1777.
        o In addition, other cases crippled the new deal. Most had 5-4 decisions.
               Adkins v. Children’s’ Hospital
                        Fair wage just for women and children
                        Unconstitutional
               Moorehead v. NY (1936)
                        NY wage case that the court puts on a fast track to the SC. Roosevelt is
                           running for reelection. Wanted to issue another blow to the new deal,
                           before election. Wants Roosevelts campaign to suffer.
                        Legislator created board that set minimum wages for women, man
                           violated and thus imprisoned. Habeas corpus petition.
               Sense that court is losing legitimacy.
                        Only reason these laws are unconstitutional, is the difference between 5
                           and 4.
        o 1936 Reelection
               FDR against Ralph Landon
                        Even Landon supported federal programs for welfare benefits, social
                           security, and hours and wage laws.
                        Progressivism is taking over, world has changed!
                               o GOP platform is supporting these initivates.
                        Business culture is solidly against him, they even outspend the Dems.
               FDR doesn’t mention his plans for the court in the reelection campaign
                        Court Packing Plan
                               o Will add one judge for each sitting judge who fails to retire
                                   within 6 months of 70th birthday.
                               o No more than 2 judges to each circuit court and no more than 6
                                   to the SC
                                        All horsemen over 70.. Total number at 6.
                        Marketing of the Plan
                               o FDR markets the plan by claiming the work is too strenuous for
                                   older people.
                                    o   Older judges cease to explore or inquire into the present or
                                             Hughes upset by the suggestion.
                                    o   Opposition begins to mount to the plan. Some congressmen
                                        don’t like the medicine. They don’t want to offend FDR but they
                                        don’t like the plan
                                    o   Radio is also used.
                                             Changed message: Ideological activism is the problem,
                                                 not age
                                             They are acting as super legislature, not doing its job,
                                                 and isn’t supposed to be like this in the US.
                                             Wants liberal thinking progressives to understand
                                                 working people.

Session 21.

Session 22

Next time: US v. Lopez, US v. Morrison, Gonzales v. Raich              Oppose Lopez, Facts of
Morrison, Defend Raich

       Switch in Time that Saved 9.
            o LF court broken by Owen Roberts
                     He switched vote and made the vote 5-4 against Laissez Faire
            o Two major decisions
                     West Coast Hotel… ended substantive due process.
                             States allowed to regulate the economy.
                     NLRB… Created a new test.
                             “Substantially effect interstate economy.”
                             Reinstated Marshalls opinion in Gibbons. Involved federalizing unions.
       FDR gets what he wants
            o Four horsemen are gone. Hughes and Roberts are gone.
            o Add Douglas, Jackson, Frankfurter
            o Reed is only conservative left.
       Wickard v. Filburn
            o Dept of Agriculture is setting the production quotas for wheat.
            o Filburn given 11.1 acres, exceeds it by 12 acres. Fined $117. Excess not for sale.
                “Homegrown.” Wanted wheat for feed on farm. Not affected by commerce
            o New rule of law: Doesn’t matter that its local. The “affect” test is autonomous.
                     Key factor. Not selling the wheat substantially affects interstate commerce.
                          AGGEGATE the behavior.
                          Aggregation Logic- Trivial is not enough to exclude self from interstate
                           commerce. What if everyone does it?
        o Ruling: Upheld, the fine stands.
                 Important principals
                         Omission counts
                         You may aggregate
        o Substantial means:
                 Not trivial
                 In the aggregate
   Social Welfare motive
        o US v. Darby
                 Federal wage and hours laws
                 Court held that the motive of a statue is irrelevant.
                 The 10th amendment is a “truism”
                         It doesn’t mean anything.
                 Only Wickard test now.
        o Stewart Machine Co. v. Davis
                 Social security is constitutional.
                 No diff b/w tax and regulation.
   What has FDR’s court established now?
        o Congress can get at whatever it wishes. Wickard allows everything to be regulated by
            the 14th.
        o Congress may have the power to regulate the general welfare.
   Conceptualizing Commerce Logic
        o Trading terms
                 Uniform Commercial Code, trade referee, price, warranties
        o Structuring the Market
                 Ban monopolies, euro common market, influence money supply, ban of goods.
        o Morality in Business
                 Child labor, fair wages, safe workplace, no discrimination.
        o Morality in Society
                 Curing poverty, stop gay marriage, fixing the environment, health care program.
        o Congress doesn’t have to be regulating commerce to use the 14th as a federal
            preemption to state law.
   The Second Republic
        o The New Deal was more than a political slogan
                 It represented a new constitutional understanding.
                 The federal sov could take control of any problem.
   Champion v. Ames
        o To be continued..
            o Can’t have federal police state or drug laws w/o the commerce.
       Where does the power stop?
            o Review laundry list.
            o Can congress try and fix global warming? Ban gay marriage? Make people buy health
       A parliamentary system for federal power?
            o No longer have a Article 1. Section 8.
                     It’s a do all clause! The feds may do anything!
                     Interpreted the power to regulate commerce to now covering the rest of
                        allowed federal power.
            o Were we wrong to make us run to lawyers and judges?
                     It’s now a political football.
                     We’d rather vote to control the power.

Session 23

   A Parliamentary system for Federal Power?
        o We no longer have a section 8 to article 1 of the constitution
   Champion v. Ames
        o Federal lottery act of 1895. Can’t buy/sell across state lines. Champion shipping tickets from
            Tx to CA
        o Issue: The constitution tells us what crimes the feds have power over.
                 The commerce power logic of LF would prohibit the construction of the federal
                    police state. (Previously: No police state. Emerges w/ industrialization)
        o Because the crimes provisions are so restrictive, use the commerce power!
        o Ruling: Congress can criminalize the sale of lottery tickets across state lines.
                 After new deal, everything may be criminalized.
                 LF clause was a construction to protect industry.
   Outlawing Discrimination in America
        o Heart of Atlanta Motel v. US
                 1964, civil rights act. Pursuant to authority to regulate commerce.
                 Issue: Can congress use commerce clause to deal w/ problems of race
                 Holding: Yes. Motive is irrelevant.
                         Interdependency
                         Burdens to commerce
        o Ollie’s BBQ
                 Ollie located 11 blocks from an intersection. Only provided take-out service to Afro
                 Held: Affects commerce.
                         Citation: Wickard v. Filburn.
       o   Daniel v. Paul
                Lake Nixon club discriminating against blacks. Well away from major interstate
                Still applied to commerce. Food in snack bar was a part of interstate commerce.
   What have we learned about commerce?
      o Fear the court?
                YES! They are able to do anything w/ commerce clause. Even though there’s no
                   power over the purse or sword, they may tell an individual what to do.
      o In each commerce case, there was a political generation that came to power because of
           strong political power.
                When they came to power, the court seemed to let that generation do what it
                   wanted w/ the commerce clause.
                Lesson of court packing plan: Court can’t stop culture.

Session 24

    1. Regan-era Conservatives
           a. No longer a section 8 to article 1
                    i. Eroded or washed away
           b. Do all clause = commerce
           c. New deal= congress can solve any national problem on the radar
    2. Rehnquist Era Decisions
           a. Most conservative, ever (other than Taney)
           b. After FDR, game of football w/ commerce has seemed to stop.
                    i. What happens w/ Nixon and Regan courts.
    3. US v. Lopez
           a. 1990, Gun free school zone act. Federal offense if w/in 1000 ft of a school zone.
           b. High schooler found carrying a .38 and give bullets
           c. Holding: This does not substantially effect commerce.
           d. New Rule of Law: You may only use aggregation logic for economic transactions.
               (Wickard, growing wheat was an economic behavior. Selling food @ restaurant is an
               economic behavior.)
           e. Loophole: Congress doesn’t make any findings that the statue would “affect
               commerce.” (These are always there, this is just speculation)
    4. US v. Morrison
           a. Violence against Women Act
                    i. Allows suit of attackers in federal court (Already in State)
                   ii. Congressional Findings were made: Discrimination against women hurts their
                       travel. (travel logic)
           b. Holding: Not economic, not allowed to be aggregated, congressional findings are not
                     i. Before: Substantial meant “non-trival.” Now, it really is substantial.
             c. Breyer’s Dissent
                     i. Court is making political mistake. Issuing a warning.
                    ii. Uses words like “crisis, disastrous experiment.”
                   iii. “Judges cannot change the world”
                            1. Therefore, leave the issue to congress.
                            2. We live in a complicated, fast paced world.
                            3. In this world, we leave the general business of gov’t to congress.
                            4. Court cannot remake the culture, and they should stay out of this
             d. Gonzalez v. Raich
                     i. 2005, GW Bush. CA passed law for medical marijuana. Raich and Monson were
                        prescribed marijuana.
                    ii. Problem: Controlled Substances Act. Prohibits drug distribution, no doc
                   iii. Feds come and confiscate, pot heads sued. Under necessity and due process.
                   iv. Difference from Wickard: This product is never brought to market, there is no
                        market for pot. Never leaves state.
                    v. Holding: Rational Basis Test. (Extreme deference) As long as we can come up
                        with some rational basis that it affects the economy. (Only a philosophy, okay!)
                            1. Scrutiny: Rational Basis Test is the lowest.
                   vi. Other: Just like Wickard, the statue is more comprehensive than the others.
                            1. Drug laws regulate prescription medicines, “Schedule II..” etc.
                            2. Would a comprehensive firearm statue be okay?
                  vii. The Point: We are back to Congress able to do what it wants as long as there is
                        some rational conjecture that it affects commerce.
                            1. What about healthcare bill?
                                     a. Its 1/6th of the economy. No way to say it’s unconstitutional.

Class Cancelled

Session 25

      Reading for the Final
           o Chapters 7, 8, and pp. 479-482
      Grades
           o Midterm 24% (Reading ¼)
           o Final 24% (reading 1/5)
           o Writing 18%
           o Attendance/Notes 34%
      Last Supper
       o   A Parliamentary system for federal power?
                Section 8, Article 1 has been washed away. All powers taken through
       o   Big Picture
                1787: Federal Power was only the laundry list
                Now: Power is different. Same document, different interpretations
                Social Transformation
                        Keep in mind how the world changed.
                        Horse and buggy commerce area. No TV.. etc. Barter economy, 95%
                          agrarian. Most of what happens is “local.” No production for
                          distribution or sale until the Railroads came, which = industrialization
                National Economy
                        Interdependent world = much more difficultly in isolation
                        The power over interdependency has grown. Interdependency is
                Regime Politics
                        Each generation w/ own stamping of court.
                        Federalists, Laissez Fair, FDR
                        Seems the strength of the New Deal ended the stamping process.
                               o Regan-Nixon tried, but they walked away.
                               o But why? Why don’t we play football w/ commerce anymore?
                Why Football Ended
                        Too many areas where Congress enacts general welfare legislation.
                        Ex: The federal police state, the environment, poverty, health and safety
                               o Take Morrison and Lopez, create rule what gov can and cannot
                                  do, has a difficult effect.
                        Difficult to lay a rule that would exclude gun-free zones or tort actions
                          but not the federal police state or other sorts of legislation.
                               o Rule wouldn’t be workable
                Law and Society
                        Active gov’t arrived in 1900’s b/c of change in culture.
                               o Law must fit society for law to have integrity.
                               o If law bears no meaningful relationship to culture, there is no
                               o Conceptualizing Hamilton: Law must bear significant
                                  relationship to current society, or it will not work
   Part III
        o Presidency created in 1777 is not the same as today.
        o The office of the presidency is not nearly as it was in agrarian culture.
        o There are all kinds of new innovations that expanded power beyond article II.
               Article II doesn’t give many powers at all.
       o  Sources of Presidential Power
                Article 2.
                Time goes by. Emergency powers, implied powers (executive agreements and
                        Enter right to president to make letter agreements with the force of
                        Congress statutorily delegating power to president.
                        Much more powerful come 1900’s
        o Not just Federal government that has power, the president has it too.
                Introduces 80% of the legislation that Congress passes. Congress is left to
                  reacting to executive power rather than dictating to it.
                President is now the most important policy institution. Chief Legislative Office.
                Not the way the framers created the institution. (Non-partisan, non-popular
        o Idea of States and Feds having separation of power.
                Feds grow stronger
                President grows stronger
                        Power within gov’t shifts to executive.
        o Not just President and Feds
                Electoral college is nothing like it used to be.
                Political Parties are incomprehensible by framers.
                Administrative state was not envisioned.
                Voting and Democracy has radically changed
                Liberties have also changed.
   The American Experiment
        o Structural Changes in Constitution
                Consider what we have done to the constitution
                        Direct election of Senators
                        Direct election of the President
                        Democratization of the Vote
                        Democratization of primary elections
                Original Plan
                        People electing members of house.
                        States appoint senators.
                        States appoint electoral college, then they choose the president.
                        Judiciary
        o The American Experiment
                What happened since?
                        No electoral college, people directly elect president. (Win state, w/ pop
                   Since Civil War, People have more input. Instead of participating w/ feds
                    through states. Rather, they directly elect senate, house, and president.
        It is logical that the status of states eroded as the people became more
        The VA plan would have given a general welfare power to the feds. Relevant
           elites in post-colonial culture almost went for that it. It is not a stretch to think
           that in today’s world the New Deal might fit the Constitution’s new architecture
o   Shared Power Logic
        Section 8 began to erode w/ Taney creating the idea of shared powers for
           regulating commerce.
                 The power of economy is going to be shared.
                 Other powers are shared, can you share the police power?
                        o Yes! Over time it is shared for the “health, safety, and welfare.”

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