ARTICLES OF CONFEDERATION
Reasons for the Revolution:
1. Preference for local rather than distant government
a. Distant government = tyrannical government and more likely to infringe a
person's liberty. You're not nearly as likely to be treated wrongly if it was
someone you knewThe Articles:
1. Treaty among newly sovereign states allocating relatively little power to this
new central gov’t.
2. No separation of powers.
3. AoC had a president but he was just a master of ceremonies.
a. There was debate over whether t have a single executive, a committee,
or multiple people.
b. Single Executive is more efficient- can act quickly and with more
secrecy in emergency situations
4. Congressional Powers were very limited
a. The government could not demand and compel funds (couldn't tax the
states) so when needing to spend money they would ask the states. The
states were acting out of self-interest so they were never interested in
helping.
b. U.S. needed money to pay off war debts to French and Dutch, but
States showed no interest in paying it off- didn't want to upset their
own people through taxes because it would upset the social fabric.
5. The states were raising trade barriers against each other and protectionism was
running rampant. This was choking the economy and reducing economic
growth which made it harder to pay our debts or even to raise more money.
6. Any 1 state could kill any initiative.
Constitution created a stronger national government- the big question is how much
stronger.
Method’s of Constitutional Interpretation
1. Does the method actually yield a relatively determinate answer?
2. If it does, how much weight should a decision maker give to that answer?
Plain Text- Linguistic
1. Start here, but vague or ambiguous clauses lead to difficulties
2. Sometimes leads to unacceptable results- E&E pg 35
Structuralism- Arguments based on the Structure of the Gov. as defined by Constitution.
Horizontal- Separation of Powers Articles 1-3
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Vertical- Federalism
Federal law trumps State law
Tenth Amendment
Originalism:
1. Drafter’s intenta. Epistemic Concerns
b. Class issues
c. Democratic Legitimacy
2. Ratifiers’- state conventions
a. Epistemic Concerns
b. Class issues
3. Ordinary Public Meaning in 1787
Consequentialism1. Should it only be a last resort?
2. Problemsa. Institutional Legitimacy
Intratextualism- comparing how a word is used in one part of the document to another
part of the document.
Ex. Marshall’s comparison of “absolutely necessary” v. “necessary and proper”
Expressio Unius- If you use a term in one section and leave the term out in similar
section, then it is assumed that the term was intentionally left out.
Contextualism- consider where in the document the clause is located.
PrecedentPractical Precedent- Public Opinion, Legislative, Executive
Hamilton’s Lighthouse argument- We’ve always interpreted it this way, so
everyone assumes it is right.
Judicial PrecedentBinding/ Persuasive
Judicial Review/Separation of Powers- Who has final say in
Constitutional Interpretation? (Horizontal)
JudiciaryStuart v. Laird Hylton v. United States
1. Patterson establishes Judicial Review but does not use the power
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Adopts the Hamiltonian perspective on the scope of federal legislative power,
rejecting a strict necessity test in favor of something more flexible (while still requiring
that the statute be in furtherance of an expressly enumerated power).
Asserts for the judiciary the power to pass ultimate judgment on whether a given
federal statute is a genuine effort to act in furtherance of an expressly enumerated power,
or if it instead is a pretextual attempt to achieve some other purpose.
Willson v. Black-Bird Creek Marsh(pg 179)Court ruled that the damming up the creek was more related to police power than
commerce power. Therefore Delaware had the power dam the creek.
Pre-Civil War Discussion
Fredrick Douglass1. Dead Hand Argument- Strict Textualism
2. Intent doesn’t matter, but even if you look at it, it was their intent for us not to
consider original intent.
3. Disparages Practical Precedent. Slavery has always been wrong and
unconstitutional, that doesn’t mean you should keep doing it.
James BuchananSecession was illegal, but North has no authority to keep Southern States from leaving.
President has no power to declare war on States.
Individual Rights
When Discussing Individual Rights:
1. Identify supposed right at issue
2. Determine whether right is judicially enforceable
3. Determine whether the gov’t has infringed upon that right inappropriately
Property Rights
1810- Fletcher v. Peck- (140)1. Court ruled Georgia cannot repossess property from good faith
purchasers
2. Legislature can repeal acts passed by former legislatures, but
cannot abridge the powers of a succeeding legislature
3. State legislatures are bound by the contract clause.
1798- Calder v. Bull(149)- Role of Natural Law
A.
B.
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Chase- Pro Natural Law
Iredell- Natural Law is too subjective to be decided by court
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1857- Dred Scott v. Sanford (229)Taney1. Originalism
2. Could have decided the case quickly based on fugitive slave clause.
Chose to address more issues than necessary. Did not uphold Canon of
Constitutional Avoidance.
Curtis’ dissent- uphold broad principles of constitution.
Substantive Due Process v. Procedural Due Process.- depriving a citizen of his property
(a slave) merely because he took that property to a particular territory (a nonslave state)
was a denial of due process.
Shift from Natural Law to Positive Law
Slaughterhouse Cases
1. Reads 13th Am narrowly and literally
2. Neuters Privileges and Immunities- applies only to rights that are peculiarly
national in nature such as right to travel to D.C.
3. Equal Protection Clause- meant primary to prevent discrimination against blacks.
It may have broader reach, but not broad enough to show that butchers are being
discriminated against.
4. 14th Am. Due Process ClauseEconomic Rights
The!Shift!From!a!Deferential!Posture!to!Intrusive!Judicial!Review!of!the!Justification!
for!Using!the!Police!Power!!
1877!–!Munn$v.$Illinois$–$Courts!will!not!scrutinize!justification!for!a!price!cap!if!the!
economic!activity!in!issue!impacts!the!general!public,!but!they!might!strike!down!
legislation!attempting!to!regulate!purely!private!economic!affairs.!!
1886!–!Railroad$Commission$Cases$–$Another!“rate!cap”!upheld,!but!this!time!CJ!
Waite!warns!that!not!just!any!rate!cap!would!be!tolerated!(implying!substantive!
judicial!scrutiny!of!the!reasonableness!of!the!rate!cap)!
1886!–!Santa$Clara$County$v.$So.$Pac.$Railroad!–!Corporations!count!as!“persons”!for!
purposes!of!the!14th!Amendment!
1890!–!Minnesota$Rate$Cases!–!Striking!down!MN’s!system!of!rateZsetting!on!the!
ground!that!judicial!review!is!a!necessary!component!of!due!process!when!the!state!
seeks!to!impose!maximum!charges!
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1896!–!Plessy$v.$Ferguson!–!When!Harlan!objects!on!slippery!slope!grounds,!the!
majority!responds!that!courts!would!strike!down!a!segregationZtype!law!if!it!were!
not!reasonable,!not!in!the!public’s!interest!
1897!–!Chicago,$Burlington$and$Quincy$Railroad$v.$Chicago!–!“Due!process”!protected!
by!the!14th!Amendment!includes!an!obligation!to!pay!just!compensation!when!
exercising!eminent!domain!(thus!“incorporating”!the!Takings!Clause!of!the!5th!
Amendment!against!the!States)!
1898!–!Holden$v.$Hardy!–!Maximum!hours!law!upheld!for!mining!industry!
1905!–!Lochner$v.$New$York!–!Maximum!hours!law!struck!down!for!bakery!industry!
1905- Lochner- Freedom of Contract is part of “liberty” protected by 14th Am. Court
has the authority to review legislation and balance the State’s interest against the
Individual’s right. Court said State’s interest was not significant enough to justify
infringement in this case.
Harlan’s Dissent- court should just check to see if there is any evidence to support
Congress’ conclusion. If so, defer to Congress’ judgment. “Substantial Justification” test.
Holmes Dissent- Law is not clearly unrelated to public health (a legitimate interest) and
so Court should defer to the legislature’s judgment. Constitution does not enshrine
Private Ordering.
Private Ordering- it’s not necessary for gov. to regulate rules that govern society.
Private citizens are capable of entering into contracts without gov. interference.
1934- Nebia v. NY (pg 500)- Court says that NY has right to put min. price on Milk, but
does not say whether or not he approves of Congress’ judgment or simply defers to their
judgment. Says statute is not “unreasonable, arbitrary, or capricious.”
1934- Home Building & Loan and Blaisdell (Minn. Mortgage Moratorium Case) (pg
501)
Bank says statute violates Contract clause (Article 1 §10), and it obviously does.
Hughes’s majority- Court upholds law on a Consequentialism argument. Founders did
not foresee modern complex economy. Very clear overruling of original intent.
Doctrinal Test to determine when contract infringement is acceptable- Defer to
Legislature (opposite of Lochner decision)
Beginning of the end of the Lochner era. Does not directly overrule Lochner because this
case is about Contract’s clause not 14th Am. substantive due process.
1937- West Coast Hotel v. Parish (511)- overrules Adkins v. Children’s Hospital.
Upholds min. wage law for women.
Court will now to defer to Congress on 14th Am. substantive due rights issues (opposite
of Lochner). Doctrinal Test:
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1. Is there a legitimate purpose
2. Is the means reasonably related to the end?
Can’t be “arbitrary or Capricious”
1938- U.S. v. Carolene Products CO.
Similar to The Lottery Case (Champion v. Ames)—involves a product that is
inherently bad for public.
-Like West Coast Hotel, court offers nearly complete deference to Legislature.
-Establishes “Presumption of Constitutionality.” Also presumes “the existence of
facts supporting the legislative judgment” if at all possible.
Advantages of Extreme Deference:
1955 Williamson v. Lee Optical-Total deference to state legislatures for economic regulation. Does not have to be a tight
nexus between the regulation and the goal. Just can’t be arbitrary or capricious.
-Equal Protection argument- Opticians are not a suspect class
Non-Economic Individual Rights
Educations Rights:
1923- Meyer v. Nebraska (1340)- Court strikes down law banning schools from teaching
German to children before 8th grade. Court recognizes parents’ liberty to control the
education of their children. Very little attention paid to doctrinal rigor. “privileges long
recognized by common law as essential to the orderly pursuit of happiness by free men.”
1923ish- Pierce v. Society of Sisters- Struck down Oregon law banning private schools.
1937- West Coast Hotel overturns Lochner.
Procreative/Sexual Rights
1942-Skinner v. Oklahoma 1341- Court strikes down OK’s Habitual Criminal
Sterilization Act. Act said that third time felony offenders would be sterilized. Court says
that right to procreation is a fundamental right, and therefore applies strict scrutiny. Court
recognizes this right despite lack of help from Carolene Products footnote 4. How do you
distinguish from Lochner? Are family rights different from commercial rights?
1965- Griswold v. Connecticut (1342)- Court strikes down law criminalizing the use of
contraceptives and assisting anyone in obtaining contraceptives.
Individual Rights (Skinner, Meyer, Pierce) vs. Commercial Rights (Lochner). Is this a
valid distinction? Both are unenumerated rights, and both are actually “individual rights.”
Douglas’ solo lead opinion- wants to base the right to use contraceptives in the text of the
Bill of rights. He defines the right at issue as a “right to privacy.” Says right to privacy
can be inferred from 1st, 3rd, 4th, 5th, and 9th Amendments. (Douglas’ opinion is known in
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