Constitutional Law (Spring 2014)
Welcome to Constitutional Law. Class will meet on Mondays and Wednesdays from 12:20 pm. – 1:50 p.m.
- Special course e-mail address (please use this instead of my STCL email): ConLawSpring2014@JoshBlackman.com.
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- You can also view all the class videos by subscribing to the YouTube channel.
- Calendar Subscribe:
The First Amendment Speech II
- Brown v. EMA (887-900).
- United States v. O’Brien (900-907).
- Texas v. Johnson (907-917).
- Time, Place, and Manner Regulations (917-918).
- Renton v. Playtime Theaters (918-924). Incitement (924). Clear and Present Danger (927-931 note 3).
- Brandenburg v. Ohio (935-937).
- Note on Central Hudson (979-980).
The First Amendment – Speech I
- The Addition of the Bill of Rights (43).
- Amemdment Process – Article V (817-818).
- Amendments Outside Article V (821-822 notes 14 and 15).
- Barron v. Baltimore (48-53).
- The BIll of Rights (827-831).
- The First Amendment (831-839).
- New York Times v. Sullivan (853-861).
- Chaplinsky v. New Hampshire (880-884).
- Categorical exclusions (885-887).
Barron v. Baltimore
Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.
This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.
Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.
Here is a transcript of the advertisement.
The New York Times
NEW YORK, TUESDAY, MARCH 29, 1960
“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
- New York Times editorial
Saturday, March 19, 1960
As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….
In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.
In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.
In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy. Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.
Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement. Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest. For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement. Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.
Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.” And now they have charged with “perjury”-a I under which they could imprison him for ten years. Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South. Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle. The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.
Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King. But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others. The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…
We must heed their rising voices-yes-but we must add our own.
We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.
We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.
Your Help is Urgently Needed…NOW!!
L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.
Sullivan is standing to the right of the horse.
Here is Sullivan talking with police officers.
Here is Sullivan with his family in 1962.
Chaplinsky v. New Hampshire
Are these fighting words?
Procedural Due Process, Article IV Federalism, and the Treaty Power
- Matthews v. Eldridge (1456-1463).
- Article IV Federalism (741-744).
- The Guarantee Clause (800). Texas v. White (starting with note 8 on p 811-815).
- Treaty Power (736).
- Missouri v. Holland (736-738).
- Reid v. Covert (738-741).
- United States v. Bond - Oral argument recap
Instructions: The year is 1936. As part of his New Deal series of economic reforms, President Franklin D. Roosevelt signed into law the Health Security Act of 1934. You are a law clerk for the conservative Justice James McReynolds, one of the so-called “Four Horsemen” who routinely find the President’s expansions of federal power unconstitutional. A case challenging the constitutionality of the Health Security Act was recently argued before the Supreme Court. You have been assigned to write a memo of no more than 1,000 words to Justice McReynolds addressing five specific issues regarding the constitutionality of the Health Security Act.
The Health Security Act (“HSA”) of 1934 has the stated purpose of ensuring that all Americans have access to affordable health insurance. The HSA has four key provisions:
Section 1 – “Requirement to maintain minimum essential coverage”
After January 1, 1937, a person over the age of 18 shall ensure that he has a qualified health insurance plan. The Labor Department shall publish a rule defining what constitutes a qualified health insurance plan.
Section 2 – “Shared responsibility payment”
If a person fails to maintain a qualified health insurance plan, then there is hereby imposed on the person a penalty of $1 a month. The penalty shall be paid to the Internal Revenue Service with the person’s annual tax return.
Section 3 – “State Exchanges”
All states are required to establish an “exchange” to allow people to purchase health insurance. The state-run exchanges are required to open offices in each state capital, and in all cities with more than 100,000 residents. The states are required to staff these offices with trained and qualified “navigators” who can assist people signing up for health insurance plans.
Section 4 – “Agricultural Readjustment Act”
Congress makes a finding that broccoli is the most healthful vegetable, and seeks to stimulate its production and consumption. All public and private schools are required to teach students that they should eat broccoli daily. Further, all children under the age of 18 in public and private schools are required to eat one serving of broccoli for lunch every day school is in session. For every day the child refuses, the child’s parents shall be required to purchase one serving of broccoli.
Minutes after President Roosevelt signed the Health Security Act into law, three lawsuits were filed in federal district court:
The first lawsuit, filed by the “Liberty League,” a private group opposed to the New Deal, challenged the constitutionality of sections 1 and 2 of the HSA, alleging that Congress lacks the power to enact the HSA under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Power.
Roscoe Filburn, an Ohio farmer, and his 13-year old son, Frankie Filburn, file suit, challenging section 4 of the HSA. Both insist that they hate broccoli, and don’t want to eat or buy it. Filburn also claims that by sending his son to a private school, he does not want his son to learn about the horrors of broccoli. They both assert that Section 4 violates the Due Process Clause of the Fifth Amendment. They do not raise any claims under any other constitutional provision.
The Attorney General of Texas files a suit challenging section 3 of the HSA, alleging that by forcing Texas to open the exchanges, and hire the navigators, the HSA intrudes on Texas’s sovereignty, and violates the Tenth Amendment and principles of federalism. .
The challenges are all rejected in the lower courts, and are appealed to the Supreme Court.
Shortly after the case is argued before the Supreme Court, in a fireside chat President Roosevelt announces his “Court Packing” plan. He proposes a new law that would allow him to appoint a new Justice to the Supreme Court for every Justice over the age of 70. That would give Roosevelt the opportunity to appoint five new Justices of his own choice, and shift the balance of the Court. The law is virtually assured of passing in Congress.
Justice Owen Roberts,who had in the past found the President’s programs unconstitutional, confided in his colleagues that though he agreed with the HSA was unconstitutional in his entirety, he was considering changing his vote to uphold the HSA to avert a clash between the Court and the President that could impact the Court’s legitimacy. Justice Roberts is “wavering” about whether or not he will uphold the President’s signature piece of legislation.
Justice McReynolds was assigned to write the majority opinion on behalf of his fellow Horsemen, Pierce Butler, George Sutherland, and Willis Van Devanter, and the swing vote, Justice Owen G. Roberts. Justice McReynolds has asked you to write a bench memo that addresses the five issues noted below. Though you have a feeling how Justice McReynolds wants to vote, you have an independent mind, and are assigned to write a memo based on the constitutionality of the HSA under existing precedents in 1936. In other words, offer an objective assessment of the case law. Because McReynolds is a jerk, he imposes a strict word limit–the entire memo can be no more than 1,000 words. Because each of the five issues has an equal value, allocate your word count appropriately.
Address whether Congress has the power to enact Sections 1 and 2 of HSA under the Commerce Clause and the Necessary and Proper Clause of Article I, Section 8.
Address whether Congress has the power to enact Sections 1 and 2 of HSA under the the Taxing Power of Article I, Section 8.
Address whether Sections 4 of HSA violate the Due Process Clause of the Fifth Amendment.
Address whether Section 3 of HSA violates the the Tenth Amendment, and the principles of federalism in our Constitution.
Prepare a note that Justice McReynolds can send to Justice Roberts, explaining why he should not change his vote. Pay special attention to the separation of powers, the legitimacy of the Supreme Court, principles stare decisis, and how the Court will be perceived if he does, or does not switch in vote in response to Roosevelt’s proposal.
Individual Liberty III
- Romer v. Evans (1432-1441).
- Lawrence v. Texas (1557-1571).
- Notes (1571-1572).
- United States v. Windsor (Read to be posted).
- Substantive due process review (1572).
Lawrence v. Texas
Here are photographs of John Geddes Lawrence and Tyron Garner, the Houston residents prosecuted under Texas’s sodomy statute.
United States v. Windsor
On the steps of the Supreme Court.
Here are forecasts of projected support of same-sex marriage over the next eight years.
Please listen to this exchange between Justice Kagan and Paul Clement in United States v. Windsor.
Individual Liberty II
- Eisenstadt v. Baird (1494-1500).
- Roe v. Wade (1500-1516).
- Planned Parenthood v. Casey (1516-1540).
- Notes (1540-1544).
Eisenstadt v. Baird
This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.
This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.
This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.
This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . . and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”
Roe v. Wade
This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.
Here is McCorvey in 1985.
Roe didn’t even make top billing in the Times. LBJ died on decision day.
In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.
Individual Liberty I
- Pierce v. Society of Sisters (1476-1478).
- Buck v. Bell (1428-1432).
- Griswold v. Connecticut (1478-1494).
Pierce v. Society of Sisters
This is the Hill Military Academy, a private school shut down due to the compulsory education law.
Buck v. Bell
This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.
This is Carrie Buck with her mother, Emma Buck.
This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.
This is the courthouse in Amherst County, Virginia where Buck’s case was first “heard”:
This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.
Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.
Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:
The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.
In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”
This piece of propaganda says “Eugenics is the self direction of human evolution.”
Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”
Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:
It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”
In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.
Vivian died at the age of 8 due to intestinal diseases.
Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.
25 year after William’s death, Buck married Charlie Deatmore.
Here is Carrie Buck shortly before she died.
Here is a sign in Virginia to commemorate Buck v. Bell.
Griswold v. Connecticut
Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.
Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.
A penumbra is a partial shadow outside the complete shadow of an opaque body.
Substantive Due Process and Economic Liberty
- Due Process of Law (1443-1444).
- Due Process and Separation of Powers (1444-1446).
- Substantive due process (1463-1464).
- Lochner v. New York (1465-1473).
- West Coast Hotel v. Parrish (1473-1476).
- Additional materials about Lochner to be posted.
Lochner v. New York
Standing on the right is Joseph Lochner.
Here are photographs of Lochner’s bakery in Utica, New York.
Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.
Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”
Muller v. Oregon
Here is the Lace House Laundry from Muller v. Oregon.
Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.
West Coast Hotel v. Parish
This is the West Coast Hotel is Wenatchee, Washington.
United States v. Carolene Products
First, here is Carolene Product’s famous footnote four:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.
I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.
As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”
Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.
Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.
Who want’s some frizzled dried beef or baked ham slice?
As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.
The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).
Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.
Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.
Race & Gender Discrimination
- Loving v. Virginia (1373-1379).
- Sex Discrimination (1407).
- Craig v. Boren (1407-1416).
- United States v. Virgnia (1416-1424).
- Beyond Race and Sex (1425-1428).
- “Fundamental Interests” (1441-1443).
Loving v. Virginia
Here are Mildred Delores Loving (nee Jeter) and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.
Here is a video of a documentary about their case.
Reed v. Reed
It reads, in part:
Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”
Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of . . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.
The location at 1682 S Vista Ave in Boise is now an Angler shop.
Courtesy of Nick Korte.
Craig v. Boren
Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.
(Courtesy of Clare Cushman)
United States v. Virginia
This is the Virginia Military Institute.
Here are some of the first cadets that graduated from VMI.
And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)
And here is a picture of Scalia and Ginsburg riding an elephant in India.
- Discriminatory Intent v. Disparate Impact & Washington v. Davis (1379-1383).
- Affirmative Action (1386-1389).
- Grutter v. Bollinger (1389-1401).
- Notes (1401-1405).
- Fisher v. University of Texas, Austin (Readings to be posted).
- Affirmative Action Outside Education (1405-1407).
Palmer v. Thompson
Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.
Michigan Affirmative Action Cases
This is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger:
This is the University of Michigan Office of Undergraduate Admission.
Abigail Fisher v. University of Texas, Austin
This is Abigail Fisher of Sugarland, Texas
This is the University of Texas, Austin.
Equal Protection and Desegregation
- Cumming v. Board of Education (1346-1349).
- Giles v. Harris (1349-1352).
- Berea College v. Kentucky (1352-1359).
- Desegregation Cases (1359-1360).
- Board v. Board of Education (I) (1360-1363).
- Bolling v. Sharpe (1363-1364).
- Brown v. Board of Education (II) (1364-1365).
- Notes (1365-1370).
Brown v. Board of Education This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.
Here is Brown’s family.
(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.
Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.
This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.
Here are photographs from inside Monroe Elementary.
The white-Sumner Elementary School was much closer to where Linda lived.
The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.
Here is the oral argument sheet from decision day. Here is Chief Justice Warren’s draft of the final opinion. Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:
This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”
This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954. Here is the entire NAACP Legal Defense Fund legal team:
Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”
This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
Aftermath of Brown
Palmer v. Thompson
Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.
In 1957, President Eisenhower mobilized the 101st Airborne to force Governor Orval Faubus from blocking entry to Little Rock Central High School. The “Little Rock 9″ were escorted to school by military protection. As a result of efforts to oppose integration, the Supreme Court held in Cooper v. Aaron that the decisions of the Supreme law of the land, and that the states were required to comply.
In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.
Equal Protection and Segregation
- Citizenship Clause (768-771).
- Dred Scott v. Sandford (771-794).
- Dred Scott notes (794-800).
- Segregation Cases (1337).
- Railroad Company v. Brown (1337-1339).
- Plessy v. Ferguson (1339-1346).
Dred Sott v. Sandford
This is Chief Justice Roger Brooks Taney, the author of Dred Scott v. Sandford.
This is Dred Scott.
This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854.
This is the Court’s judgment in Dred Scott, dated March 7, 1857, and seems to have been signed by Chief Justice Taney.
The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states.
This map illustrates the free and slaves states in America.
Plessy v. Ferguson
We actually do not have any confirmed photographs of Homer Plessy (there are some floating on the internet, but we aren’t sure if they are really him). Here is his grave.
This is Adolph Plessy’s Birth Certificate from Orleans Parish, from 1863.
This is Judge John J. Ferguson.
This is an obituary for Judge Ferguson. It makes no reference of his role in the case of Plessy v. Ferguson.
Here is a newspaper account from the Times Pacayune, June 9, 1892, with the headline, ” snuff-colored descendant of Ham kicks agains the ‘Jim Crow’ law.”
Yesterday afternoon at 4:15 o’clock private detecting C.C. Cain arrested from the East Louisiana [Homer] Adolph Plessy, a light mulatto, and locked him up in the Fifth Precinct station on a charge of violating section 2o of act 111 of the statute of 1890 relative to separate coaches. Detective Cain made an affidavit this morning against Plessey [sic] in the Second Recorder’s Court.
Capt. Cain, speaking of the circumstances of the arrest, stated that he and the conductor had ordered both the man from the white coach into the one set apart for colored people. The negro refused to leave the coach, saying that he had bought his ticket and was going to ride to Covington.
Capt. Cain here told him he would either have to retire to the other coach or go to jail; to which the negro responded that he would sooner go to jail than leave the car, and he was accordingly arrested.
Previous to the arrest the conductor asked, “Are you are a colored man!”” “Yes,” was the answer. “Then,” said the conductor,” you will have to retire to the colored car.” The man refusing, Capt. Cain was invoked, and entering the car, he said to Plessy, “If you are colored you should go into the car set apart for your race. The law is plain and must be obeyed.”
The set upon which the affidavit is based is known as the “Jim Crow Car” bill, and in substance as follows.
“An act to promote the comfort of passengers on railway trains,” requiring all railway companies carrying passengers on their trains in this State to provide equal but separate accommodations for the white and colored races by providing separate coaches or compartments so as to secure separate accommodations, defining the duties of the offers of such railways, directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong, authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railways company from blame or damage that might proceed from such refusal; to prescribe penalties for all violators of this act.”
On the 25th of May last, the Supreme Court rendered an opinion in a suit entitled “State of Louisiana Ex Rel W.C. Abbott v. A.W. Hicks, Judge et al, construed the law as not applying to interstate passengers and applying only to domestic passengers.
Plessy was arraigned before Judge Moulin this morning. He was represented by J.C. Walker, Esq. who waived examination on the part of his client, and the judge committed Plessy to the Criminal District Court under a bond of $500, which was signed and Plessy released.
Plessy boarded the East Louisiana Railroad Co. train at Press and Royal streets.
Here is a photograph of the nearby West End station.
Judge Ferguson found that Louisiana could regulate railroad companies if they only operated in state boundaries. Plessy was ordered to pay a $300 fine.
Albion Tourgee´ represented Homer Plessy before the Supreme Court. He asked the Justices to imagine if they were black.
And in a story almost too good to be true, descendants of Homer Plessy and John Ferguson have started a non-profit known as the Plessy and Ferguson Foundation. Here are Keith Plessy and Phoebe Ferguson. I’ve spoken on the phone to Keith Plessy.
Here is Plessy’s grand-nephew, Keith Plessy, standing at the site where his ancestor was arrested, Press and Royal streets.
The Enforcement Powers of the 14th Amendment
- Enforcement Powers (1306-1307).
- The Civil Rights Cases (1307-1318).
- Notes (1318-1322).
- Note on 11th Amendment (1262-1263).
- Sovereign Immunity (557-558).
- 11th Amendment (558).
- Chisolm v. Georgia (558-566).
- Hans v. Louisiana (566-570).
- City of Boerne v. Flores (1327-1337).
- United States v. Morrison (1322-1327).
The Civil Rights Cases
The Grand Opera House in New York CIty, formerly known as Pike’s Opera House, was located on the Norhtwest Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.
I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.
This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.
United States v. Morrison
This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.
City of Boerne v. Flores
Here are photographs of St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.
These photographs are courtesy of Hanah Volokh.
The Reconstruction Amendments
- The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
- The Thirteenth Amendment (1266-1267).
- The Fourteenth Amendment (1267-1271).
- Slaughter-House Cases (1271-1287) (Skim majority but read the dissents).
- Notes (1288-1291).
- Early Interpretation of Equal Protection (1292).
- Bradwell v. Illinois (1292-1295).
- Minor v. Happersett (1295-1301).
- Strauder v. West Virginia (1301-1306).
The Slaughter-Houses Cases
Here is a wood-cutting of the New Orleans Slaughterhouse.
Bradwell v. Illinois
This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.
Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.
The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.
The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 - It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court. Senator Matthew Carpenter made the argument for her.
Susan B. Anthony
Rochester – N.Y-
Minor v. Happersett
This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.
This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:
- He has made her, if married, in the eye of the law, civilly dead.
- He has taken from her all right in property, even to the wages she earns.
- He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.
The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.
Strauder v. West Virginia
Taylor Strauder, a black man, was convicted of murder by an all-white jury. Strauder challenged his conviction because West Virginia excluded all African-Americans from the jury. The Supreme Court held that this exclusion based on race violated the Equal Protection Clause.
National Federation of Independent Business v. Sebelius (“Obamacare”)
- Enumerated Powers and Federalism (597-598).
- NFIB v. Sebelius (683-711).
- NFIB Notes (711-715).
Scope of Federal Powers III
- Taxing Power (637-643).
- The Spending “Power” (643-645).
- United States v. Butler (645-648).
- South Dakota v. Dole (648-656).
- New York v. United States (657-670).
- Printz v. United States (670-683)
Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)
The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B
By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.
Here is a photograph form 1906 of the Drexel Furniture Company in Drexel, North Carolina that employed child laborers.
The company’s first plant burned in 1906. The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity. An addition was added in 1918.
Steward Machine Company v. Davis (1937)
The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.
I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.
Here is their modern-day image.
United States v. Butler
This is President Roosevelt signing the Agricultural Adjustment Act into law.
And some cartoons.
South Dakota v. Dole
This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.
Printz v. United States
The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.
I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).
Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.
From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.
Sheriff Richard Mack at the Utah Capitol.
Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.
More pictures of Sheriff Printz
Scope of Federal Powers II
- Wickard v. Filburn (607-612).
- The modern debate (612).
- Hearts of Atlanta Motel (612-617).
- United States v. Lopez(617-637).’
Wickard v. Filburn
This is farmer Roscoe Filburn.
This is Secretary of the Agriculture Claude Wickard.
This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.
Hearts of Atlanta Motel v. United States
The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.
Katzenbach v. McClung
This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.
And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.
United States v. Lopez
This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990.
I obtained these (blurry) photographs from Lopez’s high school yearbook.
The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.”
Gonzales v. Raich
This is Angel Raich, the lead plaintiff in Gonzales v. Raich.
Here is a photograph of Raich using a marijuana vaporizer.
Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.
Here is Raich finding out that the Supreme Court ruled against her cause.
Scope of Federal Powers I
- Federalism (577-578).
- Federalism Map (578-581).
- Federalist No. 10 (581-587).
- National Powers (588).
- The Ninth and Tenth Amendment (1258-1262).
- Early Disputes over National Power (588-591).
- Gibbons v. Ogden (591-597).
- History of Commerce and Necessary and Proper (598-605).
- United States v. Darby (605-607).
The Judicial Power
- Judicial Power – Article III (486-491).
- Correspondences of the Justices about Advisory Opinions (501-503).
- “Case or Controversy” requirement (504-507).
- Summers v. Earth Land Institute (513-519).
- Political Question doctrine (519-520).
- Luther v. Borden (520-528).
- Art. III Jurisdiction of the Federal Courts (537).
- Congressional authority over federal jurisdiction (544-548).
- Ex Parte McCardle (550-557).
Summers v. Earth Land Institute
This suit was brought by various environmental groups, including the Sierra Club, the Earth (Is)Land Institute, and others.
The case concerned the sale of burned timber in the Sequoia National Forest. The tallest tree in that area is “General Sherman,” which is 274 feet tall!
Luther v. Borden
This is Thomas Dorr, who lead the insurrection in Rhode Island.
Ex Parte McCardle
The Executive Powers III – Detention
- Ex Parte Quirin (444-454).
- Korematsu v. United States (454-468).
- Authorization for Use of Military Force (434-435).
- Hamdi v. Rumsfield (468-475).
Pictures of these cases are below the jump.
The Executive Powers II- Foreign Affairs and War
- Inherent Executive Powers (308).
- Executive Powers for Foreign Affairs (383-385).
- Curtiss-Wright (385-390).
- Dames & Moore v. Regan (392-399).
- The War Power (411-413). Practice and Precedent (415-416).
- Prisoners of War and Civilian Detention (439-440).
- Ex Parte Milligan (440-444).
Curtiss-Wright was a manufacturer of aircrafts and other military equipment, founded in 1929.
This is Curtiss-Wright’s headquarters in Caldwell, New Jersey (circa 1941).
Curtiss-Wright got in trouble by selling weapons to Bolivia during the Chaco War (1932-1935), where Bolivia was fighting against Paraguay. The Chaco region was thought to contain oil. Bolivia and Paraguay, both poor landlocked countries, had difficulty obtaining arms. This was largely due to the fact that Congress, through a joint resolution, gave President Roosevelt the power to embargo arms shipments to any country engaged in the Chaco war. Curtiss-Wright sent bombers and fighter planes to Bolivia, notwithstanding the embargo, and was indicted.
Here are Paraguayan (not Bolivian) soldiers manning a machine gun during the Chaco war.
This is Thomas Regan, who was the secretary of the treasury in Dames & Moore v. Regan.
This is the logo for the Dames & Moore Group Company.
Justice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.
Of course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:
Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’
Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.
To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32
When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.
A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.
On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.
Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.
Ex Parte Milligen (1866) resolved the question of whether the United States could try citizens in military tribunals even though civilian courts were still operation. The defendant in the case was one Lambdin Milligan, who was accused of attempting to invade Union prisoner of war camps to recruit soldiers to fight against the United States, and topple state governments in Indiana, Ohio, and Michigan.
This is the 12-member military commission that presided over Milligan’s treason trial.
Milligan was represented by a legal dream team before the Supreme Court, including future President James A. Garfield, future Governor of Indiana Albert G. Porter, Mr. codification himself David Dudly Field, and future Attorney General and Secretary of State Jeremiah S. Black. Arguing on behalf of the United States was Benjamin F. Butler, who would go on to serve as Governor of Massachusetts.
The concurring opinion in Milligan was authored by Chief Justice Salmon P. Chase, appointed by Lincoln, and formerly a Senator and Governor from Ohio, as well as Secretary of the Treasury.
He is the only Justice to appear on a piece of currency–the $10,000 bill!
And note back then it said “Ten Thousand Dollars in Gold. All currency could be transferred gold. But then FDR decided to single-handled change that policy, amount to a massive taking, but the Supreme Court upheld it in the Gold Clause cases because FDR wouldn’t listen.
The Executive Powers I – Appointments Power
- The Executive Power – Article II (296-297).
- Notes (306-308).
- The Appointment Power (334-335).
- The “Removal” Power (348-351).
- Myers v. United States (351-366).
- Humphrey’s Executor v. United States (366-370).
- Morrison v. Olson – Removal (370-382).
- National Labor Relations Board v. Noel Canning (2014): Case overview in plain english, and oral argument recap
- The “Faithfully Executed” Clause (316-318).
- The “Take Care” clause (330-331).
- Impeachment (475).
The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).
This is Justice Taft, who had the second-nicest mustache on the Court.
This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.
This is Justice Louis Brandeis.
Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.
This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.
This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.
This is Alexia Morrison, the independent counsel in Morrison v. Olson.
This is Ted Olson, who served in the Reagan Justice Department, and was subject to investigation by Morrison.
Chief Justice Rehnquist wrote the majority opinion for the Court.
This is the Justice Scalia bobblehead. Note the wolf, because of his famous line that “this wolf comes as a wolf.”
The Legislative Powers
- Bicameralism & Presentment (260-261).
- INS v. Chadha (261-272).
- Clinton v. City of New York (272-281).
- Read Article I, Section 8 of the Constitution (3-4).
- Enumerated Powers in Article I, Section 8 (281-283).
- Bills of Attainder (283-284).
- Note 5 – Nixon v. GSA (293-294).
- Ex Post Facto Clause (294-295).
- Contracts Clause (295).
This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.
This is Jagdish Chadha.
Justice Louis Powell authored a concurring opinion.
Justice White dissented.
The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”
The majority opinion was authored by Justice John Paul Stevens.
Justice Anthony Michael Kennedy concurred.
Justice Stephen G. Breyer dissented, in part.
Justice Antonin Scalia dissented, in other parts.
Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.
The Separation of Powers
- Separation of Powers (173-175).
- Youngstown Sheet & Tube (175-190).
- The Powers of Congress – Article I (190-192).
- Enumerated Powers (192-193).
- M’Culloch v. Maryland (193-209)
This is a postcard of the Youngstown Sheet and Tube Mill.
Here are photographs of the actual steel mill at issue in Youngstown, Ohio.
This is Secretary of Commerce Charles Sawyer, whom Truman ordered to seize the steel mill.
The lead opinion in Youngstown was authored by Justice Hugo Black.
There were also concurring opinions written by five Justices. This is Justice Felix Frankfurter.
This is Justice William O. Douglas.
This is Justice Robert H. Jackson. Justice Jackson, who would serve as the lead prosecutor at Nuremberg, authored what has been seen as the definitive opinion in Youngstown.
This is Justice Tom C. Clark (a graduate of University of Texas at Austin).
Chief Justice Vinson dissented, joined by Justices Reed and Minton.
You can read Executive Order 10340, Executive Order 10340 – Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companiesm, here:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:
1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.
2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.
3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided that such activities do not interfere with the operation of such plants, facilities, and other properties.
4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.
5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes.
6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility or other property to the company in possession and control thereof at the time possession was taken under this order.
7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable.
This was Marshall’s original draft opinion in M’Cullough v. Maryland.
Why is the Constitution Supreme?
- Constitutional Supremacy and Interpretation (123-124).
- Federalist No. 51 (128-129).
- Federalist No. 78 (133-138).
- Background of Marbury v. Madison and Judicial Review (140-143).
- Marbury v. Madison (143-155).
- Stuart v. Laird (155-156).
- Judicial Supremacy and letters from Jefferson and Madison (159-161)
Today’s class will focus on these clauses of the Constitution:
Article II, Section 2: He shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United State, whose Appointments are not herein otherwise provided for, and which shall be established by Law.
Article II, Section 3: He . . . shall Commission all the Officers of the United States
Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . .
In addition, here is the Section 13 of the Judiciary Act of 1789 (one of the first acts the First Congress voted on) at issue in Marbury:
And be it further enacted, That the Supreme court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public minister, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
The Federalist Papers were a series of 85 articles written jointly by James Madison, Alexander Hamilton, and John Jay, under the pseudonym Publius, following the submission of the Constitution to the state conventions. The purpose of these papers were to raise support for ratification.
Here is a photograph of the Forrest-Marbury House in Washington, D.C., which was acquired by William Mabury in 1800. The house would remain in the Marbury family for the next century. It currently serves as the Embassy of Ukraine, located at 3350 M Street NW in Georgetown (not far from the Key Bridge).
There is a plaque in the front commemorating the location:
And here is the original copy of the opinion.
Thanks to Max K. for the photographs of the house.
Our Founding Documents
- The Declaration of Independence
- The Articles of Confederation (pp. 1633-1638)
- The Constitution of the United States (pp. 1-15).
- The Adoption of the Constitution (19-27).
- Six broad themes of the Constitution (35-39).
- Map of the Constitution (39-42).
Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.
This is the Declaration of Independence (July 4, 1776).
This is the first page of the Articles of Confederation (Ratified in 1781).
These are the four pages of the Constitution of the United States of America. The Constitution was proposed on September 17, 1787, and ratified on June 21, 1788 with the ratification of New Hampshire, the 9th State to join the Union.
These are the first Ten Amendments to the Constitution, proposed in 1789 and ratified in 1791 (the phrase “The Bill of Rights” only came into common parlance following the Civil War).
Welcome to Constitutional Law.