1

Constitutional Law
Spring 2015
Professor Emily Berman
Class 1
Introduction: The Purpose(s) and
Meaning(s) of the Constitution

TODAYS TARGETS:

Tuesday,
January 20, 2015

Class Nuts and

Bolts
Why We Need a
Constitution
What the
Constitution Does
and Does Not Do

Class 1
Introduction: The Purpose and Meaning of the Constitution

Constitutional Law:
Course Materials
3

Brest,
Levinson,
6th ed.
(PCD)

Handouts
(http://www.law.
uh.edu/faculty/eb
erman/)

Constitutional Law:
Historical Periods in First Part of the Class
4

1.
2.
3.
4.

1787 1868:
The Founding Through the Civil War
1868 1937:
Reconstruction and the Lochner Era
1937 mid-1980s:
The New Deal & the Rights Revolution
Mid-1980s present:
The Rehnquist / Roberts Retrenchment

Constitutional Law:
Doctrinal Areas in Second Part of the Class
5

1.

2.

Government Powers:
Congressional powers
Executive powers
Federalism (states powers)
Individual Rights:
Equal protection
Substantive due process (privacy,
abortion, etc.)

Constitutional Law:
Goals for This Class
6

1)

Identify, create, attack & analyze various forms

of argument (textual, historical, structural, etc.)

2)

Become familiar with the structure & text of the

Constitution

3)

Learn particular constitutional doctrine

(commerce clause, equal protection, etc.)

4)

Appreciate the relationship between American

history & the evolution of constitutional doctrine

5)

Apply constitutional doctrine to novel problems

6)

Recognize & question your assumptions about

the fundamental nature of American government

Constitutional Law:
Expectations
7

Attendance / Class Participation

Come to every class prepared
If you cant be prepared please email me in advance
You must attend class regularly; if you must be absent,
please email me in advance
Each student may take up to 3 passes this semester
Evaluation
Based on final exam and class participation
Syllabus
I reserve the right to modify the syllabus
Feedback
Welcome at any time

Constitutional Law:
Laptop (Non)Policy
8

For one relevant study, see:

https://www.winona.edu/psychology/media/friedlaptopfinal.pdf

Constitutional Law:
Friend or Foe?
9

Constitutional law is fascinating

Explores the fundamental questions of who we are as a
nation and how we decide
It invites considerations from legal, historical, and
political viewpoints
Presents questions about the meaning of democracy
Constitutional law is challenging
There are rules, but fewer and less concrete than some
other subjects
This can be frustrating, but embrace the ambiguity!
Focus on understanding how to make the arguments in
favor of the various choices rather than finding
answers

What Is a Constitution?
10

Constitutional law always begins with the text of

the Constitution, but it wont always end there.

Art. I, 8:
Authorizes Congress
to create an army
and navy, but says
nothing about an
air force.
Is the Air Force
unconstitutional?

PREAMBLE TO THE U.S. CONSTITUTION

11

We the People of the United States, in

Order to form a more perfect Union,
establish Justice, insure domestic
Tranquility, provide for the common
defence, promote the general Welfare, and
secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish
this Constitution for the United States of
America.

The Articles of Confederation:

Key Provisions

12

[Art. 2] States retained their sovereignty - We the

undersigned Delegates of the States, not WTP of the US.
[Art. 3] Established a federation of states.
[Art. 5] Delegates appointed to Congress (who were subject
to recall by the states), but no executive or federal judiciary
[Art. 6] Limitations on the states only with respect to
foreign relations, war, and treaties.
[Art. 8] The states had to levy taxes to fill the U.S. treasury.
No federal power to tax.
[Art. 9] Congress had limited powers, and engaging in war,
forming treaties, & coining or borrowing money, required
the agreement of 9 states.
[Art. 13] required unanimity to amend the Articles.

The United States Constitution:

Key Compromises
13

The Connecticut Plan (Great Compromise):

Bicameral legislature, with un-alterable equal
suffrage in the Senate and apportioned
representation in the House of Representatives.
The Three-Fifths Compromise:
Slaves would count as 3/5 of a person for taxes
and for the apportionment of congressional seats
and electoral votes.
The Madisonian Compromise:
Constitution would authorize, but not require,
the creation of lower federal courts.

14

The United States Constitution:

Structure
Preamble: We the People
Art. I:
Legislative Powers (Congress)
Art. II:
Executive Powers (POTUS)
Art. III: Judicial Power(s) and Independence
Art. IV: Federal Property, Territories, and States
Art. V:
Amendment process (and Entrenchment)
Art. VI: Federal Supremacy (and Federal Debts)
Art. VII: Ratification Procedure
Amends.: The Bill of Rights; Sovereign Immunity;
Reconstruction; Income Tax; Suffrage, etc.

Constitutional Law:
The Ratification Debates
15

Nine states must ratify the Constitution for it

to have effect
People must be convinced to vote for
ratification
The state ratification conventions (especially in
NY and VA) took on monumental significance
Central complaint about the new
Constitutions text centered around the fear
that it gave massive (and unchecked) implied
powers to the federal government

Constitutional Law:
The Ratification Debates
16

Federalists (pro strong federal government)

Alexander Hamilton
Favored strong central government
Saw no need for the bill of rights
Anti-Federalists (anti strong federal govt)
Thomas Jefferson & (eventually) Madison
Favored leaving more power to the states
Wanted a Bill of Rights to enumerate
individual rights
Post-ratification became the Republicans

The Federalists (Hamilton, Madison, & Jay)

17

18

Constitutional Law:
The Federalist Papers
Federalist
Goal:

No. 10

Solve the problem of

faction

Federalist
Goal:

No. 51

Limit the power of the

federal government
through structural checks

Constitutional Law:
Reading Questions for Class 2
19

1.

2.
3.
4.
5.

The first question in McCulloch is whether Congress has the

power to incorporate a national bank. Why is that first, and not
the (second) question of whether Maryland can tax such an
institution?
Why does Marshall conclude that Congress does have the power
to incorporate a national bank? What kind of arguments does he
make?
Why does Marshall devote so much of his opinion to a seemingly
abstract discussion of the significance of the facts that (1) we
have a Constitution; and (2) it was ratified by the People?
What does Marshall mean when he says that it is a constitution
we are expounding?
Why is there such criticism of Marshalls opinion? Why is
McCulloch so significant, to both its supporters and detractors?

Constitutional Law
Spring 2015
Professor Emily Berman
Class 2
McCulloch v. Maryland

Todays Targets:

Wednesday,
January 21, 2015

Introduce some broad

themes of the class as seen
through McCulloch
Forms of constitutional
argumentation
Structure of federal
government
Nature of U.S.
sovereignty
Class 2
McCulloch v. Maryland

Constitutional Law:
Recap

Constitution drafted to address flaws in the

Articles of Confederation and includes
many compromises.
Two Camps Emerged

(Madison switched after the Constitution was ratified)

JEFFERSON

Constitutional Law:

Fundamental Structural Features of the Constitution

Separation of Powers
Three

Branches

Federalism

Federal
power
State
power

Designed to combat faction,

and harness mans natural ambition as a
check against abuses of power.

Constitutional Law:
The Constitution was . . .

The result of political compromise, shaped by

political & economic pressures of the times.
Left vague in spots because not even the
Framers could agree on what it should say.
Note: Many things we take for granted today
were truly up-for-grabs i.e., whether the Court
could invalidate legislation, who would have
the last word on constitutional interpretation,
etc. Did we get it right?

Case Study:
The Bank of the United States

Pro-Bank Arguments

SecTreasury A. Hamilton

Anti-Bank Arguments

Rep. James Madison

AG Edmund Randolph
SecState Thomas Jefferson

Constitutional Law:
Better Know a Justice: John Marshall

Fourth Chief Justice (1801-35)

Longest-Serving Chief Justice
(and 4th-longest tenure ever)
Read law @ William & Mary
From Germantown, Virginia
Ardent Federalist
Moved Court toward practice
of unified, majority opinions
Wrote for the Court in almost all of the significant
cases decided during his tenure

Constitutional Law:
The Constitutionality of the Bank in 1819

Marshall used McCulloch to discuss major points

of disagreement between Federalists and AntiFederalists/Republicans.

McCulloch presented (at least) 2 Questions:

1. Whether Congress has the power to create the
Bank (i.e. What is the Scope of the Necessary
and Proper Clause?)
2. Whether Maryland has the power to tax the
Bank (i.e. Do states have the power to tax
federal institutions?)

Constitutional Law:
The Constitutionality of the Bank in 1819

Marshall used McCulloch to discuss major points

of disagreement between Federalists and AntiFederalists/Republicans.

McCulloch presented (at least) 2 Questions:

1. Yes, Congress does have the power to create
the Bank

2.

No, Maryland does NOT have the power to

tax the Bank

3.

What is the nature of U.S. sovereignty?

Constitutional Law:
McCulloch: Questions Presented

1. Whether Congress has the power to

create the Bank (i.e., What is the Scope
of the Necessary and Proper Clause?)
2. Whether Maryland has the power to
Tax the Bank (i.e., Do states have the
power to tax federal institutions?)
3. What is the nature of U.S. Sovereignty?

Constitutional Law:
McCulloch: Questions Presented

1. Whether Congress has the power to

create the Bank (i.e., What is the Scope
of the Necessary and Proper Clause?)
2. Whether Maryland has the power to
Tax the Bank (i.e., Do states have the
power to tax federal institutions?)
3. What is the nature of U.S. Sovereignty?

Constitutional Law:
McCulloch: The Necessary & Proper Clause

Chief Justice Marshalls famous bottom

line ( 38, pg. 53):
Let the end be legitimate, let it be
within the scope of the constitution, and
all means which are appropriate, which
are plainly adapted to that end, which
are not prohibited, but consist with the
letter and spirit of the constitution, are
constitutional.

Constitutional Law:
McCulloch: Interpreting the Constitution

Modalities / Methodologies (pp. 57-63):

1. Appeals to / Construction of Text
2. Constitutional Structure
3. Prudential Considerations
4. History
5. Precedent
6. National (or Narrative) Ethos

Constitutional Law:
McCulloch: Questions Presented

1. Whether Congress has the power to

create the Bank (i.e., What is the Scope
of the Necessary and Proper Clause?)
2. Whether Maryland has the power to
Tax the Bank (i.e., Do states have the
power to tax federal institutions?)
3. What is the nature of U.S. Sovereignty?

Constitutional Law:
Reading Questions for Class 3
1.

2.

3.
4.

What is the actual technical issue in Marbury v. Madison? Who is William

Marbury, and what does he want? As youre considering this, try to keep
all of the facts in mind: Who should have signed (and delivered) William
Marburys commission to him? [Hint: Why is James Madison the
defendant? Who was Madisons predecessor?] How does that influence
your view of the decision?
Look carefully at the footnote to 4 on page 122. Arent the authors right
that Marshall picked a bizarre way to decide the questions presented in
Marbury? If he really believes that 13 of the Judiciary Act was
unconstitutional, and that the Court therefore did not have jurisdiction,
why would he need to discuss any of the other stuff?
How, according to Marshall, did 13 conflict with the Constitution? Is
he right, or can you make arguments that section 13 is constitutional?
Also pay attention to note 2 on pp. 135-36. In your view, does judicial
review = judicial supremacy? Does Marbury provide an answer to this
question? What are some other possibilities?

Constitutional Law
Spring 2015
Professor Emily Berman
Class 3
The Marshall Court and Judicial Review

Todays Targets:

Recap McCulloch v.
Maryland discussion
Marbury v. Madison (1803)

Thursday,
January 22, 2015

What the heck is this case

about? - The Election of
1800
Chief Justice Marshalls
opinion - Political
Masterstroke or (another)
act of Judicial Activism?
Class 3
Marbury v. Madison

Constitutional Law:
McCulloch: Interpretive Considerations
3

Modalities / Methodologies:
1. Appeals to / Construction of Text
2. Constitutional Structure
3. Prudential Considerations
4. History
5. Precedent
6. National (or Narrative) Ethos

Constitutional Law:
The Constitutionality of the Bank in 1819
4

By 1819, all sides (of the fed govt) recognized the

need for the Bank.
McCulloch presented (at least) 2 Questions:
1. Whether Congress has the power to create the
Bank (i.e. What is the Scope of the Necessary and
Proper Clause?)
2. Whether Maryland has the power to Tax the
Bank (i.e. Do states have the power to tax federal
institutions?)
3. What is the nature of U.S. Sovereignty? (i.e. Does
U.S. sovereignty lie with the states? the people? the
federal government? some combination?)

Constitutional Law:
McCulloch: The Sovereignty Question
5

10-11: [W]hen . . . it was deemed necessary to

change this alliance into an effective government,
possessing great and sovereign powers, and acting
directly on the people, the necessity of referring it
to the people, and of deriving its powers directly
from them, was felt and acknowledged by all. The
government of the Union, then . . ., is, emphatically
and truly, a government of the people. In form,
and in substance, it emanates from them. Its
powers are granted by them, and are to be
exercised directly on them, and for their benefit.

Constitutional Law:
McCulloch: The Necessary & Proper Clause
6

U.S. Const. art. I, 8, cl. 18:

The Congress shall have Power . . . To make
all Laws which shall be necessary and proper
for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer
thereof.

Constitutional Law:
McCulloch: The Necessary & Proper Clause
7

38 (pg. 53): [W]e think the sound

construction of the constitution must allow to
the national legislature that discretion, with
respect to the means by which the powers it
confers are to be carried into execution, which
will enable that body to perform the high
duties assigned to it, in the manner most
beneficial to the people.
In other words: Congress has implied as
well as explicitly assigned powers.

Constitutional Law:
McCulloch: The Necessary & Proper Clause
8

Chief Justice Marshalls famous bottom

line:

38 (pg. 53): Let the end be legitimate, let it

be within the scope of the constitution, and all
means which are appropriate, which are
plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit
of the constitution, are constitutional.

Constitutional Law:
McCulloch: The Taxation Question
9

71 (pg. 72): [W]hen a state taxes the operations

of the government of the United States, it acts
upon institutions created, not by their own
constituents, but by people over whom they claim
no control. . . . The difference is that . . . between
the action of the whole on a part, and the action of
a part on the whole.
Translation: If action is taken by a state, only the
citizens of that state have a say in what the action
is. That minority should not be able to impose its
will on the entire nation.

Constitutional Law:
The Segue to Marbury and Judicial Review
10

42 (p. 54): Should Congress, in the execution of

its powers, adopt measures which are prohibited
by the constitution; or should congress, under the
pretext of executing its powers, pass laws for the
accomplishment of objects not entrusted to the
government; it would become the painful duty of
this tribunal . . . to say, that such an act was not
the law of the land.
If McCulloch is not such a case, why does Marshall
include this statement?

Constitutional Law:
Early Chief Justices: Jay, Rutledge, Ellsworth
11

John Jay

(1789-1795)
From

N.Y.
Co-authored
The Federalist
Resigned to
become Gov.

John
Rutledge

(1795)
From S.C.
Assoc. Justice
(1789-1791)
Resigned to go
to S.C. Sup. Ct.

Oliver
Ellsworth

(1796-1800)
From

Conn.
Pushed for
United States
in Constitution

Resigned after 4 yrs.

Constitutional Law:
The Supreme Court from 1789 to 1801
12

Court initially included six Justices.

C.J. Jay resigned to become Governor of N.Y.
Justice Rutledge had left to become C.J. of the
South Carolina Court of Common Pleas.
The Courts work is seen as more onerous than
important (thanks to circuit-riding).
Opinions were usually issued seriatim.
Only major decision is Chisholm v. Georgia
(1793), which prompts the 11th Amendment.

Constitutional Law:
Election of 1800
13

Electoral

Math:
Electoral ballot tie between Burr and Jefferson
House deadlocks on first 35 ballots; rumors of
Federalist attempts to steal election abound;
militias put on alert
On 36th ballot, Jefferson was finally elected, ten
states to four (with two evenly divided)
Revolution of 1800: Federalists ejected from the
White House & the congressional majority
Note: First time in modern history political leaders
were removed from office via popular election

Constitutional Law:
Election of 1800: Aftermath
14

Feb. 13, 1801:

Lame-duck Federalist Congress enacts

Judiciary Act of 1801; abolishes circuit
riding; establishes new circuit courts
(thereby creating dozens of new
judgeships); reduces SC from 6 to 5 so
Jefferson wouldnt get to appoint anyone.

Mar. 3, 1801:

Pres. Adams and SecState/SC Justice

Marshall literally stay up all night signing
commissions for the midnight judges
nominated and confirmed under the
Judiciary Act of 1801.

Mar. 4, 1801:

Jefferson inaugurated as 3rd U.S. President.

Constitutional Law:
Election of 1800: Aftermath
15

Mar. 8, 1802:

The now-Jeffersonian Congress repeals

the Judiciary Act of 1801s creation of 16
circuit judges (the Repeal Act).

Apr. 29, 1802:

Congress enacts Judiciary Act of 1802; reestablishes circuit riding; eliminates

Supreme Courts 1802 Term (by shifting in
April from Dec. Term to February Term).

February 1803: Arguments / Decisions in Marbury and

Stuart v. Laird.

Constitutional Law:
Stuart v. Laird (1803)
16

Question: Whether the repeal of the Judiciary Act of

1801 is unconstitutional.
Court:
Evades the difficult constitutional questions
regarding the life tenure provision of Article III.
Upholds the challenge to allowing Supreme Court
justices to ride circuit based on historical precedent.
Why would the courts uphold the repeal of the 1801
Judiciary Act if they doubted its constitutionality?

Constitutional Law:
Marbury v. Madison (1803)
17

D.C. Justice of
the Peace
William
Marbury

U.S. Secretary of State

James Madison

Constitutional Law:
Marbury v. Madison (1803): The Facts
18

John
Adams
Outgoing
President
Appointed
Marshall
Chief
Justice

John
Marshall
Adams
outgoing
Secretary
of State
Incoming
Chief
Justice of
SCOTUS

Thomas
Jefferson
Incoming
President
William
Marbury

James
Madison
Incoming
Secretary
of State

Appointed Justice of the

Peace by Adams

Constitutional Law:
Imagining Alito v. Clinton
19

John Adas
Outgoing
President
Appointed
Condi Rice
Chief
Justice????

John
Marshall
Bushs
Secretary
of State

Incoming
President

Samuel Alito appointed

to the bench by George
W. Bush

Incoming
Secretary
of State

Constitutional Law:
Marbury: What is Mandamus?
20

An extreme remedy
Order to a government official to perform a
clear legal duty.
Requires . . .
A right in the Plaintiff
A duty in the Defendant
A lack of adequate alternative remedies

Constitutional Law:
Marbury: Marshalls Three (Four?) Questions
21

1)
2)
3)
4)

Does William Marbury have a right to his

commission as a Justice of the Peace?
If so, is he entitled to a remedy?
If so, can the Supreme Court provide that
remedy?
(Implicitly added by Marshall):
If Congress has unconstitutionally given the
Supreme Court the power to provide Marbury
with a remedy, does the Court have the power
to invalidate that statute?

Constitutional Law:
Marbury: The First Question
22

Marburys right to the position comes from

an Act of Congress.
All official acts necessary to give Marbury
the position have been completed, except
actually delivering the completed commission to
Marbury.

Has the right vested?

Constitutional Law:
Marbury: The First Question
23

Some point of time must be taken when the

power of the executive over an officer, not
removable at his will, must cease. That point of
time must be when the constitutional power of
appointment has been exercised. And this power
has been exercised when the last act, required from the
person possessing the power, has been performed. This
last act is the signature of the commission. ( 8)
Translation: The right to an office vests when the
person with the power of appointment completes
his/her required actions.

Constitutional Law:
Marbury: The Second Question ( 19-20)
24

Q: If [the laws furnish no remedy for the

violation of a vested legal right, it must be
because of] the peculiar character of the case. It
behooves us then to enquire whether there be in
its composition any ingredient which shall . . .
exclude the injured party from legal redress.
A: [W]hether the legality of an act of the head of
a department be examinable in a court of justice
or not, must always depend on the nature of that
act.

Constitutional Law:
Marbury: The Second Question ( 21)
25

Two types of executive power

Discretionary: Political acts,
unreviewable in the courts, entirely up to
the executive to do as s/he likes,
reversible at will.

Creation of a right: Judicially enforceable,

subject to rules and limits, courts may
inquire into whether the rules have been
complied with, executive must follow the
rules.

Constitutional Law:
Marbury: 13 of the Judiciary Act of 1789
26

. . . . The Supreme Court . . . 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.

Constitutional Law:
Marbury: Article 3, Section 2, Clause 2
27

Original Jurisdiction: In all cases affecting

Ambassadors, other public Ministers, and
Consuls, and those in which a State shall be a
party.
Appellate Jurisdiction: In all the other Cases
before mentioned, . . . with such Exceptions,
and under such Regulations as the Congress
shall make.

Constitutional Law:
Marbury: The Supreme Courts Jurisdiction
28

Issuing the writ in this case would be an act of

original JX (Marshall concludes in 41).
The language of section 13 grants the Court JX
to issue writs of mandamus to persons
holding office, under the authority of the
United States.
Court: The authority [given to the Court by
Section 13] to issue writs of mandamus to
public officers, appears not to be warranted by
the Constitution. (41)

Constitutional Law:
Marbury: The Supreme Courts Jurisdiction
29

Judiciary Act 13 : Gives the Supreme Court the

authority to issue writs of mandamus to persons
holding office under the authority of the US.
Constitution, Art. III: Limits Supreme Court
authority to issue writs of mandamus to exercise
of its appellate jurisdiction.
Court (41): Because issuing a writ of mandamus
to an officer . . . is in effect . . . to sustain an
original action, the Judiciary Act purports to
expand the SCs original jurisdiction.

Constitutional Law:
Marbury: The Third Question
30

( 34): If it had been intended to leave it in the

discretion of the legislature to apportion the
judicial power between the supreme and inferior
courts according to the will of that body, it would
certainly have been useless to have proceeded
further than to have defined the judicial power,
and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage,
is entirely without meaning, if such is to be the
construction.
Expressio unius est exclusio alterius.

Constitutional Law:
Marbury: The Fourth Question
31

The authority, therefore, given to the supreme

court, by the act establishing the judicial courts
of the United States, to issue writs of
mandamus to public officers, appears not to be
warranted by the constitution; and it becomes
necessary to enquire whether a jurisdiction, so
conferred, can be exercised. ( 42)

Constitutional Law:
Marbury: The Fourth Question
32

It is emphatically the province and duty of the

judicial department to say what the law is. ( 52)
If then the courts are to regard the constitution;
and the constitution is superior to any ordinary act
of the legislature; the constitution, and not such
ordinary act, must govern the case to which they
both apply. ( 54)
[A] law repugnant to the constitution is void; and
that courts, as well as other departments, are
bound by that instrument. ( 74)

Constitutional Law
Spring 2015
Professor Emily Berman
Class 4
Judicial Review & Limitations on the
Judicial Power

Todays Targets:

Recap/wrap up Marbury
discussion
The Countermajoritarian
Difficulty
Limits on Judicial Power?

Monday,
January 27, 2015

Jurisdiction
Case or Controversy
Congress

Class 4
Judicial Review and Limits on Judicial Power

Constitutional Law:
Marbury: The First Question
3

Some point of time must be taken when the

power of the executive over an officer, not
removable at his will, must cease. That point of
time must be when the constitutional power of
appointment has been exercised. And this
power has been exercised when the last act,
required from the person possessing the power,
has been performed. This last act is the signature
of the commission. ( 8)
A: Yes, Marbury has a right to the commission.

Constitutional Law:
Marbury: The Second Question
4

Two types of executive power

Discretionary: Political, unreviewable in the
courts, entirely up to the executive to do as
s/he likes, reversible at will.
Creation of a right: Judicially enforceable,
subject to rules and limits, courts may
inquire into whether the rules have been
complied with, executive must follow the
rules.
A: This case concerns the latter a judicially
enforceable right, not a discretionary decision.

Constitutional Law:
Marbury: The Third Question
5

The language of section 13 provides the Court

with jurisdiction to issue writs of mandamus to
persons holding office, under the authority of
the United States.
Issuing the writ in this case is an act of original
jurisdiction (Marshall concludes), so section 13
purports to expand the Courts original JX.
A: The statute gives the Court the authority to
issue the writ, but that conflicts with the
Constitutions limits on Supreme Court JX.

Constitutional Law:
Marbury: The Fourth Question
6

Marshall claims the power of Judicial Review:

It is emphatically the province and duty of the
judicial department to say what the law is. ( 52)
If then the courts are to regard the constitution;
and the constitution is superior to any ordinary act
of the legislature; the constitution, and not such
ordinary act, must govern the case to which they
both apply. ( 54)
A law repugnant to the constitution is void;
and . . . courts, as well as other departments, are
bound by that instrument. ( 74)

Constitutional Law:
Marbury: Expanding the SCs Original JX ( 34)
7

If it had been intended to leave it in the

discretion of the legislature to apportion the
judicial power between the supreme and inferior
courts according to the will of that body, it would
certainly have been useless to have proceeded
further than to have defined the judicial power. . .
The subsequent part of the section is mere
surplusage, is entirely without meaning, if such is
to be the construction.
Expressio unius est exclusio alterius.

Constitutional Law:
Marbury: The Countermajoritarian Difficulty
8

Marbury clearly establishes the principle of judicial

reviewi.e., that the federal courts have the power
to strike down as unconstitutional both the laws
passed by Congress and the enforcement of those
laws by the Executive Branch.
But note that this is giving the one arguably undemocratic branch (the judiciary) the power to undo
the will of the democratic majorityand that judicial
review is therefore necessarily anti-democratic.
What are the justifications for such a seeming contradiction
to our democratic system?

Constitutional Law:
The Justifications for Judicial Review
9

Settlement/Uniformity Theory
Supervising Inter- and Intra-governmental
Relations
Preserving Fundamental Values (Alexander
Bickel)
Protecting the Integrity of the Democratic
Process, Representation Reinforcement (John
Hart Ely)
Is Judicial Review Actually
Countermajoritarian? (Dahl & Graber)

Constitutional Law:
Does Judicial Review Judicial Supremacy?
10

Cooper v. Aaron (1958): [Marbury] declared the

basic principle that the federal judiciary is
supreme in the exposition of the law of the
Constitution. . . . It follows that the
interpretation of the [14A] enunciated by this
Court in the Brown case is the supreme law of the
land, and Art. VI of the Constitution makes it of
binding effect on the States . . . .

Constitutional Law:
Marbury v. Madisons Holding
11

What its cited for:

The Supreme Court has the power to
invalidate statutes that are inconsistent with
the Constitution AND the Supreme Court is
the final word on what the Constitution says.
What it actually holds:
The Supreme Court has the power to
invalidate statutes that are inconsistent with
the Constitution AND ??????

Constitutional Law:
Judicial Review vs. Judicial Supremacy
12

Does judicial review judicial supremacy?

Two Separate Issues:
Ex Post Supremacy:
Can the other branches of the federal
government and/or the states disregard or
otherwise overrule Supreme Court decisions
with which they disagree?
Ex Ante Supremacy:
Are there legal questions that the courts are (or
can be) precluded from answering in the first
place, by Congress or by the Constitution?

Constitutional Law:
From Marbury to Justiciability Doctrine
13

[T]his Court will not take jurisdiction if it

should not: but it is equally true, that it must
take jurisdiction if it should. The judiciary
cannot, as the legislature may, avoid a measure
because it approaches the confines of the
constitution. . . . We have no more right to
decline the exercise of jurisdiction which is given,
than to usurp that which is not given. The one
or the other would be treason to the
constitution.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.)

Constitutional Law:
Article 3, Section 2, Clause 2
14

The Court cannot expand the jurisdictional

categories laid out in the Constitution

Original Jurisdiction: In all cases affecting

Ambassadors, other public Ministers, and
Consuls, and those in which a State shall be a
party.
Appellate Jurisdiction: In all the other Cases
before mentioned, . . . with such Exceptions,
and under such Regulations as the Congress
shall make.

Constitutional Law:
The Case-or-Controversy Requirement
15

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made,
or which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public
Ministers and Consuls;--to all Cases of admiralty
and maritime Jurisdiction;--to Controversies to
which the United States shall be a Party;--to
Controversies between two or more States; [and
four more categories of Controversies].
1

U.S. CONST. art. III, 2, cl.

Constitutional Law:
The Case-or-Controversy Requirement
16

Article III of the Constitution limits the

judicial power of the United States to the
resolution of Cases and Controversies.
. . . No principle is more fundamental to the
judiciarys proper role in our system of
government than the constitutional limitation
of federal-court jurisdiction to actual cases or
controversies.
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98 (2007)
(internal quotation marks omitted)

Constitutional Law:
The Case-or-Controversy Requirement
17

Supreme Courts Self-Imposed Limits:

Bar

on Advisory Opinions: There must be an

actual case or controversy.

Mootness:
Ripeness:
Standing:

Controversy has disappeared.

Controversy has not yet developed.

Plaintiffs have suffered no injury, or

the defendant did not cause the injury, or the
relief sought will not cure the injury.

Constitutional Law:
The Rule for Article III Standing
18

The Court has held that s must allege:

(1) Personal

injury [injury in fact]; that is

(2) Fairly traceable to the defendants allegedly
unlawful conduct [causation]; and that is
(3) Likely to be redressed by the requested relief
[redressability].

In most cases, standing doctrine isnt controversial.

But there are times when it raises important
questions.

Constitutional Law:
The Case-or-Controversy Requirement
19

Standing asks whether the right plaintiff is

bringing the lawsuit against the right
defendant, and also asks whether the
lawsuit is actually capable of providing the
plaintiff with the relief they seek.
Mootness and ripeness ask whether its the
right time for the suiti.e., whether the
claim has not yet ripened, or whether relief
is no longer necessary or available.

Constitutional Law:
The Political Question Doctrine
20

The

political question doctrine

presupposes, per Marbury, that there are
some controversies that courts are just not
well-suited to resolveusually either
because the Constitution commits
the decision-making authority to someone
else, or because there are no judicially
manageable standards that would enable
courts to resolve the underlying dispute.

Constitutional Law:
PQD: Textually Demonstrable Commitments
21

Consider Al-Aulaqi v. Obama, 727 F. Supp. 2d 1

(D.D.C. 2010):
The D.C. District Court dismissed as nonjusticiable a
challenge to the Presidents power to target U.S. citizens
with lethal force (i.e., drone strikes).
[A] determination as to whether drastic measures
should be taken in matters of foreign policy and
national security is not the stuff of adjudication, but
of policymaking. Because decision-making in the
realm of military and foreign affairs is textually
committed to the political branches . . . the Court
finds that the PQD bars judicial resolution of this case.

Constitutional Law:
PQD: No Judicially Manageable Standards
22

Consider Vieth v. Jubelirer, (2004):

The Supreme Court dismissed as nonjusticiable a

challenge to Pennsylvanias congressional
redistricting plan as too politically motivated.
[N]o judicially discernible and manageable
standards for adjudicating political
gerrymandering claims have emerged. Lacking
them, we must conclude that political
gerrymandering claims are nonjusticiable.

Constitutional Law:
23

This is as far as we got in class today (January 27).

Well discuss the remaining slides, most of which
are about Boumediene v. Bush, tomorrow.

Constitutional Law:
Congresss Power Over Federal Jurisdiction
24

Article III, 1 The Supreme Court:

[T]he 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 III, 2 The lower federal courts:
The judicial power of the United States, shall
be vested in one Supreme Court, and in such
inferior courts as the Congress may from time
to time ordain and establish.

Constitutional Law:
Congresss Power Over Federal Jurisdiction
25

This combination means:

(1) The Constitution gives Congress sweeping
authority over the Courts appellate JX.
(2) Congress did not have to establish any
lower federal courts.
But . . .
(1) Per Marbury, Supreme Courts original JX is
limited to a small class of cases; Congress
cant change that.

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
26

Two Competing Theories:

(1) Plenary Power: Congress has complete
power over federal jurisdiction, period.
(2) Limited Power: Congresss power over
federal jurisdiction isnt plenary; there are
limits.
Variation #1: External Restraints
Variation #2: Essential Functions
Variation #3: Mandatory Theory of Art. III

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
27

[I]t has become something of a time-honored

tradition for the Supreme Court and lower federal
courts to find that Congress did not intend to
preclude altogether judicial review of
constitutional claims in light of the serious
concerns that such preclusion would raise.
- Bartlett v. Bowen (D.C. Cir. 1986)

Result: Congress must make it explicitly clear

when they actually do want to preclude judicial
review of constitutional claims, or courts will
assume they did not.

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
28

Only twice has the Supreme Court invalidated

an Act of Congress for taking away federal JX:
United States v. Klein (1872)

Congress passes statute literally instructing the

Court how to rule in certain pending cases;
Court holds that Act violates sep. of powers.

Boumediene v. Bush (2008)

Congress passes act taking away federal JX over

Guantnamo habeas petitions and failing to
provide adequate alternative remedy; Court
holds that Act violates the Suspension Clause.

Constitutional Law:
Boumediene: The Suspension Clause
29

U.S. CONST. art. I, 9, cl. 2:

The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in
Cases of Rebellion or Invasion the public
Safety may require it.
So long as the Clause applies, and so long as
habeas has not been suspended, the Clause
appears to guarantee access to a judicial remedy
for those who claim their detention is unlawful.

Constitutional Law:
Boumediene v. Bush (2008)
30

Facts:
Hundreds of suspected terrorists detained at
Guantanamo Bay, Cuba filed petitions for writs
of habeas corpus to challenge the basis for their
detention.
None of the detainees is a U.S. citizen.
In 7 of the Military Commissions Act of 2006
(MCA), Congress explicitly strips the federal
courts of jurisdiction to hear detainees habeas
petitions.

Constitutional Law:
Better Know a Justice: Anthony M. Kennedy
31

b. 1936, Sacramento, Cal.

9th Circuit Judge (1975-88).
Associate Justice (1988-).
B.A., Stanford; J.D., Harvard
Generally viewed as Courts
swing vote since Justice
OConnor retired (2006).
Tends to write for majority
in high %age of high-profile
and/or politically divisive
cases.

Constitutional Law:
Boumediene v. Bush (2008)
32

Issue: Is 7 (the JX-stripping provision) of

the Military Commissions Act constitutional?
Holding: Kennedy, J., for 5-4 Court, says no.
His opinion has two central holdings:
(1) The Suspension Clause has full effect at
Guantnamo (and so applies to these cases).
(2) The MCA violates the Clause by precluding
habeas petitions without providing a
constitutionally adequate substitute.

Constitutional Law:

Boumediene: The Role of the Courts

33

Separation of Powers tool:

The Suspension Clause

provides a time-tested device,
the writ, to maintain the
delicate balance of
governance that is itself the
surest safeguard of liberty.
To hold the political branches
have the power to switch the
Constitution on or off at will . . .
Would permit a striking
anomaly in our tripartite
system of government.

Constitutional Law:
Boumediene: Justice Scalias Dissent
34

What drives todays decision is neither the

meaning of the Suspension Clause, nor the
principles of our precedents, but rather an
inflated notion of judicial supremacy. . . . Our
power to say what the law is is
circumscribed by the limits of our statutorily
and constitutionally conferred jurisdiction. . . .
. . . It is both irrational and arrogant to say that
the answer must be [that courts have the power
to review detainees cases], because otherwise
we would not be supreme.

Constitutional Law:
So Why is the Supreme Court Supreme?
35

[R]eversal by a higher court is not proof that

justice is thereby better done. There is no doubt
that if there were a super-Supreme Court, a
substantial proportion of our reversals . . .
would also be reversed. We are not final
because we are infallible, but we are
infallible only because we are final.
Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,
concurring)

Constitutional Law:
Another View on Judicial Supremacy
36

[O]n the . . . first day Im sworn in, I will issue

an executive order to the national security
apparatus that it will not enforce Boumediene
and it will regard it as null and void because it
is an absurd extension of the Supreme Court
into the Commander-in-Chiefs [constitutional
authority].
Newt Gingrich, Jan. 18, 2012 (as reported in The
Guardian)

Constitutional Law
Spring 2015
Professor Emily Berman
Class 5
Judicial Review & Judicial Supremacy

Todays Targets:

Recap/wrap up Limits on
the Judicial Power
Disagreeing With the
Supreme Court

Wednesday,
January 28, 2015

The Executive Branch

The States

Class 5
Judicial Review and Judicial Supremacy

Constitutional Law:
The Justifications for Judicial Review
3

Marshalls Justifications

Oath Clause

Supremacy Clause

Arising Under Jurisdiction

Dont let Congress be the judge of its own power

Pragmatic Justifications

Settlement/Uniformity & Supervising Inter- and

Intra-governmental Relations

Preserving Fundamental Values (Alexander Bickel)

Representation Reinforcement (John Hart Ely)

Question: Is judicial review actually countermajoritarian (or
any more countermajoritarian than the rest of government)?

Constitutional Law:
Judicial Review vs. Judicial Supremacy
4

Does judicial review judicial supremacy?

Two Separate Issues:
Ex Post Supremacy:
Can the other branches of the federal
government and/or the states disregard or
otherwise overrule Supreme Court decisions
with which they disagree?
Ex Ante Supremacy:
Are there legal questions that the courts are (or
can be) precluded from answering in the first
place, by Congress or by the Constitution?

Constitutional Law:
The Case-or-Controversy Requirement
5

Supreme Courts Self-Imposed Limits:

Bar on Advisory Opinions: There must be an actual
case or controversy.
Mootness: Controversy has disappeared.
Ripeness: Controversy has not yet developed.
Standing: Plaintiffs have suffered no injury, or the
defendant did not cause the injury, or the relief
sought will not cure the injury.
The Political Question Doctrine: Issues are
textually committed to another branch, or no
manageable standards.

Constitutional Law:
Congresss Power Over Federal Jurisdiction
6

Article III, 1 The Supreme Court:

[T]he 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 III, 2 The lower federal courts:
The judicial power of the United States, shall
be vested in one Supreme Court, and in such
inferior courts as the Congress may from time
to time ordain and establish.

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
7

Two Competing Theories:

(1) Plenary Power: Congress has complete
power over federal jurisdiction, period.
(2)

Limited Power: Congresss power over

federal jurisdiction has limits.
Variation #1: External Restraints
Variation #2: Undefined Essential Functions
Variation #3: Mandatory Theory of Art. III

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
8

[I]t has become something of a time-honored

tradition for the Supreme Court and lower federal
courts to find that Congress did not intend to
preclude altogether judicial review of
constitutional claims in light of the serious
concerns that such preclusion would raise.
- Bartlett v. Bowen (D.C. Cir. 1986)

Result: Congress must make it explicitly clear

when they actually do want to preclude judicial
review of constitutional claims, or courts will
assume they did not.

Constitutional Law:
Jurisdiction-Stripping and Judicial Power
9

Only twice has the Supreme Court invalidated

an Act of Congress for taking away federal JX:
United States v. Klein (1872)

Congress passed statute literally instructing the

Court how to rule in certain pending cases;
Court holds that Act violates sep. of powers.

Boumediene v. Bush (2008)

Congress passed statute stripping federal JX

over Guantnamo habeas petitions and failing
to provide adequate alternative remedy; Court
holds that Act violates the Suspension Clause.

Constitutional Law:
Boumediene: The Suspension Clause
10

U.S. CONST. art. I, 9, cl. 2:

The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may
require it.
So long as the Suspension Clause applies, and so
long as habeas has not been suspended, the Clause
appears to guarantee access to a judicial remedy
for those who claim their detention is unlawful.

Constitutional Law:
Boumediene v. Bush (2008)
11

Facts:
Non-citizen suspected
terrorists detained at
Guantnamo Bay, Cuba filed
petitions for writs of habeas
corpus to challenge the basis
for their detention.
Section 7 of the Military
Commissions Act of 2006
(MCA) explicitly strips the
federal courts of jx to hear
detainees habeas petitions.

Constitutional Law:
Better Know a Justice: Anthony M. Kennedy
12

b. 1936, Sacramento, Cal.

9th Circuit Judge (1975-88).
Associate Justice (1988-).
B.A., Stanford; J.D., Harvard
Generally viewed as Courts
swing vote since Justice
OConnor retired (2006).
Tends to write for majority
in high %age of high-profile
and/or politically divisive
cases.

Constitutional Law:
Boumediene v. Bush (2008)
13

Issue: Is 7 (the JX-stripping provision) of the

Military Commissions Act constitutional?
Holding: Kennedy, J., for 5-4 Court, says no:

The Suspension Clause has full effect at

Guantnamo (and so applies to these cases).
The MCA violates the Clause by precluding habeas
petitions without providing a constitutionally
adequate substitute.

Constitutional Law:

Boumediene: The Role of the Courts

14

Separation of Powers tool:

The Suspension Clause

provides a time-tested device,
the writ, to maintain the
delicate balance of governance
that is itself the surest
safeguard of liberty.
To hold the political branches
have the power to switch the
Constitution on or off at will . .
Would permit a striking
anomaly in our tripartite
system of government.

Constitutional Law:
Boumediene: Justice Scalias Dissent
15

What drives todays decision is neither the

meaning of the Suspension Clause, nor the
principles of our precedents, but rather an inflated
notion of judicial supremacy. . . . Our power to
say what the law is is circumscribed by the
limits of our statutorily and constitutionally
conferred jurisdiction. . . .
. . . It is both irrational and arrogant to say that the
answer must be [that courts have the power to
review detainees cases], because otherwise we
would not be supreme.

Constitutional Law:
So Why is the Supreme Court Supreme?
16

[R]eversal by a higher court is not proof that

justice is thereby better done. There is no doubt
that if there were a super-Supreme Court, a
substantial proportion of our reversals . . .
would also be reversed. We are not final
because we are infallible, but we are
infallible only because we are final.
Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,
concurring)

Constitutional Law:
Overruling / Ignoring the Supreme Court
17

Amending the Constitution:

Amendment proposed by 2/3 of both Houses
of Congress or 2/3 of the states call for a
constitutional convention.
Ratification requires agreement of 3/4 of states.
Requires significant supermajority e.,g., ERA:
States with 70+% of the nations population =
ratified.
States with 20% = approved in one House, but
not the other.
States with 10% = neither house approved.

Constitutional Law:
Overruling / Ignoring the Supreme Court
18

At least parts of four of the 17 post-Bill of Rights

amendments were enacted to reverse the Court:

The Eleventh Amendment (1798)

(sovereign immunity; overturned Chisholm v. Ga.)
The Fourteenth Amendment (1868)
(natural-born citizenship; overturned Dred Scott)
The Sixteenth Amendment (1913) (income tax)
(overturned Pollock v. Farmers Loan & Trust)
The Twenty-Sixth Amendment (1971)
(18-year-old vote; overturned Oregon v. Mitchell)

Constitutional Law:
Andrew Jacksons Veto Message
19

Precedent: Mere [historical] precedent is a

dangerous source of authority, and should not be
regarded as deciding questions of constitutional
power except where the acquiescence of the people and the
States can be considered as well-settled. (77-78)
Supreme Court decisions: The Congress, the
Executive, and the Court must each for itself be
guided by its own opinion of the Constitution. . . .
The opinion of the judges has no more authority over
Congress than the opinion of Congress has over the
judges, and on that point the President is
independent of both. (78)

Constitutional Law:
Another View on Judicial Supremacy
20

[O]n the . . . first day Im sworn in, I will issue

an executive order to the national security
apparatus that it will not enforce Boumediene
and it will regard it as null and void because it
is an absurd extension of the Supreme Court
into the Commander-in-Chiefs [constitutional
authority].
Newt Gingrich, Jan. 18, 2012 (as reported in The
Guardian)

Constitutional Law:

State Power to Disagree: Va. & Ky. Resolutions

21

The Kentucky Resolution

Nullification: [W]hensoever the general

government assumes undelegated powers, its acts
are unauthoritative, void, and of no force. (PCD
103)
The Virginia Report

Judicial Supremacy?: If the Supreme Court is to

decide in the last resort, this resort must necessarily
be deemed the last in relation to the authorities of the
other departments of the [federal] government, not in
relation to the rights of the states. (PCD 104-05)

Constitutional Law:

State Power to Disagree: Roper v. Simmons (2005)

22

U.S. CONST. amend. VIII: Excessive bail shall not

be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
Stanford v. Kentucky (1989): Held that the Eighth
Amendment does not prohibit execution of
individuals under the age of 18.
Roper v. Simmons (2005): Overrules Stanford;
evolving standards of decency reflect emerging
national and international consensus against
executing anyone under the age of 18.

Constitutional Law:
Alabama and Roper v. Simmons (2005)
23

Ex parte Adams (Ala. 2005): Six months after

Supreme Court decides Simmons, the Alabama
Supreme Court applies the decision and throws
out a death sentence for a defendant who was 17
years old at the time he committed his offense.
Justice Parkers Op-Ed: State supreme courts
may decline to follow bad U.S. Supreme Court
precedents because those decisions bind only the
parties to the particular case. . . . [S]tate supreme
court judges should not follow obviously wrong
decisions simply because they are precedents.

Constitutional Law:
Alabama and Roper v. Simmons (2005)
24

The Missouri Supreme Court, in the decision

that led to the U.S. Supreme Courts decision
in Simmons, had itself concluded that the time
had come to overrule Stanford (and therefore
effectively overruled a U.S. Supreme Court
decision).
If Parker is wrong, wasnt the Missouri Supreme
Court also wrong in Simmons? If not, whats
different?

Constitutional Law:
Judicial Supremacy Bottom Line
25

Jackson, J.: We are not final because we are infallible,

but we are infallible only because we are final.
So, judicial supremacy comes from the Supreme
Courts finalitythat it gets to go last.
But it also comes from the Courts legitimacythat
we the people are okay with it going last.
This has two major implications for our purposes:
(1) Constitutional law is largely what the SC says it is.
(2) The Court has to walk a fine line between acting as
the authoritative expositor of the Constitution and
preserving / protecting its legitimacy.

Constitutional Law:
Reading Questions for Class 6
26

1.

2.
3.

4.

Take Chief Justice Taneys opinion in Dred Scott seriously: What are the
actual holdings of the opinion? How does he reach his conclusion that slaves
are not citizens under the Constitution (hint: walk through note 2 on pp.
284-88). Do you find any of his arguments convincing (or at least more
convincing)? Which ones? Why? Does Dred Scott uphold the institution
of slavery? If not, what does it do, precisely?
What are the key points of Justice Curtiss famous dissent? Does Curtis
make the best arguments against Taneys opinion? What else might he
have said? Do you find Curtis convincing on his own terms?
Why does Taney strike down the Missouri Compromise? (Hint: check out
note 5 on pages 289-90). Why was this holding so important? Did Taneys
decision therefore accelerate the Civil War, or at least render it inevitable?
What does note 8 (pp. 291-92) say on this point?
It would be easy to dismiss Dred Scott as a terrible and backwards opinion
written by an admittedly pro-slavery Chief Justice. But given the text of the
Constitution as written, could Taney have come out differently? How?

Constitutional Law
Spring 2015
Professor Emily Berman
Class 6
The Road to Civil War

Todays Targets:

Recap/wrap up Judicial
Supremacy discussion
The Pre-War Era

Thursday,
January 29, 2015

Slavery and the

Constitution
Dred Scott

Class 6
The Road to Civil War

Constitutional Law:
Judicial Supremacy
3

Ex Ante Limits

Article III Case or Controversy requirement

(standing, mootness, ripeness, PQD, ban on advisory
opinions)

Congresss control over federal courts jurisdiction

(which is subject to some limits see, e.g., Boumediene)
Ex Post Limits

Constitutional amendments

Departmental theory of constitutional interpretation

Nullification

Efforts to overrule earlier cases

Constitutional Law:
Judicial Supremacy Bottom Line
4

Jackson, J.: We are not final because we are infallible,

but we are infallible only because we are final.
So, judicial supremacy comes from the Supreme
Courts finalitythat it gets to go last.
But it also comes from the Courts legitimacythat
we the people are okay with it going last.
This has two major implications for our purposes:
(1) Constitutional law is largely what the SC says it is.
(2) The Court has to walk a fine line between acting as
the authoritative expositor of the Constitution and
preserving / protecting its legitimacy.

Constitutional Law:
Better Know a Justice: Anthony M. Kennedy
5

b. 1936, Sacramento, Cal.

9th Circuit Judge (1975-88).
Associate Justice (1988-).
B.A., Stanford; J.D., Harvard
Generally viewed as Courts
swing vote since Justice
OConnor retired (2006).
Tends to write for majority
in high %age of high-profile
and/or politically divisive
cases.

Constitutional Law:
The Constitutions Quiet Period
6

As a general matter, the federal government just

didnt do all that much in the first 70 years to
restrict the rights of individuals.

In Barron v. City of Baltimore

(1833), the Supreme Court held
that Bill of Rights does not apply
to the states; state governments
are not subject to their limits.
Only the federal government
must respect them.

Constitutional Law:
Why Do We Care About Slavery Now?
7

Judicial Reviews Mixed Pedigree:

Judicial review is not only Brown v. Board of
Education, but also Dred Scott.
Elusiveness of Originalism:
The more you know about the evolution of the
country since the Founding, the more you realize
how difficult it is to find THE original meaning of
most constitutional provisions.
Implications for the Fourteenth Amendment:
Many contemporary constitutional questions ride
on what the 14A (which is a response to Dred Scott
and slavery) means.

Constitutional Law:
The Slavocratic Constitution
8

Direct Constitutional Protection for Slavery:

(1)

(2)
(3)

Art. I, 9, cl. 1: Congress may not prohibit the

Importation of Persons by the states until
1808.
Art. I, 3: 3/5 Compromise for representation
and taxation
Art. IV, 2, cl. 3 (Fugitive Slave Clause):

No person held to service or labour in one state . . .

escaping into another, shall . . . be discharged from
such service or labour, but shall be delivered up . . . [to]
the party to whom such service or labour may be due.

Constitutional Law:
The Slavocratic Constitution
9

Indirect Constitutional Protection for Slavery:

(1) Art. I, 8: Power to suppress insurrection
(2) Art. I, 9: Ban on congressional export taxes
(to prevent excessive taxation of products the
South produced with slave labor)
(3) Art. I, 3 & Art. II, 1: Structure of the Senate
and the Electoral College

Constitutional Law:
Slaves as %age of State Population 1790
10

New Hampshire: 157

South Carolina
Virginia

43.00%
39.14%

New York: 21,193

Georgia

35.45%

Rhode Island: 958

Maryland

32.23%

25.60% Connecticut: 2,648

North Carolina

Pennsylvania:
16.87% 3,707

Kentucky
Delaware

15.04%

New York

6.23%

New Jersey

6.20%

Rhode Island

1.39%

Connecticut

1.11%

Pennsylvania

0.85%

New Hampshire

0.11%

Vermont

0.02%

Delaware: 8,887

New Jersey: 11,423

Maryland: 103,036

Virginia: 292,627
North Carolina: 100,783
South Carolina: 107,094

Georgia: 29,264

Constitutional Law:
Slavery After 1808
11

Three primary (and related) battlegrounds over the

slavery question:
(1) The numerical balance between slave and free
states (for purposes of Senate representation);
(2) The question of whether there would/should be
slavery in the territories, and who should decide
(i.e., Congress or the territories themselves); and
(3) The extent to which free states were allowed to
protectand prevent the capture and return of
fugitive slaves.

Constitutional Law:
Slavery and the Antebellum Congress
12

The slave states were convinced, rightly or not,

that the free states would ban slavery as an
institution everywhere as soon as they obtained
enough power / representation in Congress.
On the other hand, the free states were obsessed
with confining slavery only to the original slave
states, and to prohibiting it everywhere else,
especially in the territories (free soil).

Constitutional Law:
Slavery and the Antebellum Congress
13

The Fugitive Slave Act of 1793: Made it a crime

to assist a fugitive slave; created procedures for
the return of fugitives (even in free states);
provided that fugitive slaves would be fugitives
for life.
The Missouri Compromise (1820): Provided for
the admission of Maine as a free state and
Missouri as a slave state, but otherwise
prohibited slavery in the Louisiana territory north
of 3630 (Missouris southern border).

Constitutional Law:
The Missouri Compromise
14

Constitutional Law:
Groves v. Slaughter (1841) (PCD 250)
15

Facts:
Mississippi forbade importing slaves for sale
in the state.
Anti-slavery states were using local law to
create barriers to slavery in their states.
Question: Is commerce in slaves interstate
commerce?
If so, it can be regulated by the federal
government.
Court: Dodges the question.

Constitutional Law:
Prigg v. Pennsylvania (1842)
16

PA Law:
Barred self-help in both the capture and
the removal of fugitive slaves.
Fugitive Slave Act of 1793:
Required slave owners to get a certificate
from a local magistrate before removing
alleged slaves from one state to another.

Constitutional Law:
Prigg v. Pennsylvania (1842)
17

Facts: Prigg was convicted by PA court for

kidnapping and selling into slavery a woman,
Margaret Morgan, who likely was not a fugitive
slave, and her two children, who assuredly
were not.

Question: Does PAs law, under which an

owner can be prosecuted for using self-help
to recapture an escaped slave, violate the FSC
or FSA?
Court: Yes. The PA law is unconstitutional.

Constitutional Law:
Justice Joseph Story
18

Appointed by Madison at age 32(!)

Served for 34 years (1811-45)
As significant as (if not more than)
Marshall with respect to the
development of American law
Wrote for Court in Martin (1816),
The Amistad (1841), & Swift (1842)
Author of most significant 19thcentury treatise on the U.S.
Constitution
Publicly anti-slavery

Constitutional Law:
Slavery and the Antebellum Congress
19

Kansas-Nebraska Act (1854):

Repealed Missouri Compromise.
Allows KS and NE territories to decide slavery
issue through popular sovereignty.
Pro- and anti-slavery people flooded KS in
order to influence the slavery vote, which led to
widespread violence.
The new Republican Party formed in opposition
to the Act & aimed to stop slaverys expansion.
The Democratic partys North/South coalition
shattered Lincoln elected in 1860.

Constitutional Law
Justice Roger Brooke Taney

Fifth Chief Justice (1836-64)

From Calvert County, Md.
First Roman Catholic Justice
Appointed by Pres. Jackson
Served as Attorney General
and Secretary of the Treasury
before being appointed to the
Court
Most famous for his opinion
for the majority in Dred Scott

Constitutional Law:
Dred Scott v. Sandford (1857)

Background: Scott is a slave

who travels with his owner
first to IL (a free state), and
then to MN (a free territory),
before voluntarily returning
to MO (a slave state). Scott
sues Sandford (his owner)
claiming that he is free.
Issue: Did Scott become a free
citizen by virtue of setting foot
in either Illinois or Minnesota?

Constitutional Law:
Dred Scott v. Sandford (1857)

The Citizenship Question:

Is Scott a citizen of MO within
the meaning of the Constitution?
The Free State Question:
Did Scott become free when he set
foot in a free state (Illinois)?
The Territory Question:
Did Scott become free when he set
foot in MN (Taney reframes as:
did Congress have the power to
prohibit slavery in the territories)?

Constitutional Law:
Dred Scott: The Citizenship Question

The only matter in issue before the court . . . Is

whether the descendants such of slaves, when
they shall be emancipated, or who are born of
parents who had becomes free before their birth,
are citizens of a States, in the sense in which the
word citizen is used in the Constitution of the
United States.
It becomes necessary, therefore, to determine
who were citizens of the several States when the
Constitution was adopted.

Constitutional Law:
Dred Scott: Advisory Opinion?

As with Marbury, Taney determines that the Court

lacks jurisdiction over the case, but goes on to
reach the merits of an issue (Congresss power to
abolish slavery in the territories) nevertheless.
Two questions:
(1) If he wants to reach the merits, why not
hold that Scott is a citizen?
(2) If his citizenship holding is sincere, why did
he reach out to strike down the Missouri
Compromise?

Constitutional Law:
Dred Scott: The Free State Question

Taney answered the second questionwhether

Scott became free when he set foot in a free
stateby relying on an earlier Supreme Court
decision (Strader v. Graham), that had already
settled the question, holding that the law of the
state from which the plaintiff travels (and to
which he returns) controls.

Constitutional Law:
Dred Scott: The Territory Question

Note that Taney does not frame this question in

the abstract as whether Congress can abolish
slavery in the territories (a power that might be
found in the text of the Public Lands Clause of
Article IV);
Rather, he frames it as whether Congress can
prohibit a citizen from taking their lawful
property from a state into a territory.
Court: When southerners bring slaves into free
territories, the government is taking their
property without due process of law.

Constitutional Law:
Slavery and the Antebellum Congress
27

Election of 1860:

Constitutional Law
Spring 2015
Professor Emily Berman
Class 7
The Civil War and the New Birth of
Freedom

Todays Targets:

Tuesday,
February 3, 2015

Finish Dred Scott discussion

Two weeks in where are
we?
President Lincoln Reacts to
Secession
The Prize Cases (1863)
Ex Parte Merryman (1861)
The Emancipation
Proclamation (1863)
Ex parte Milligan (1866)
Class 7
The Civil War

Constitutional Law:
Why are we reading this?
3

1)

2)

3)
4)

Cant understand the

development of the
Constitution and the country
without taking context into
account.
Notions of what constitutes a
persuasive argument can
change over time.
Think about what it means for
an opinion to be wrong.
What is todays Dred Scott?

Constitutional Law:
What do we need to know?
4

For now, focus on . . .

1) The underlying questions.
What does the Constitution mean? Who decides? Who should
decide?
2) What forces drive (or should drive) decision-making.
Text? History? Judges agendas? Public opinion?
3) What turns on the answers to these questions whats at
stake.
Scope of federal power? Success of a political/economic agenda?
4) What kinds of arguments people make.
Are some more persuasive than others? Why?
5) How and why do the answers to these questions change over
time?

Constitutional Law:
Multiple Bottom Lines
5

1. Overarching issues
Judicial review/judicial legitimacy/role of the court
Federal/state distribution of power
Institutional roles of courts, Congress, President
2. Era-by-era issues
Ebb and flow of dominant ideologies how does
constitutional change happen and what drives it?
3. Doctrine-by-doctrine issues
Evolution of particular constitutional provisions
Where does the law seem to be headed?
And, importantly: What are the arguments for &
against various approaches to these questions?

Constitutional Law:
Sample questions
6

1)

2)

3)

Why do Americans follow Supreme

Court decision with which they
disagree? Use cases and class
discussion to illustrate and support
your argument.
Which of the following opinions is
an example of an originalist
interpretation?
Marbury v. Madison
Dred Scott v. Sanford
McCulloch v. Maryland
Boumediene v. Bush
Traditional issue-spotter essays.

Constitutional Law:
Dred Scott v. Sandford (1857)
7

Background: Scott is a slave

who travels with his owner
first to IL (a free state), and
then to MN (a free territory),
before voluntarily returning
to MO (a slave state). Scott
sues Sandford (his owner)
claiming that he is free.
Issue: Did Scott become a free
citizen by virtue of setting foot
in either Illinois or Minnesota?

Constitutional Law:
Dred Scott v. Sandford (1857)
8

The Citizenship Question:

Is Scott a citizen of MO within
the meaning of the Constitution?
The Free State Question:
Did Scott become free when he set
foot in a free state (Illinois)?
The Territory Question:
Did Scott become free when he set
foot in MN (Taney reframes as:
did Congress have the power to
prohibit slavery in the territories)?

Constitutional Law:
Dred Scott: The Citizenship Question
9

Originalist interpretation: It becomes

necessary, therefore, to determine who were
citizens of the several States when the
Constitution was adopted.
Differentiates between State citizenship and
Federal citizenship.
Holding: Blacks were not considered part of the
political community at the time of the
Founding, and therefore can never be Federal
citizens.

Constitutional Law:
Dred Scott: Advisory Opinion?
10

As with Marbury, Taney determines that the Court

lacks jurisdiction over the case, but goes on to
reach the merits of an issue (Congresss power to
abolish slavery in the territories) nevertheless.
Two questions:
(1) If he wants to reach the merits, why not
hold that Scott is a citizen?
(2) If his citizenship holding is sincere, why did
he reach out to strike down the Missouri
Compromise?

Constitutional Law:
Dred Scott: The Free State Question
11

Taney answered the second questionwhether

Scott became free when he set foot in a free
stateby relying on an earlier Supreme Court
decision (Strader v. Graham), that had already
settled the question, holding that the law of the
state from which the plaintiff travels (and to
which he returns) controls.

Constitutional Law:
Dred Scott: The Territory Question
12

Note that Taney does not frame this question in

the abstract as whether Congress can abolish
slavery in the territories (a power that might be
found in the text of the Public Lands Clause of
Article IV);
Rather, he frames it as whether Congress can
prohibit a citizen from taking their lawful
property from a state into a territory.
Court: When southerners bring slaves into free
territories, the government is taking their
property without due process of law.

Constitutional Law:
Slavery and the Antebellum Congress
13

Election of 1860:

Constitutional Law:
The Prize Cases (1863)
14

Background: At outset of Civil War, Pres. Lincoln

imposes blockade of Southern ports. Owners of
seized ships sue to challenge blockade.
Issue: Did President Lincoln have the authority
unilaterally to order an act of war (the blockade)?
Holding: For 5-4 Court, Grier, J., says yes: President
cant declare war unilaterally, but he has the
inherent power to respond to hostilities once they
have been commenced by a foreign invader or a
state, along with the related statutory power to
suppress insurrections.

Constitutional Law:
The Prize Cases (1863) (PCD 318)
15

Whether the President in fulfilling his duties, as

Commander-in-chief, in suppressing an insurrection,
has met with such armed hostile resistance, and a civil
war of such alarming proportions as will compel him
to accord to them the character of belligerents, is a
question to be decided by him, and this Court must be
governed by the decisions and acts of the political
department of the Government to which this power
was entrusted. . . . The proclamation of a blockade is,
itself, official and conclusive evidence. . . that a state
of war existed.

Constitutional Law:
The Prize Cases (1863)
16

Nelson, J., dissenting: The Acts of 1795 and 1807

did not, and could not under the Constitution,
confer on the President the power of declaring war
against a State of this Union, or of deciding that war
existed . . . . Congress alone can determine whether
war exists or should be declared; and until they
have acted, no citizen of the State can be punished
in his person or property, unless he has committed
some offence against a law of Congress passed
before the act was committed, which made it a
crime, and defined the punishment. (319)

Constitutional Law:
Ex parte Merryman (C.C.D. Md. 1861)
17

U.S. CONST. art. I, 9, cl. 2: The Privilege of the Writ

of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public
Safety may require it.
While Congress is out of session at the outset of the
Civil War, President Lincoln authorizes General Scott
to suspend habeas on a military line between Philly
and D.C. (incl. Baltimore).
Union Army detains Merryman in Baltimore; he files
a writ of habeas corpus before Chief Justice Taney,
sitting as Circuit Justice for D. Md.

Constitutional Law:
Ex parte Merryman (C.C.D. Md. 1861)
18

Taney, C.J. : I had supposed it to be one of

those points of constitutional law upon which
there was no difference of opinion, and that it
was admitted on all hands, that the privilege of
the writ could not be suspended, except by act
of congress. (322)

Constitutional Law:
Responding to the Civil War
19

[A]re all the laws but one to go

unexecuted and the
Government itself go to pieces
lest that one be violated? Even
in such a case would not the
official oath be broken if
the Government should be
overthrown, when it was
believed that disregarding
the single law would tend to
preserve it? (324)

Constitutional Law:
Ex Parte Merryman (C.C.D. Md. 1861)
20

Now, it is insisted that Congress and not the

Executive is vested with this power. But the
Constitution itself is silent as to which, or who, is
to exercise the power; and as the provision was
plainly made for a dangerous emergency, it
cannot be believed the framers of the instrument
intended that in every case the danger should run
its course until Congress could be called together,
the very assembling of which might be prevented,
as was intended in this case, by the rebellion.
(324).

Constitutional Law:
The Emancipation Proclamation (1863)
21

I, Abraham Lincoln, President of the United

States, by virtue of the power in me vested as
Commander-in-Chief, of the Army and Navy of the
United States in time of actual armed rebellion
against the authority and government of the
United States, and as a fit and necessary war
measure for suppressing said rebellion, order that,
in those states currently in rebellion against the
United States, all persons held as slaves within
said designated States, and parts of States, are, and
henceforward shall be free. (325)

Constitutional Law:
The Gettysburg Address
22

Four score and seven years ago our fathers brought

forth on this continent a new nation, conceived in
liberty and dedicated to the proposition that all men
are created equal. Now we are engaged in a great
civil war, testing whether that nation or any nation
so conceived and so dedicated can long endure. . . . It
is for us the living, rather, to be dedicated here to the
unfinished work which they who fought here have
so nobly advanced. . . . [T] his nation under God
shall have a new birth of freedom, and that
government of the people, by the people, for the
people shall not perish from the earth. (332)

Constitutional Law:
Ex parte Milligan (1866)
23

Background: Milligan, a Confederate sympathizer,

is tried by a military commission for allegedly
planning to steal weapons (and free Confederate
soldiers) from Union POW camps.
Issue: Can Milligan be tried by a military, rather
than a civilian, court?
Holding: For unanimous Court, Davis, J., says no:
President Lincoln lacked the unilateral authority to
create military tribunals. But Chase, C.J., writes a
four-Justice concurrence.

Constitutional Law:
Ex parte Milligan (1866) (PCD 334)
24

Open Courts: As necessity creates the rule, so it

limits its duration; for, if this government is
continued after the courts are reinstated, it is a
gross usurpation of power. Martial rule can never
exist where the courts are open, and in the proper
and unobstructed exercise of their jurisdiction. It is
also confined to the locality of actual war.
Civilian Defendant: [N]o usages of war could
sanction a military trial there for any offence
whatever of a citizen in civil life, in nowise
connected with the military service.

Constitutional Law:
Ex parte Milligan (1866)
25

If, in foreign invasion or civil war, the courts are

actually closed, and it is impossible to administer
criminal justice according to law, then, on the
theatre of active military operations, where war
really prevails, there is a necessity to furnish a
substitute for the civil authority, thus
overthrown, to preserve the safety of the army
and society; and as no power is left but the
military, it is allowed to govern by martial rule
until the laws can have their free course. (334)

Constitutional Law:
Ex parte Milligan (1866)
26

Chase,

C.J., concurring:
[W] hen the nation is involved in war, and
some portions of the country are invaded, and
all are exposed to invasion, it is within the
power of Congress to determine in what states
or district such great and imminent public
danger exists as justifies the authorization of
military tribunals for the trial of crimes and
offences against the discipline or security of the
army or against the public safety. (336)

Constitutional Law:
Ex parte Milligan (1866)
27

Famous

Rights-Protection Language from

Milligan:
The

Constitution of the United States is

a law for rulers and people, equally in
war and in peace, and covers with the
shield of its protection all classes of
men, at all times, and under all
circumstances.

Constitutional Law:
The Civil Wars Quiet Revolution
28

The Civil War years witnessed a massive

broadening of Congresss role in local economic
and commercial regulation, e.g.:

Creation of the Department of Agriculture

Morrill Land-Grant Act
Authorization of the Pacific Railroad
The National Currency Act of 1863
The National Bank Act of 1864

Why? First, the war provided Congress with

necessity arguments. Second, the traditional
critics of federal power were missing.

Constitutional Law:
The Civil Wars Louder Revolution
29

The Thirteenth Amendment (1865): Neither

slavery nor involuntary servitude, except as a
punishment for crime where of the party shall
have been duly convicted, shall exist within the
United States, or any place subject to their
jurisdiction.
The Fifteenth Amendment (1870): The right of
citizens of the United States to vote shall not be
denied or abridged by the United States or by any
State on account of race, color, or previous
condition of servitude.

Constitutional Law:
The Civil Wars Louder Revolution
30

The Fourteenth Amendment, 1 (1868):

All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.

Constitutional Law
Spring 2015
Professor Emily Berman
Class 8
The Fourteenth Amendment:
Privileges or Immunities

Todays Targets:

Continue Civil War Materials

Reconstruction: A (Very Brief)

Historical Overview
The Fourteenth Amendment
The Slaughterhouse Cases (1873)

Wednesday,
February 4, 2015

The Emancipation Proclamation

Ex Parte Milligan

Justice Miller and Privileges or

Immunities
The Dissenters: Justices Field,
Bradley, & Swayne

Class 8
The Fourteenth Amendment Privileges or Immunities

Constitutional Law:
Dred Scott v. Sandford (1857)
3

Issue: Did Scott become a free

citizen by virtue of setting foot
in either Illinois or Minnesota?
Holding: Blacks Founding, and
therefore can never be Federal
citizens.
Taney: Tried to settle the debate
over slavery. While Dred Scott
may not have caused the Civil
War, it certainly did not succeed
in preventing it either.

Constitutional Law:
Intro to Executive Power
4

Civil War Cases present a series of similar

questions:

What (if any) are the limits of the Presidents power

to respond to perceived emergencies?
When must Congress act to approve (in advance or
retroactively) the Presidents actions?
Who decides when a particular measure is
necessary?
What role should the Supreme Court play in
defining the powers of the political branches in time
of emergency?

Constitutional Law:
Civil War Cases - Recap
5

The Prize Cases (1863):

Majority: The President has the power to
determine whether a state of war exists, and to
act to defend the country.
Dissent: The only way for the US to be at war
is for Congress to declare it.
Ex Parte Merryman (C.C.D. 1861):
Only Congress has the power to suspend the
writ of habeas corpus.

Constitutional Law:
Responding to the Civil War
6

[A]re all the laws but one to go

unexecuted and the
Government itself go to pieces
lest that one be violated? Even
in such a case would not the
official oath be broken if
the Government should be
overthrown, when it was
believed that disregarding
the single law would tend to
preserve it? (324)

Constitutional Law:
Ex Parte Merryman (C.C.D. Md. 1861)
7

Now, it is insisted that Congress and not the

Executive is vested with this power. But the
Constitution itself is silent as to which, or who, is
to exercise the power; and as the provision was
plainly made for a dangerous emergency, it
cannot be believed the framers of the instrument
intended that in every case the danger should run
its course until Congress could be called together,
the very assembling of which might be prevented,
as was intended in this case, by the rebellion.
(324).

Constitutional Law:
The Emancipation Proclamation (1863)
8

I, Abraham Lincoln, President of the United

States, by virtue of the power in me vested as
Commander-in-Chief, of the Army and Navy of the
United States in time of actual armed rebellion
against the authority and government of the
United States, and as a fit and necessary war
measure for suppressing said rebellion, order that,
in those states currently in rebellion against the
United States, all persons held as slaves within
said designated States, and parts of States, are, and
henceforward shall be free. (325)

Constitutional Law:
The Gettysburg Address
9

Four score and seven years ago our fathers brought

forth on this continent a new nation, conceived in
liberty and dedicated to the proposition that all men
are created equal. Now we are engaged in a great
civil war, testing whether that nation or any nation
so conceived and so dedicated can long endure. . . . It
is for us the living, rather, to be dedicated here to the
unfinished work which they who fought here have
so nobly advanced. . . . [T] his nation under God
shall have a new birth of freedom, and that
government of the people, by the people, for the
people shall not perish from the earth. (332)

Constitutional Law:
Ex parte Milligan (1866)
10

Background: Milligan, a Confederate sympathizer,

is tried by a military commission for allegedly
planning to steal weapons (and free Confederate
soldiers) from Union POW camps.
Issue: Can Milligan be tried by a military, rather
than a civilian, court?
Holding: For unanimous Court, Davis, J., says no:
President Lincoln lacked the unilateral authority to
create military tribunals. But Chase, C.J., writes a
four-Justice concurrence.

Constitutional Law:
Ex parte Milligan (1866) (PCD 334)
11

Open Courts: As necessity creates the rule, so it

limits its duration; for, if this government is
continued after the courts are reinstated, it is a
gross usurpation of power. Martial rule can never
exist where the courts are open, and in the proper
and unobstructed exercise of their jurisdiction. It is
also confined to the locality of actual war.
Civilian Defendant: [N]o usages of war could
sanction a military trial there for any offence
whatever of a citizen in civil life, in nowise
connected with the military service.

Constitutional Law:
Ex parte Milligan (1866)
12

If, in foreign invasion or civil war, the courts are

actually closed, and it is impossible to administer
criminal justice according to law, then, on the
theatre of active military operations, where war
really prevails, there is a necessity to furnish a
substitute for the civil authority, thus
overthrown, to preserve the safety of the army
and society; and as no power is left but the
military, it is allowed to govern by martial rule
until the laws can have their free course. (334)

Constitutional Law:
Ex parte Milligan (1866)
13

Chase,

C.J., concurring:
[W] hen the nation is involved in war, and
some portions of the country are invaded, and
all are exposed to invasion, it is within the
power of Congress to determine in what states
or district such great and imminent public
danger exists as justifies the authorization of
military tribunals for the trial of crimes and
offences against the discipline or security of the
army or against the public safety. (336)

Constitutional Law:
Ex parte Milligan (1866)
14

Famous

Rights-Protection Language from

Milligan:
The

Constitution of the United States is

a law for rulers and people, equally in
war and in peace, and covers with the
shield of its protection all classes of
men, at all times, and under all
circumstances.

Constitutional Law:
The Civil Wars Quiet Revolution
15

The Civil War years witnessed a massive

broadening of Congresss role in local economic
and commercial regulation, e.g.:

Creation of the Department of Agriculture

Morrill Land-Grant Act
Authorization of the Pacific Railroad
The National Currency Act of 1863
The National Bank Act of 1864

Why? First, the war provided Congress with

necessity arguments. Second, the traditional
critics of federal power were missing.

Constitutional Law:
The New Birth of Freedom

The Thirteenth Amendment (1865):

Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime
whereof the party shall have been duly
convicted, shall exist within the United States,
or any place subject to their jurisdiction.
Section 2. Congress shall have power to
enforce this article by appropriate legislation.
Why wasnt this enough?

Constitutional Law:
Presidential Reconstruction

Championed by Presidents Lincoln

& Andrew Johnson (left).
Favored quick, peaceful
reunification; focus on abolition of
slavery and the provision of some
civil / political rights to former
slaves.
Johnson objected to (and vetoed) the
more radical elements of Congresss
Reconstruction efforts, like the Civil
Rights Act of 1866, which was
overridden by Congress.

Constitutional Law:
Congressional Reconstruction

Also known as Radical Reconstruction after the

Radical Republicans who took over in the 1866
midterm elections.
A far more punitive program vis--vis the South,
and a far more ambitious regime vis--vis the
rights of freed slaves.
Ambitious legislation to protect the rights of newly
freed slaves:
Freedmans Bureau
Civil Rights Bill of 1866

Constitutional Law:
The Civil Rights Act of 1866 (pre-14A)

(348): [C]itizens, of every race and color, without

regard to any previous condition of slavery or
involuntary servitude, . . . shall have the same
right, in every State and Territory in the U.S., to
make and enforce contracts, to sue, be parties,
and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property,
and to full and equal benefit of the laws and
proceedings for the security of person and
property, as is enjoyed by white citizens.

Constitutional Law:
The Civil Rights Act of 1866 (pre-14A)

Note the rights specifically protected by the Act:

1.
To make and enforce contracts;
2.
To sue, be parties, and give evidence;
3.
To inherit, purchase, lease, sell, hold, and
convey real and personal property; and
4.
To full and equal benefit of the laws and
proceedings for the security of person and
property.
Why these rights and not others?

Constitutional Law:
The Fourteenth Amendment 1:

The Fourteenth Amendment, 1 (1868):

All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.

Constitutional Law:
The Fourteenth Amendment 2-5:

2 deals with Apportionment (overruling the 3/5

Compromise), and includes a penalty clause for
states that disenfranchise voters (for reasons other
than crime or involvement in the rebellion).
3 bars certain former federal officials who
supported the South from holding federal office.
4 deals with various war-related debts.
5 (The Enforcement Clause): The Congress
shall have power to enforce, by appropriate
legislation, the provisions of this article.

Constitutional Law:
Congressional Reconstruction

39th Congress excluded elected representatives

from the former Confederate states - Art. I, 5, cl. 1
Georgia v. Stanton judging qualifications of
members of Congress is a political question.
14A was therefore proposed by a Congress with
no Democratic Southern opposition.
Reconstruction Acts Place Southern states under
military occupation, forces them to create new
state governments that permit black suffrage, will
recognize new congressional delegations only
after the state ratifies the 14A.

Constitutional Law:
Congressional Reconstruction

President Johnsons Impeachment:

Culmination of repeated clashes between Johnson
and the radical Congress.
Johnson tried to thwart implementation of the
Reconstruction Acts by firing his Secretary of War
in violation of the (unconstitutional?) Tenure of
Office Act.
Johnson ultimately bows to Congresss power to
dictate the terms of reconstruction and is acquitted
by one vote.
By 1868, all southern states had ratified the 14A.

Constitutional Law:
Redemption (1873-77)

Republicans increasingly divide over the radicalism

of Grants policies, especially the use of the federal
military throughout the South.
Panic of 1873 starts economic downturn; together
with intimidation of Freedmen in heavily Republican
areas of South, Democrats regain control of the House
of Representatives in 1874 midterms.
Disputed Election of 1876 leads to Compromise of
1877: Hayes (R) is declared winner; in exchange,
Hayes promises to remove federal troops (effectively
ending Reconstruction).

Constitutional Law:
The Election of 1872
26

Constitutional Law:
The Election of 1876
27

Constitutional Law:
Reconstruction Bottom Line
What Reconstruction Was
Civil rights Bill of 1866: Giving blacks civil rights
Free Labor Ideology: Role of government is to
protect the right to contract and no more
What Reconstruction Was Not
Commitment to black land ownership
Commitment to full equality social and political
rights, as well as civil rights for blacks

Constitutional Law:
The Slaughterhouse Cases (1873)

Facts:
Louisiana charters a
corporation giving a
monopoly to the
Crescent City Co.
The law requires all
slaughtering be done
at one facility.
Butchers must pay a
fee to use the facility.

Constitutional Law:
The Slaughterhouse Cases (1873)

Issue:
Whether the act
granting the monopoly
interferes with
butchers labor rights,
as protected by the new
constitutional
amendments.
Justice Samuel F. Miller

Constitutional Law:
The Privileges and/or Immunities Clauses

U.S. CONST. art. IV 2, cl. 1:

The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in
the several States.
U.S. CONST. amend. XIV 1, cl. 2:
No State shall make or enforce any
law which shall abridge the privileges
or immunities of citizens of the
United States . . . .

Constitutional Law:
The Slaughterhouse Cases (1873)

The alternative reading would constitute this

court a perpetual censor upon all legislation of
the States, . . . with authority to nullify such as it
did not approve as consistent with [the civil
rights of a States own citizens].
Such an argument radically changes the whole
theory of the relations of the State and Federal
governments to each other and of both these
governments to the people. (378)

Constitutional Law:
The Slaughterhouse Cases (1873)

Dissent (Swayne, J.):

These amendments are a new departure, and
mark an important epoch in the constitutional
history of the country. They trench directly
upon the power of the states. (383-84)

The Courts interpretation of the 14A turns

what was meant for bread into a stone. (384)

Constitutional Law:
Justice Stephen J. Field
2nd-longest tenure (1863-97)
Born in Conn. (settled in Cal.)
Unionist Democrat
Pioneered what we today call
substantive due process
the idea that the Constitution
protects various personal
liberties from all but the most
urgent govt regulation.
Dissent in Slaughterhouse
Majority op. in Pennoyer

Constitutional Law:
The Slaughterhouse Cases (1873)

Field, J., dissenting:

The State may prescribe such regulations for
every pursuit and calling of life as will promote
the public health, secure the good order and
advance the general prosperity of society, but
when once prescribed, the pursuit or calling
must be free to be followed by every citizen
who is within the conditions designated, and
will conform to the regulations. (327-28)

Constitutional Law:
The Slaughterhouse Cases (1873)

Bradley, J., dissenting: In my

judgment, it was the intention
of the people of this country in
adopting that amendment to
provide National security
against violation by the States
of the fundamental rights of
the citizen. (329)
In other words, Bradley thinks
the P-or-I Clause incorporates
the Bill of Rights.

Constitutional Law:
The Slaughterhouse Cases (1873)
The Meaning of the Due Process Clause:
[U]nder no construction of that provision that
we have ever seen, or any that we deem
admissible, can the restraint imposed by the
State of Louisiana upon the exercise of their
trade by the butchers of New Orleans be held to
be a deprivation of property within the
meaning of that provision. (379)

Constitutional Law:
The Slaughterhouse Cases (1873)
The Meaning of the Equal Protection Clause:
The existence of laws in the States where the
newly emancipated negroes resided, which
discriminated with gross injustice and hardship
against them as a class, was the evil to be
remedied by this clause. (379)

Constitutional Law:

The Slaughterhouse Cases (1873) Whats the Evil?

Majority: The one pervading purpose of the 14A, was
the freedom of the slave race. . . [I]n any fair and just
construction of any section or phrase of the [13th, 14th,
or 15th amendment], it is necessary to look to the
purpose which we have said was the pervading spirit of
them all. (375-76)
Dissent (Bradley, J.): The mischief to be remedied was
not merely slavery . . . but that spirit of insubordination
and disloyalty to the National government which had
troubled the country for so many years . . . [and] which
often rendered life and property insecure, and led to
much unequal legislation. (382-83)

Constitutional Law:
Why Slaughterhouse Matters: The 15th Amend.

United States v. Cruikshank (1876): Court relies on

Slaughterhouse to hold that the 15A merely
protects against race-based discrimination and that
the Constitution did not confer the right to vote on
anyone.
United States v. Reese: On the same day, the Court
invalidates 3 & 4 of the 1870 Enforcement Act,
which prohibited interference with the right to vote
on grounds includingbut not limited torace.
Court holds that 15A only empowers Congress to
prohibit race-based interference with the franchise.

Constitutional Law:
Taking Stock

Regardless of how broadly the Civil War

Amendments were meant to be construed, the
Court adopts a narrow readings of key
provisions, e.g., the P-or-I Clause (Slaughterhouse),
and 15A (Cruikshank & Reese).
A sharp divide was emerging over whether the
Reconstruction amendments changed the federalstate relationship (and, if so, how).
How you answer to that question affects your
interpretation of the post-war Constitution.

Constitutional Law
Spring 2015
Professor Emily Berman
Class 9
The Fourteenth Amendment:
Incorporation & Equality

Todays Targets:

Recap Civil War

Slaughterhouse

Thursday,
February 5, 2015

The Fourteenth Amendment &

Selective Incorporation
The 19th Century Fourteenth
Amendment and Equality

Bradwell v. Illinois (1873) & the

Separate Spheres Ideology

Minor v. Hapersett (1874)

Class 9
The Fourteenth Amendment Incorporation & Equality

Constitutional Law:
Civil War Cases - Recap
3

The Prize Cases (1863): The President has the

power to determine whether a state of war exists,
and to act to defend the country.
Merryman (1861): Only Congress has the power to
suspend the writ of habeas corpus (ignored);
justified as a necessary war measure.
Emancipation Proclamation (1863): Took
unilateral action to accomplish something over
which the Federal government had no power
during peace; justified as a necessary war measure.

Constitutional Law:
Civil War Cases - Recap
4

Ex Parte Milligan (1866):

Majority: Military commissions are
unconstitutional when the courts are open and
operating.
Concurrence: Congresss war powers gives it
authority to authorize military commissions.
Emergency Power questions:
The role of the courts, and whether its different
during war/crisis vs. peace time.
Whether to rein in the executive during crises
and, if so, how.

Constitutional Law:
The Reconstruction Amendments
5

The Thirteenth Amendment (1865): Neither

slavery nor involuntary servitude, except as a
punishment for crime where of the party shall
have been duly convicted, shall exist within the
United States, or any place subject to their
jurisdiction.
The Fifteenth Amendment (1870): The right of
citizens of the United States to vote shall not be
denied or abridged by the United States or by any
State on account of race, color, or previous
condition of servitude.

Constitutional Law:
The Reconstruction Amendments
6

The Fourteenth Amendment, 1 (1868):

All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.

Constitutional Law:
The Reconstruction Amendments
7

Original Purpose of the 14A

Provided constitutional support for the Civil
Rights Act of 1866.
Certainly intended to protect civil rights
(contract, property, etc.) to former slaves.
Almost certainly did not intend to extend to
political rights (e.g., voting) or social rights
(e.g., access to public accommodations).
Certainly did not apply to other groups (e.g.,
women).

Constitutional Law:
The Slaughterhouse Cases (1873)

Facts:
Louisiana charters a
corporation giving a
monopoly to the
Crescent City Co.
The law requires all
slaughtering be done
at one facility.
Butchers must pay a
fee to use the facility.

Constitutional Law:
The Slaughterhouse Cases (1873)

Issue:
Whether the act
granting the monopoly
interferes with
butchers labor rights,
as protected by the new
constitutional
amendments.
Justice Samuel F. Miller

Constitutional Law:
The Privileges and/or Immunities Clauses

U.S. CONST. art. IV 2, cl. 1:

The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in
the several States.
U.S. CONST. amend. XIV 1, cl. 2:
No State shall make or enforce any
law which shall abridge the privileges
or immunities of citizens of the
United States . . . .

Constitutional Law:
The Slaughterhouse Cases (1873)

The alternative reading would constitute this

court a perpetual censor upon all legislation of
the States, . . . with authority to nullify such as it
did not approve as consistent with [the civil
rights of a States own citizens].
Such an argument radically changes the whole
theory of the relations of the State and Federal
governments to each other and of both these
governments to the people. (378)

Constitutional Law:
The Slaughterhouse Cases (1873)

Dissent (Swayne, J.):

These amendments are a new departure, and
mark an important epoch in the constitutional
history of the country. They trench directly
upon the power of the states. (383-84)

The Courts interpretation of the 14A turns

what was meant for bread into a stone. (384)

Constitutional Law:
Justice Stephen J. Field
2nd-longest tenure (1863-97)
Born in Conn. (settled in Cal.)
Unionist Democrat
Pioneered what we today call
substantive due process
the idea that the Constitution
protects various personal
liberties from all but the most
urgent govt regulation.
Dissent in Slaughterhouse
Majority op. in Pennoyer

Constitutional Law:
The Slaughterhouse Cases (1873)

Field, J., dissenting (380):

The question presented is nothing less than
the question whether the recent amendments to
the Federal Constitution protect the citizens of
the United States against the deprivation of
their common rights by State legislation.
Under the 14A, fundamental rights, privileges,
and immunities which belong to him as a free
man and a free citizen, now belong to him as a
citizen of the United States, and are not
dependent upon his citizenship of any State.

Constitutional Law:
The Slaughterhouse Cases (1873)

Bradley, J., dissenting: In my

judgment, it was the intention
of the people of this country in
adopting that amendment to
provide National security
against violation by the States
of the fundamental rights of
the citizen. (382)
In other words, Bradley thinks
the P-or-I Clause incorporates
the Bill of Rights.

Constitutional Law:
The Slaughterhouse Cases (1873)
The Meaning of the Due Process Clause:
[U]nder no construction of that provision that
we have ever seen, or any that we deem
admissible, can the restraint imposed by the
State of Louisiana upon the exercise of their
trade by the butchers of New Orleans be held to
be a deprivation of property within the
meaning of that provision. (379)

Constitutional Law:
The Slaughterhouse Cases (1873)
The Meaning of the Equal Protection Clause:
The existence of laws in the States where the
newly emancipated negroes resided, which
discriminated with gross injustice and hardship
against them as a class, was the evil to be
remedied by this clause. (379)

Constitutional Law:

The Slaughterhouse Cases (1873) Whats the Evil?

Majority: The one pervading purpose of the 14A, was
the freedom of the slave race. . . [I]n any fair and just
construction of any section or phrase of the [13th, 14th,
or 15th amendment], it is necessary to look to the
purpose which we have said was the pervading spirit of
them all. (375-76)
Dissent (Bradley, J.): The mischief to be remedied was
not merely slavery . . . but that spirit of insubordination
and disloyalty to the National government which had
troubled the country for so many years . . . [and] which
often rendered life and property insecure, and led to
much unequal legislation. (382-83)

Constitutional Law:
Why Slaughterhouse Matters
19

P-or-I clause of the 14A

protects only rights of
United States citizens,
not rights of state
citizens.
Day-to-day rights (life,
liberty, property) are
subject to state police
power.

Constitutional Law:

Why Slaughterhouse Matters the 15th Amendment

United States v. Cruikshank (1876): Court relies on

Slaughterhouse to hold that the 15A merely
protects against race-based discrimination and that
the Constitution did not confer the right to vote on
anyone.
United States v. Reese: On the same day, the Court
invalidates 3 & 4 of the 1870 Enforcement Act,
which prohibited interference with the right to vote
on grounds includingbut not limited torace.
Court holds that 15A only empowers Congress to
prohibit race-based interference with the franchise.

Constitutional Law:
Why Slaughterhouse Matters
21

Two recurring questions about the 14A:

(1)
(2)

Does any aspect of Section 1 protect any

unenumerated (implied fundamental) rights?
Does any aspect of Section 1 incorporate the Bill
of Rights (in whole or in part) against the states?
Slaughterhouse is significant in taking the P-or-I
Clause off the table as an answer to either, even
though Field thought it was the answer to (1),
and Bradley thought it was the answer to (2).

Constitutional Law:
Taking Stock

Regardless of how broadly the Civil War

Amendments were meant to be construed, the
Court adopts a narrow readings of key
provisions, e.g., the P-or-I Clause (Slaughterhouse),
and 15A (Cruikshank & Reese).
A sharp divide was emerging over whether the
Reconstruction amendments changed the federalstate relationship (and, if so, how).
How you answer to that question affects your
interpretation of the post-war Constitution.

Constitutional Law:
Segue to Incorporation
23

Remember in Slaughterhouse, there were two

dissents:
(1)

One argued that the 14A created substantive

limits on state legislation that could be
enforced by individuals against states

(2)

Another argued that the 14A makes the Bill of

Rights applicable to the states.

Constitutional Law:
Incorporation: Two Approaches
24

Total Incorporation: Justice Blacks theory; holds

that 14A applies every provision of the first eight
amendments to the states.
(2) Selective Incorporation: Justice Brennans theory;
holds that 14A applies certain provisions of the first
eight Amendments to the states, but not all of them.
(1)

The Supreme Court has never embraced total

incorporation, though it has eventually held that
almost every provision of the Bill of Rights is
incorporated, with only a few exceptions.

Constitutional Law:
Incorporation: Exceptions (as of 2007)
25

(1)
(2)
(3)
(4)
(5)
(6)
(7)

The Second Amendment

The Third Amendment (Quartering)
The Grand Jury Indictment Clause of 5A
The Vicinage Clause of 6A
(Jury from district where crime took place.)
Size / Unanimity for Jury Trial Clause of 6A
The Seventh Amendment (Civil Juries)
The Excessive Fines Clause of 8A

Constitutional Law:
Why Incorporation Matters (A Lot!)
26

Think of all the rights that come from the Bill of

Rights:
The right to counsel (Gideon v. Wainwright);
Miranda rights;
The exclusionary rule for 4A violations (Mapp v.
Ohio);
Free speech and free exercise of religion, etc.
Role of reviewing state law violations:
There were many, many more of them
Lower federal courts were, at the time, far more
protective of criminal defendants rights.

Constitutional Law:
The Second Amendment
27

A well regulated Militia, being necessary to the

security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.

Why do you think the drafters of the Bill of

Rights included this provision?
How does / should that bear on the question
of what it means today?

Constitutional Law:
District of Columbia v. Heller (2008)
28

Facts: DC essentially
prohibits the
possession of
handguns.
Issue: Do these
restrictions violate
the 2A?
Holding: For a 5-4
Court, Justice Scalia
says yes.

Constitutional Law:
McDonald v. City of Chicago (2010)
29

Issue: Should the

Supreme Courts
interpretation of the 2A
in Heller be
incorporated against
the states?
Holding: For a 4-1-4
Court, Alito, J. (with
Roberts, Kennedy, &
Scalia) says yes (DPC).
Concurrence: Thomas,
J., concurs (P-or-I
Clause)

Constitutional Law:
McDonald Majority (Alito, J.)
30

The 2A should be incorporated through the 14A to

apply to the states because:
First, there is strong evidence from the Founding
era that the 2A was fundamental at the time.
Second, the history of Reconstruction

14 of the Freedmens Bureau Act of 1866 provided

that the right ... to have full and equal benefit of all
laws and proceedings concerning personal liberty,
personal security, and the acquisition, enjoyment, and
disposition of estate . . . including the constitutional
right to bear arms, shall be . . . enjoyed by all the
citizens ... without respect to race or color. . . .

Constitutional Law:
Justice Clarence Thomas
31

b. 1948, Pin Point, Georgia

B.A., Holy Cross; J.D., Yale
Chair, EEOC (1982-90)
D.C. Circuit Judge (1990-91)
Appointed by Pres. Bush (1991-)
Closest conf. since 1881 (52-48)
Second Black Justice (Marshall)
Most ardent defender of states
rights / sovereignty on Court
Aligns with Scalia, but is more
doctrinally consistent in practice

Constitutional Law:
McDonald: Thomass Concurrence
32

Argues that the 14A P-or-I Clause should be

resuscitated (rather than using the Due Process Clause):
Evidence from the political branches in the years
leading to the [14As] adoption demonstrates broad
public understanding that the P & I of United States
citizenship included rights set forth in the
Constitution. . . .

1 [of the 14A] was understood to enforce

constitutionally declared rights against the States, and
they provide no suggestion that any language in the
section other than the Privileges or Immunities Clause
would accomplish that task.

Constitutional Law:
Taking Stock After McDonald
33

Note the Justices odd positions in McDonald:

Plurality: Justices who tend to be the staunchest
critics of substantive due process, have no
problem relying on the Warren Courts
understanding of incorporation to apply the
Second Amendment to the states.
Dissenters: Justices who tend to be the
strongest supporters of substantive due process
think this case is different.
Thomas: All by himself

Constitutional Law:
The Equal Protection Clause of the 14A
34

(1)
(2)
(3)

The Fourteenth Amendment, 1:

[N]or shall any State . . . deny to any person
within its jurisdiction the equal protection of
the laws.
What does equal protection of the laws mean?
What kind of equality?
Who is entitled to equal protection?
More generally, who is entitled to any of these
new constitutional protections?

Constitutional Law:
Bradwell v. Illinois (1873)(PCD 391-93)
35

Issue: Can a state deny a law

license to a woman without
violating the 14th Amend.?
Holding: Yes. [U]nless we are
wholly and radically mistaken
[about what Slaughterhouse
means], the right to control and
regulate the granting of
licenses . . . is one of those
powers which are not
transferred for its protection to
the Federal government.

Constitutional Law:
Bradwell: Bradleys Concurring Opinion
36

[T]he civil law, as well as nature herself, has

always recognized a wide difference in the
respective spheres and destinies of man and
woman. . . . So firmly fixed was this sentiment in
the founders of the common law. . . that a woman
had no legal existence separate from her husband,
who was regarded as her head and representative
in the social state; and . . . many of the special rules
of law flowing from and dependent upon this
cardinal principle still exist in full force in most
States. (392)

Constitutional Law:
Bradwell v. Illinois (1873)
37

Why isnt Bradwell an equal protection case?

Recall Millers opinion in Slaughterhouse:

The existence of laws in the States where the
newly emancipated negroes resided, which
discriminated with gross injustice and
hardship against them as a class, was the evil to
be remedied by this clause, and by it such laws
are forbidden.

Constitutional Law:
Minor v. Happersett (1874)
38

Issue: Does the 14A Citizenship

Clause include a right to vote as
part of the citizenship it confers?
Holding: No. For a unanimous
Court, Waite, C.J., rejects the
suffragist theory of the 14A;
holds that voting is not an
inherent part of citizenship, and
so the right to vote is not part of
the rights conferred and
protected by 1 of the 14A.

Constitutional Law:
Minor v. Happersett (1874)
39

For

nearly ninety years the people have acted

upon the idea that the Constitution, when it
conferred citizenship, did not necessarily confer
the right of suffrage. If uniform practice long
continued can settle the construction of so
important an instrument as the Constitution of
the United States confessedly is, most certainly
it has been done here. (398-99)

Constitutional Law:
The Fourteenth Amendment 2
40

[W]hen the right to vote at any election for

[federal or state officers] is denied to any of the
male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or
in any way abridged, except for participation in
rebellion, or other crime, the basis of
representation therein shall be reduced in the
proportion which the number of such male
citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.

Constitutional Law:
Segue to the Extraterritorial Constitution
41

The question of exactly who the Constitution

protects (especially the 14A) includes two
other important variations:

(1)

To what extent does the Constitution protect

U.S. citizens outside the territorial United
States?

(2)

To what extend does the Constitution protect

non-citizens who immigrate to the United
States?