Class Notes

  warning: the following notes are not models for case briefs, nor do they consistently provide quotation marks where appropriate. They're just notes.

Con Law 1: historic, expansive issues in the development of the government, questions of the role of the judiciary, the relationship between the exec and legis branches, the power of the exec and legis branches, the commerce clause, the necessary and proper clause, taxing power

Con Law 2: procedural law: 4th, 5th, 6th, 8th, 14th Amendments. Rights of those suspected, accused, and/or convicted of crimes

Con Law 3: 1st Amendment.

Areas of law: con law, procedural law, criminal law, environmental law, copyright law, entertainment law, immigration law


Approaches to Constitutional Interpretation:

A simplistic overview is Strict Constructionism v Broad Constructionism

A more useful overview is

1.Textual Analysis

2. Original Understanding


4.Constitutional Doctrine

5.Logical Reasoning

6.The Living Constitution

7.Reliance on Foreign Law and Courts

Structural and procedural context of Constitution

1. Separation of Powers

2. Federalism

3. Large Republic

4. Dominant Legislative Branch

5. Energetic Executive

Key Provisions of Constitution Encountered in Con Law I (or those of special interest)

Art I, II and III: generally speaking

Is the Preamble ever adjudicated?
interesting article on preambles HERE

Article I Section 8: paragraph 3, paragraph 18

Article IV Section 1

Article VI, Section 2

Amendment V (“public” = “government”)

Amendment X

Amendment IV, Section I



Judicial Review 

Federalist #78

Externally Imposed Restraints: 

1. Exceptions Clause (Article III, Section 2)

Court-Imposed Restraints on Judicial Activity
Questions of "Justiciability"

1.Cases and Controversies- not hypothetical, feigned, collusive

2.Standing to Sue- injury, provide remedy


For example, Voter I.D. laws HERE:

5. Political Questions

The Expanding Role of the Courts. Why?
1.lowering judicial restraint

2.expanded government activity

3.interest group activity

4.courts willingness to provide prescriptive (as well as prohibitive) remedies. Government “sins of omission,” not just government “sins of comission.”

Structure of the Judicial System:

—federal v state (dual system)

—Structure of Georgia courts

Georgia Superior Courts, Georgia Court of Appeals (12), Georgia Supreme Court (7)

—federal districts (94)

(three districts in Ga.: southern, middle, northern)

—courts of appeal (11 + D.C.)

U.S. Supreme Court

Sonia Sotomayor (Obama), Stephen Breyer (Clinton), Samuel Alito (George W. Bush), Elena Kagan (Obama), Clarence Thomas (George W.), Antonin Scalia (Reagan), John Roberts (George W.), Anthony Kennedy (Reagan), Ruth Bader Ginsberg (Clinton)

West Wing Episode: Season 5, Episode 17: “The Supremes"

Marbury v. Madison (1803)

Issue: Is “applicant”, William Marbury, entitled to commission?

Political background: Federalist v. Democrat-Republicans

A critical moment for the prestige—and power of the court.

Holding: Yes, according to the letter of the statute, but the Supreme Court cannot provide a remedy.

Reasoning: Judiciary Act of 1789 is unconstitutional because it expands SCOTUS jurisdiction by statute (rather than amendment)

Questionable jurisprudence, but politically astute (cf. health care ruling)

Emphatically establishes judicial review

Underscores the supremacy clause

cf. National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services  (2012)

Most important question was whether Commerce Clause allows for individual mandate penalty. Answer: no

Does Necessary and Proper Clause allow for individual mandate penalty? Answer: no

Court concluded, though, that the penalty then, must be a “tax” authorized by the Taxing and Spending Clause and thus it is constitutional.

Like M v. M, the reasoning in Nat’l Fed v. Sibelius is questionable, and like M v. M, it is political clever and, in some measure, preserves the authority of the court, especially since Bush v. Gore (2000)

Eakin V. Raub (1825)

Significant because dissent by Justice Gibson repudiates M v. M endorsement of judicial review

Cooper v. Aaron (1958)

civil rights video

Faubus speech


Must governor and legislature of State of Arkansas obey federal court orders proceeding from SCOTUS interpretation of Fourteenth Amendment in Brown v. Board of Education (1954) which “forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property” ?

Holding: Yes

1.Court reaffirms the right of public school children to protection against any state action denying their equal protection (equal protection clause of 14th amendment)

2.Article VI of Constitution makes Constitution “supreme law of the land” and it is the provence of SCOTUS to interpret the Constitution. Therefore every 
“state legislator and executive and judicial officer” is bound by oath to support the Constitution, and by implication, interpretations of the Constitution.

Although public education is primarily ‘the concern of the states” (see Reserve Powers of 10th Amendment); nonetheless, that power must be exercised in a manner consistent with “federal constitutional requirements.”

Segregation in schools violates equal protection.


Ex parte McCardle (1869)


1.Does SCOTUS have jurisdiction?

2.Were McCardle’s habeas corpus rights violated?


1.No (1.)

Reasoning: Court lacks appellate jurisdiction since the 1867 statute is repealed

For a review of the Reconstruction period SEE:


Lujan v. Defenders of Wildlife (1992)

DOF home page 

Ashley Judd with DOF

Endangeroud Species Act (ESA) of 1973


Do defendants have standing to seek judicial review of the rule

Holding: No


1.One of “landmarks” marking SCOTUS jurisdiction is “cases and controversies”

2.Standing minimally requires that the “party invoking federal jurisdiction” bear burden of establishing:

-- “injury in fact”

-- “causal connections” between injury and action at issue in case

-- must be “likely” that court can “redress” injury

3.Kelly’s and Skilbred’s “ecosystem nexus,” “animal nexus” and “vocational nexus” are “beyond all reason “procedural injury” has occurred

Hein v. Freedom from Religion Foundation


1. Do defendants (Freedom From Religion Foundation”) have standing?

2. Does Faith-Based and Community Initiatives program violate Establishment Clause

Holding: No (1.)


(This case does not meet the Flast v. Cohen exception to “taxpayer suits”)

[relevant cases: Frothingham v. Mellon (1923), Flast v. Cohen (1968)]

(In Flast, Warren established a "double nexus" test which a taxpayer must satisfy in order to have standing. First, he must "establish a logical link between [taxpayer] status and the type of legislative enactment attacked." Second, "the taxpayer must show the challenged enactment is generally beyond the powers delegated to Congress by Article I, Section 8." Only when both nexuses have been satisfied may the petitioner have standing to sue)

Concurring opinion by Scalia suggests that the Reasoning by the majority 

Luther v. Borden (1849)

HERE is an overview of the Dorr Rebellion

Does Article IV, Section 4, providing that "the United States shall guarantee to every State in the Union a republican form of government, and protect them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence," require the Supreme Court to determine the lawful government of Rhode Island?

Holding: No

Reasoning: SCOTUS is limited because it is a political question

Georgia's Congressional Districts after 2010 Census

Baker v. Carr (1962)

Issue: May the court hear the case?


Reasoning: (Brennan's reformulation of political question doctrine)

This is a typical Brennan opinion: poorly organized, a bit confusing, but highly influential.

1. Case falls within federal jurisdiction

2. Does Baker have “standing”? That is, does case involve “legal rights of litigants in actual controversies? The “injury” is that the voters are in position of “inequality,” that is the “effectiveness” of their votes has been “impaired.

3. does malapportionment violate the Guaranty Clause? (no)

4. “political questions” have to do primarily with the separation of powers, not the relationship between federal gov’t and state gov’ts

5. this case involves equal protection clause of the 14th amendment, therefore it is justiciable and not a “political question.”

The decision of Baker v. Carr was one of the most wrenching in the Court's history. The case had to be put over for reargument because in conference no clear majority emerged for either side of the case. Charles Evans Whittaker was so torn over the case that he eventually had to recuse himself. The arduous decisional process in Baker is often blamed for Whittaker's subsequent health problems, which forced him to resign from the Court.[citation needed]

The opinion was finally handed down in March 1962, nearly a year after it was initially argued. The Court split 6 to 2 in ruling that Baker's case was justiciable, producing, in addition to the opinion of the Court by Justice William J. Brennan, three concurring opinions and two dissenting opinions. Brennan reformulated the political question doctrine

home made youtube oveview of case:


Nixon v.United States (1993)


1. Is the case justiciable?

2.Did the Senate’s use of a committee to hear evidence in an impeachment trial violate the constitutional requirement in Article I, Section 3 that the Senate “try” all impeachments.”

Holding: no (1)

1.the word “try” can be understood more broadly than Nixon argues.
2.the word “sole” does not limit the Senate’s action
3.history and contemporary understanding of impeachment provisions contradict Nixon’s argument
4.SCOTUS should not exercise judicial review over impeachments proceedings because a. the Founders separation impeachment and trial for impeachment provide independence and fairness and b. judicial review would violate separation of powers.


DeShaney v. Winnebago County Department of Social Services (1989)


Did the failure of the Winnebago County Department of Social Services violate Joshua DeShaney’s rights under the Due process Clause of the Fourteenth Amendment “by failing to provide him with adequate protection against his father’s violence”?

Holding: No

1.“Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” The Due Process Clauses (5th and 14th) “confer no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests of which the government itself may ot deprive the individual . . .”
2.The “Estelle-Youngberg analysis” is not applicable in this case because Joshua had no “special relationship” with the state that might entitle him to due process protection since he was not in the custody of the state.
3.State of Wisconsin might create a new  tort law, or there may be existing tort law by which Joshua might hold the state liable, but he may not use the Constitution

For review of book on DeShaney, click HERE

For Time magazine article on DeShaney, click HERE

For article on Justice Elena Kagan and the DeShaney case, click HERE


McCulloch v. Maryland (1819)

1.Does Congress have power to incorporate a bank?
2.May a state tax the bank?

Holding: Yes, No

1.Necessary and Proper clause
2.Supremacy clause

Powell v. McCormack (1969)


1. Is Speech and Debate Clause (Art 1, Sec 6) a bar to litigation, that is, does it protect McCormack et al from litigation? No

2. Is this case a political question since Art 1, Sec 5 gives the House the power to determine the qualifications of its members? No

3. Has the House "excluded" Powell, thus violating their own requirement for a 2/3 majority (Article 1, Section 5, Paragraph 2)? Yes

This case offers an example of interpreting the constitution by Original Intent.

 Adam Powell Unseated

Powell Speech on Black Power

Powell re-elected

Powell's sucessor Charlie Rangel under investigation

Rangel encounter

Rangel censured


U.S. Term Limits, Inc v. Thornton (1995)

Ad for Arkansas term limits

Incumbency Rates

Issue: Does Art 1, Section 5 prohibit Arkansas Amendment 73?

Holding: Yes


1.Does the 10th Amendment give the States the power to impose term limits? No

2. Does Art 1, Section 5, Clause 1 give Congress the exclusive right to decide this question? Yes

Note attention to Founding Intentions by reference to Convention, Fed Papers, Joseph Story

2."Democratic Principles" forbid term limits (p. 150) See Thomas dissent (first paragraph)

See Federalist Essay #59

Gravel v. United States (1972)


Does the Speech or Debate Clause protect Senator Mike Gravel’s aide, Leonard Rodberg, exempt from a grand jury investigation 

Holding: No

1.Is Gravel protected by the Speech and Debate clause (yes, but not in making arrangments with Beacon Press for publication)

Does Gravel’s aide enjoy protection?

Pentagon Papers

Mike Gravel reads from Pentagon Papers

Entry on Gravel

And what is Gravel doing now?

McGrain v. Daugherty (1927)

Issue: Must Mally Daugherty appear before the Senate select committee?

Holding: Yes

1.Does Congress have power to compel a private individual to appear before it or one of its committees and give testimony? (“We are of the opinion that the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function.”)

Is that power being appropriately used in this situation?

There Will Be Blood (2007)

And what is going on with the Teapot Dome Oilfields NOW?

Mr. Rogers testimony before congressional committee before United States Senate Subcommittee on Communications

Mr. Rogers episode

Watkins v. United States (1957)

Congress power of investigation v Due Process Clause of 5th and 14th Amendments

H.U.A.C. hearing on Hollywood

Watkins v. United States (1957)

Iran Contra Hearings 1987

Good Night and Good Luck (2005)

Schecter Poultry Corporation v. United States (1935)


Lawful delegation of legislative power?

Holding: Yes


Although the Constitution does give Congress the necessary flexibility to perform its function in laying down policies, etc., Congress cannot delegate its legislative authority to trade or industrial associations, etc.

Mistretta v. United States (1989)

Issue: Does the Sentencing Act of 1984 violate the non delegation doctrine of the Constitution

Holding: No

1.nondelegation doctrine
2.separation of powers
3.location of commission
4.composition of commission
5.presidential control

Note: See dissent from Scalia and cf to Scalia dissent in Morrison v Olsen (1988)

Immigration and Naturalization Service v. Chadha

Issue: Does the action of one House of Congress under Section 244(c)(2) (the legislative veto) violate the Constitution?

Holding: Yes

1.Presentment Clause

Article on Chadha:


Why has the Executive Branch grown in power vis a vis the Legislative Branch?
I.The Aims of the Founders (esp. see Federalist #70)

II. Constitutional Grants of Power and their Exercise

(e.g. legislative initiative, use of the veto, management of the budget)

III. Implied Powers (e.g. chief executive, “signing statements,” executive privilege, presidential immunity

IV. Prerogative power


Clinton v. City of New York (1998)

National Debt Clock

National Debt Clock on(real time)

Issue: violate presentment clause?

Holding: yes


  1. 1.justiciable?
  2. 2.Chadha precedent (“repeal of statutes, no less than enactment, must conform with Art. I”
  3. 3.silence = prohibition (Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes
  4. 4.“lockbox provision” irrelevant
  5. 5.analogy to import duties not relevant


Myers v. United States (1926)

Issue: Under the Constitution, may the President exercise the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

Holding: yes

1.Constitutional Convention
2.implied from power to appoint, necessary for execution of the laws. to require Senate approval for removal would inhibit the execution of the law
3. the Senate, after their role of “advice and consent,” is largely ignorant of performance of executive officers.
4.experience of the First Congress


Morrison v. Olson (1988)

Issue: Does Independent Counsel (Ethics in Government Act of 1978) violate Constitution?

Holding: No

1.Appointments Clause of the Constitution (Art. II, Section 2, cl 2)
2.Limitations of Article III (edited out of book)
3.Separation of Powers

Theodore Olsen:

Barbara Olsen:

Interview with T. Olson

Interrogation of Clinton

I did not …

I did not … (dance version)


United States v. Nixon (1974)



2.executive privilege?


yes (2), no (2)

Reasoning: is justiciable, well, because it is
2.exec. privilege is valid claim for proper operation of executive branch, but it must be balanced with needs of judiciary. In this case, material can be examined “in camera”

"All the President's Men" (from RPW book, from nursery rhyme)


Clinton v. Jones (1997)

TIME Magazine Cover: Paula Jones -- Mar. 23, 1998

Issue: Does Executive Privilege protect the President from civil suit while in office?

Holding: No

1.President does have valid claim to Executive Privilege
2.Does not protect him in this case--he can maintain his normal duties.


A variety of possibilities:

A citizen v. not a citizen?

A military tribunal or a civil court?

apprehended in the U.S. v. apprehended abroad?

Gitmo is U.S. territory or Gitmo is foreign soil?

IS IT a FIGHT against terrorism or a WAR against terrorism?

Conflicts over the constitutional distribution of power regarding foreign affaris and war involve the distribution of power:

among the branches of the federal government
2.between the levels of the federal system (primarily federal and state)
3.tension between the national government and individual rights

Popular opinion and the war on terror (the case of Jack Bauer and 24)

Jack Bauer (24) on torture:



Prize Cases (1863)

-preeminent role of Executive in recognizing and identifying war

The Gulf of Tonkin Resolution

McNamara on the Resolution HERE

The War Powers (1973)

US v. Curtiss-Wright Export Corporation (1936)

Has to do with the "Chaco War"

We had oil interests (Standard Oil)

Remarkable grant of power to executive in foreign policy.

—does not exceed delegation of Congressional power.

-power to conduct foreign policy comes from Crown (!) (cf. Locke on Prerogative)

-president is preeminent in exercise of foreign policy; Congress is subordinate. Cannot “limit” or “embarass” President

Missouri v. Holland (1920)

flyways large

Migratory Bird Treaty Act (1916) between U.S. and Great Britain (on behalf of Canada).

Issue: Are treaty and statute void as interference with he rights reserved to the States?


10th Amendment versus the following:

Article II, Sec 2 the power to make treaties

Article VI the supremacy clause

Article I, Sec. 8 necessary and proper clause

See last paragraph of decision:

But for the treaty and the statute "there might be no birds for any powers to deal with."

Ex parte Milligan (1866)

Issue: "Had this tribunal the legal power and authority to try and punish this man?"

Stated differently: Was Milligan (residing in Indiana) tried legally?

Note the importance the court puts on this case: “No graver question was every considered by this court . . ."


--Does Military Commission have legitimate judicial authority

--Does jurisdiction come from “laws and usages of war”?

--Did Milligan deserve trial by jury?

--Does martial law justify military commission?

Bottom line: Indiana was not a theater of war and the courts were open.

Korematsu v U.S. (1944)

Involved both an Executive Order (No. 9066) to establish internment camps and congressional legislation a month later to establish criminal penalties for violating the order.

But what was constitutional quesiton? Not specified. Opinion simply asks if Executive Order is “unconstitutional.” 

Speaks to “privledges” and “burdens” of citizenship!

"Come See The Paradise” (1990) See trailer HERE


"Congress reassessed the internment in the early 1980s, and in 1982 and 1983 issued a report called Personal Justice Denied which determined that military considerations had not required the removal of Japanese Americans and concluded that the Korematsu decision had been “overruled in the court of history.” In 1988, Congress issued a formal apology for the suffering and loss of property the internment order had caused, and in 1989 authorized reparations of $20,000 to each of the approximately 60,000 survivors of the internment camps. Many of those who were imprisoned had been farmers in California who were pressured to sell, at rock-bottom prices, land that is now worth millions of dollars. In 1998, President Clinton presented Fred Korematsu with the Presidential Medal of Freedom.”


The following case, and those that draw upon it in the 21st century, e.g. Hamdi v. Rumsfeld and Boumediene v. Bush, are complicated because they involve several bodies of law that must be balanced: the U.S. Constitution and various international laws and/or standards governing war such as the "Articles of War" and the "Geneva Conventions." They also rest upon fundamental distinctions regarding U.S. citizenship; and more technical distinctions such as the definition of "belligerents" and "lawful combatants" and "unlawful combatants." Consequently, we will only review over the significance of these cases superficially.

HERE is a homemade (or perhaps school assignment) video portraying Korematsu as a kind of folk hero (including musical score!)


Ex Parte Quirin (1942) 


8 German submariners landing in NY nd Fla

Main question: may they be tried by a military tribunal or are they eligible for civil court?

A very difficult decision for the court.

See last paragraph of decision: “Accordingly, we conclude . . ."

One of the saboteurs, Hans Haupt, was an American citizen.

Important passage from case:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

--Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

—It has been cited frequently in defense of issues surrounding Guantanamo Bay

—Masters Thesis about military tribunals

for more history read:

Rachlis, Eugene, They Came to Kill: The Story of Eight Nazi Saboteurs in America, New York: Random House, 1961.

Hamdi v. Rumsfeld (2004)

Involves American citizen 

HERE is an animated pro-Hamdi video

Boumediene v. Bush (2008)

Gitmo Decision

Issues: Do aliens held at GITMO have the privilege of habeus corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I Section 9, cl. 2


--is DTA adequate substitute for habeas corpus? 

--MCA unconsitutional suspension of habeas corpus.

See Scalia dissent!!

HERE is a Fox News summary of the B v B decision

Most media attention of Gitmo has been negative:

See HERE and HERE and HERE 

HERE is a more even-handed PBS special on GITMO



1.Background of Articles of Confederation (1777-1781)
2.Ambiguity of Federalist Papers (especially see paper 45:
3. First Congress (March 4, 1789, March 3, 1791)
4.Marshall Court (1801-1835)

Evolution of U.S. Federalism:
1.structure and relationship
2.“dual federalism”
3.early interpretation of Commerce Clause
4.state sovereign immunity
5.civil war amendments civil war amendments

Relevant Constitutional Amendments:
10th Amendment
11th Amendment (Chisholm v. Georgia)
12th, 13th, 14th Amendments
16th Amendment
17th Amendment

Relevant Legislation (not a complete list)
Civil Rights Acts of 1964,1968, 

IDEA (1975)
ADA 1990
ESEA 1965—part of Johnson’s “War on Poverty"
reauthorizations include No Child Left Behind (2001), Every Child Succeeds Act (2015)

Competitive Grant “Race to the Top” 4.3 billion dollars (2009)

"Patient Protection and Affordable Care Act" 2010


Baldwin v. Montana Fish and Game Commission (1978) (p. 329)
ISSUE: Does the Montana licensing scheme for the hunting of elk violate the Privileges and Immunity Clause of Art. IV para 2, of our Constitution.

(cf, marrige licenses, gay marriage, medical licenses, ot licences, drivers licenses, voting, running for political office)

--at least two distinctions of "privileges and immunities”: 
1. those necessary for the formation and unity of the nation; 
2. and, those that are not

--into which category does this case fall?

--Corfield v. Coryell (1825) is still valid (contrary to Baldwin's argument) (C v. C had to do with New Jersey restriction on oyster gathering.

--early cases tend to recognize a state's complete ownership of its wildlife

--later cases modify this saying that this right is not absolute 

--elk are a limited resource

--does the Montana restriction violate the Priviledges and Immunities clause in a fundamental way?

No, elk hunting is recreation, a sport. (compare Missouri v. Holland (1920))

And for your entertainment, learn how to hunt elk in Montana HERE



Dredd Scott v Taney (1857)

Among other things, raises the very important background question of the American Founder’s attitude toward slavery.

Dredd Scott living in Missourri (slavery allowed) with Dr. Emerson

Moved to Rock Island, Illinois when Emerson was transferred to different army base

Moved with Emerson to Fort Snelling, La. Territory (now Minnesota) (slavery prohibited)

Moved back to Missouri (slavery allowed) with Emerson 

sued in Missourri court, initially, won but lost on appeal in Missourri Supreme Court

"sold" to John Sanford (brother of the widow of the late Dr. Emerson) of NY so that he could bring friendly suit in federal court in Missourri

“friendly litigation"

Taney framed the ISSUE as:

Can Scott bring suit?


Scott lost in federal court, appealed to Supreme Court

--no, never intended to be a citizen

--and, btw, the Missourri Compromise is unconstitutional

Perhaps the most horrid passage ever written by SCOTUS:

"In the opinion  of the court, the legislation and histories of the times . . ."


Printz v United States (1997) (P. 348)

Whether federal provisions of Brady Handgun Violence Prevention Act mandating background checks is constitutional

"dual sovereignty", Federalist Paper #39

Necessary & Proper Clause v 10th Amendment

cf. Colorado marijuana legalization

James Brady interview HERE

Reagan assasination attempt HERE
Tennessee v. Lane (2004)

involved Title II of Americans with Disabilities Act of 1990, had to do with access to county courts

Interesting case dealing with the rather obscure 11th Amendment.

Raises interesting concept of “sovereign immunity"

Due Process of 14th Amendment v. 11th Amendment

Rehnquist in dissent argues that due process does not guarantee unassisted access.

Background on case HERE

More Background HERE

CNN article:



Gibbons v. Ogden (1824) (9 Wheat)

According to one scholar, this was Marshall's only popular opinion.

Issue: Does national navigation regulation overrule New York navigation regulation

1. Question of "strict constructionism" (warning to modern day strict constructionists)

2. Is "navigation" a part of "commerce" (Commerce Clause)

3. Federal law supreme over state law


Hammer v. Dagenhart (1916)

Does Commerce Clause authorize Federal Child Labor Act of 1916? 

Involved Roland and his  two sons  (incl. 14 yr old Reuben Dagenhart) working in a cotton mill in Charlotte NC. Roland sued agst the Act to keep his sons working 

See last paragraph of case (!)

Historical account (Smithsonian via Wickipedia) "Over and over, Hine saw children working sixty and seventy-hour weeks, by day and by night, often under hazardous conditions. He saw children caught in a cycle of poverty, often so ill-paid that they could not support a family on their earnings alone, and had to rely on their children's earnings as a supplement for the family's survival. He saw children growing up stunted mentally (illiterate or barely able to read because their jobs kept them out of school) and physically (from lack of fresh air, exercise, and time to relax and play). He saw countless children who had been injured and permanently disabled on the job; he knew that, in the cotton mills for example, children had accident rates three times those of adults."

PBS article on case HERE 


National Labor Relations Board v. Johnes & Laughlin Steel Corporation (1937)

"The Switch in Time That Saved Nine."

FDR's "court-packing" scheme"

Wickard v. Filburn (1942) 

shows the extent of the court's movement after NLRB (1937)

Is AAA (1938) overreach of Commerce Claus?

Compare National Federation of Independent Business v. Sibelius (2012)


Heart of Atlanta Motel v. United States (1964)

Is application of Civil Rights Act of 1964, prohibiting discrimination in "public accommodations" consistent with Equal Protection Clause of 14th Amendment and Commerce Clause?

Lester Maddox restaurant footage HERE

United States v. Lopez (1995)

Constitutionality of "Gun Free School Zones Act (1990)

Commerce Clause v. 10th Amendment
Gonzales v. Raich (2005)
California's Proposition 215 "Compassionate Use Act of 1996) (medical marijuana) v. Controlled Substances Act, enforced by DEA

Angel Raich website HERE 

Raich giving lecture HERE 

Raich's medical condition HERE 

The Latest from Raich HERE 

Colorado pro-marijuana add HERE

Update: recent Calif. SC case


South Dakota v. Dole (1987) (P. 423)

--21st Amendment

--(Tax and) Spend Clause

3 traditional areas of "reserve powers":

1. law enforcement

2. police power

3. education



The history of Indian law in the Supreme Court opens with the Marshall Trilogy—Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). The Trilogy, primarily authored by Chief Justice John Marshall, established federal primacy in Indian affairs, excluded state law from Indian country, and recognized tribal governance authority. Moreover, these cases established the place of Indian nations in the American dual sovereign structure that still governs today.

Cherokee Nation v. Georgia (1831) (p. 470)

--John Marshall case

--Is the Cherokee nation a "foreign state" (and, accordingly, can it bring suit under Article III, Section II

785px-Trails of Tears enTrail of tears sign

Worceser v.Georgia (1832) (p. 473)

—another John Marshall case

--Worcester was a missionary to Cherokees, violated restriction Ga. imposed on Cherokee nation requiring "whites" to obtain license before living with Cherokees

--imprisoned in Milledgeville (!) Information on the Georgia Penitentiary HERE

--argued that Ga. law was invalid because only U.S. has jurisdiction over Indian tribes according to the Constitution.

--Marshall asks whether the Cherokee nation enjoys sovereignty?

--yes, but another clever decision since it imposed nothing on the federal government, only state government, at the same time, recognizing "sovereignty" of Indians and thus special relationship with national gov’t.

—The opinion is most famous for its dicta, which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States.

--a hollow victory, since it was ignored by Andrew Jackson who considered Indians as no more than "inhabitants" of Georgia: "John Marshall has made his decision; now let him enforce it."

Letter to Ga Gov. Gilmore to Samuel Worcester

Letter from his Excellency George R. Gilmer, governor of the State of Georgia, to Rev. Samuel A Worcester, dated at 

Milledgeville, May 16th, 1831.]


It is a part of my official duty to cause all white persons residing within the territory of the State, occupied by the Cherokees to be removed therefrom, who refuse to take the oath to support the constitution and laws of the State

Information has been received of your continued residence within that territory, without complying with the requisites of the law . . .

That you may be under no mistake as to this matter, you are also informed the government of the United States does not recognise as its agents the missionaries acting under the direction of the American Board of Foreign Missions. Whatever may have been your conduct in opposing the humane policy of the general government, or exciting the Indians to oppose the jurisdiction of the State,

I am still desirous of giving you and all others similarly situated, an opportunity of avoiding the punishment which will certainly follow your further residence within the state contrary to its laws. You are therefore, advised to remove from the territory of Georgia, occupied by the Cherokees.

Col. Sanford, the commander of the Guard, will be requested to have this letter delivered to you, and to delay your arrest until you shall have had an opportunity of leaving the State.

Very respectfully, yours, &c. [et cetera] [added: (Signed)] 

[Signed] George R. Gilmer.

United States v Kagama (1886) (p. 474)

--deals with criminal law and Indian territory

--see last paragraphs: once gain, decided in context of a discussion of nature of the Indian Nations

Johnson v. McIntosh (1823) (p. 477)

--yet another Marshall case

—constitutional jurisprudence + political philosophy

--a staple case in law schools, one of Marshall's better known and most oft-quoted decisions

--can Native Americans sell their land to private citizens?

--fascinating theory of conquest and property: conquest gives ownership and sovereignty (Conquest Doctrine, or Radical Title.

--Marshall acknowledges that his opinion is contrary to the concept of "natural right."

McClanahan v. Arizona State Tax Commission (1973) (p. 481)

--state taxes

Public Law 280 (1953)
--federal government, state government, tribal government, criminal law

United States v. Lara ( 2004) (p. 486)

--note that the decisions are becoming more fractured on the court.

California v. Cabazon Band of Mission Indians (1987) (p. 496)
--California and gambling law

--can California regulate gambling on Indian tribal land?





Kelo v. City of New London

Lucas v. South Carolina Coastal Council (1992)

Eminent Domain in Chicago podcast from Cato Institute

Donald Trump and Eminent Domain HERE and HERE

Dolan v. City of Tigard (1994)

Congressional Testimony on “Regulatory Takings” HERE

Slaughter House Cases

As one resident put it, New Orleans in the mid-19th century was plagued by "intestines and portions of putrefied animal matter lodged [around the drinking pipes]" coming from local slaughterhouses whenever the tide from the Mississippi river was low. A mile and a half upstream from the city, a thousand butchers gutted over 300,000 animals per year. Animal entrails (known as offal), dung, blood, and urine were a part of New Orleans' drinking water, which was implicated in cholera outbreaks among the population. Between 1832 and 1869, the city of New Orleans suffered eleven cholera outbreaks.

Economic Due Process  (Chapter 12)

The Slaughter-House Cases (1873)

The Incorporation of the 14th Amendment see HERE

“priviledges and immunities”

PBS article on Slaughter-House Cases HERE

Saenz v. Rowe (1999) (p. 551)

Which states provide highest welfare benefits? HERE

Compare HOPE Scholarship

Does California residency requirements violate the “right to travel”?

Three components:

1) right to cross borders and be “welcome"

2) right to protection from priviledges and immunities 

3) right to change state citizenship

United States v. Carolene Products Company (1938)* (p. 570)

Footnote Four has evolved to recogize three levels of scrutiny when considering violations of the 14th Amendment Equal Protection Clause. This is primarily relevant when dealing with civil rights and miniority protections.

1. rational basis

2. intermediate scrutiny

3. strict scrutiny

Lochner v. New York (1905)

This case, and those related to it, provide another way to look at the evolution of the court, and especially it’s transition in the first half of the 20th century from more restrained jurisprudence to less restrained.

West Coast Hotel Company v. Parrish (1937)

Williamson v. Lee Optical Company (1955)*

State Farm Mutual Automobile Insurance Company v. Campbell (2003)

© Hank Edmondson 2012