Study Guide 3 Essay Questions:
1. The adoption of the 14th Amendment has been called the “rebirth of American freedom.” Was it?
Many consider 14th amendment the rebirth of American freedom because the broad citizenship
clause overruled Justice Taney’s decision in Dredd Scott v. Sandford from 1852. In the opinion Justice
Taney said that framers were not hypocrites for imposing the 3/5th clause and other provisions that
made AA’s into property, because framers never intended AA’s to be citizens. This thought was carried
out by President johnson in his veto to the Civil Rights act of 1866, in which he said that congress doesn’t
have the authority to enact legislation enact legislation for the states, and that it was not fair to immigrants to
give former slaves, a blanket citizenship because “intelligent, capable foreigners” had to wait 5 years to earn a
citizenship. The 14th amendment was ratified to give congress a new source of power to enforce liberty.
So even though many see the 14th amendment as the rebirth of american freedom, the 14th
amendment only provided the seed of freedom for groups such as AA’s, women, and immigrants,
which the courts and congress took decades to shape until the freedoms incorporated in the 14th
amendment came into fruition.
1. Women
a. How did 14th amendment help the women? (it didnt)
i. United States v. Susan B. Anthony (1872)
1. Anthony on trial for the crime of having voted in the last presidential election
without having the lawful right to vote. She argues that the 14th Amendment
guaranteed women the right to vote, as it guaranteed their citizenship and the
privileges of citizenship, which contained no gender qualification, gave women
the constitutional right to vote in federal elections. Anthony also cites to the
natural law that entitles her to the right to vote and have a voice in her
government. She cites from the constittution, which was passed in 1787, to show
that the preemble reads, we the people and not we the men. So when enforcing
the 14th amendment, the courts should not be able to enforce arbitrary
distinctions created to do nothing more than impede the freedoms.
2. Voting ≠ fundamental right, therefore guilty.
ii. Bradwell v. Illinois (1873) (didn’t help)
1. The case involved a woman, Myra Bradwell, who wanted to be admitted to the
Illinois bar to practice law. The majority held that that there are certain privileges
and immunities that belong to the citizens of the US and the 14th Amendment
forbids states from abridging these, however, the right of admission to a state bar
is not one of the privileges of US citizenship. The court said that just like voting is
not a fundamental right, neither is the right to seek admission into the bar. The
court says the scope of rights actually protected by the 14th amendment is quite
narrow, and they were reluctant to interfere into the domestic affairs of the state.
2. Separate spheres ideology in Justice Bradley’s concurrence allowed Illinois to
prohibit women from practicing law. Women’s admission to the bar is not
protected by the Fourteenth Amendment and is a matter reserved to the states.
This ideological, cultural argument of separate spheres explains why the
constitutional provision providing that citizens/persons are equal before the law
nevertheless permits states to treat people DIFFERENTLY. Bradley thought that
women belonged at home and that women, under coverture, could not belong to
the Bar. Women were unfit to be lawyers because they were too feminine.
Women were designed to pump out kids and raise them. Because Men and
Women belong to different spheres and cannot transfer between one and the
other. In essence, there was an artificial sphere created to deny women the
freedoms guaranteed in the 14th amendment.
3. If 14th amendment was truly the rebirth of american freedom, Myra bradwell
would not have been denied an admission to the bar and would have been free
to practice law. However, despite the 14th amendment, the court created artificial
distinctions in the social life to deny women freedom.
2. Immigrants
i.
Fong Yue Ting v. US. (1893) (didn’t help)
1. In 1892 Congress passed an act that said every Chinese laborer should be
deported from the country unless he could legally prove he was allowed to be
there. After Ting was arrested, he challenged the law as an unconstitutional
restriction of due process Essentially the court extended its inherent national
sovereignty powers rationale for congressional authority to deport immigrants
who have been residing in the US already. Ting challenged that the law was
unconstitutional because it deprived him of his due process. Again, the court was
able to dodge the freedoms guaranteed to anyone in the united states by
enforcing an arbitrary and an abstract policy, which the 14th amendment could
not reach. They say this great unchecked power is a slippery slope, not just for
Chinese immigrants, but for any immigrants. The dissent explains that congress
now has the power to deport any immigrant/immigrant group, trampling on their
constitutional rights, at any time for no other reason than their race/national
origin. If the 14th amendment was truly about rebirth of freedom guaranteed to
everyone in the united states, then there would not have been artificial laws
created to deprive people like fong yue ting of due process under the law.
Therefore, 14th amendment is merely a seed of freedom, and not the rebirth,
because a seed needs time to grow in the right environment to be brought to life.
ii. The freedom is also deprived in the SCOTUS case of 1944 Korematsu v. US because
the court held it was not unconstitutional to put japanese in internment camps and strip
them of their freedom. Korematsu was a United States citizen, who, like hundreds of
thousands of japanese, was stripped of the freedom and forced to internment. The court
adhered to the military’s reasoning that it was impossible to distinguish loyal vs disloyal
japanese. The court again turns to an arbitrary authority to deprive people of freedom
and put it outside the reach of the 14th amendment. The US was at war with italy,
germany, and japan, yet only the japanese citizens of the united states were stripped of
their freedom.
3. Blacks
a. The amendment was designed to grant citizenship to and protect the civil liberties of recently
freed slaves.
b. How did 14th amendment help the blacks?
i. Plessy v. Ferguson (1896) [not very helpful]
1. held separate but equal was consistent with 14th amendment.
a. the majority rejected plaintiff’s argument that enforced separation of the
races stamps the colored race with a badge of inferiority. the court
showed a blindness to the obvious social meaning of the law itself. The
court says that nothing about the act makes the blacks inferior, and puts
the blame on the african americans for thinking that the majority
segregating them is inequality. Court says it is a matter of harmony, and
not inequality. In calling segregation a matter of harmony, the court says it
can provide no remedy that will bring the races together if they don’t want
to, and only if and when the races are willing to come together through
mutual harmony, then the court won’t be required because it occur
through legislation. That the 14th amendment only protects civil rights,
that may not be impeded on by the government, but that social rights lie
beyond the reach of any law. And this reasoning strictly enforces jim crow
laws and discrimination. Therefore, 14th amendment wasn’t a rebirth of
american freedom because the courts, such as in plessy, were quick to
break down the civil rights and impede on the freedom in the guise of
social rights.
2. Justice Harlans dissent famously and emphatically rejects the majority opinion.
Justice Harlan claims that the constitution is colorblind and does not foster the
seed of hate, which the kids will grow into and divide the races further. Although,
he dissents with the majority’s stance, he does not reject the majority’s legal
reasoning that the court’s cannot control private conduct.
3. Over the next two decades, under the approval of Plessy, southern legislatures
engaged in ambitious programs to segregate society (everything from
cemeteries, maternity wards, restaurants, theaters, swimming pools). So as can
be seen through Plessy and the decades of segregation following the decision,
the 14th amendment did not was not a rebirth of freedom. Had it been the rebirth
of freedom, plessy and segregation would not have been able to deprive the
african americans of fundamental rights by enforcing separate but equal doctrine,
which were anything but equal and imposed barriers to freedom.
ii. Brown v. Board (1954) [finally helped after decades]
1. racial segregation, regardless of the quality of the racially segregated schools,
was unconstitutional. Segregation had no valid purpose, was imposed to give
blacks lower status, and was therefore unconstitutional under equal protection
clause of the 14th amendment. (invidious discrimination)
a. overturns Plessy.
2. legal realism helped influence this change
a. Separate but equal hurts the victims by causing psychological problems.
This relied on a Brandeis Brief and a doll study.
3. rebirth
4. Time provided the water to nourish the seed of the Fourteenth Amendment--which at last provided
African Americans with full citizenship and prohibited any state from denying any citizen due process
and equal protection under the law--and allowed for the rebirth of American Freedoms for some
classes.
2. During the last third of the 19th century, there emerged a conflict between the core values of the 14th
Amendment—the equality of persons, the protection of fundamental rights, and the inviolable privileges of
American citizenship—and strongly held cultural beliefs regarding the natural, ineradicable differences
between particular classes of persons. How did this conflict shape the Supreme Court’s construction of the
14thAmendment?
a. Same content as 1, just switch the thesis.
b. Thesis: In response to the 14th amendment, the court started enforcing arbitrary differences
between particular classes to force them outside of the reach of the 14th amendment.
i. women: separate spheres
ii. blacks: separate but equal.
iii. immigrants: national emergency/ military etc.
Study Guide 4 Essay Questions:
Discuss some of the ways in which ideas originating outside of the law—for example, political values,
economic ideology, and cultural beliefs—informed the development of constitutional doctrine during the period
between the end of the Civil War and 1930.
During the period, the court adhered to judicial activism to enforce their economic ideologies. The court used
the economic principle of laize faire to help the rich and used class warfare through broad view of the
government power of national government to allow government to restrict unions. However, to end this line of
thinking, the court dropped the 25 or so years of precedence through legal realism. a doctine that was
developed in the brandies brief, in that the court does not have to rely on precedent and can make decisions
through social and economic data and trends of the time.
Introduce the source of power for the government. (slaugtherhouse dissent).
1. The time from 1873 to 1930, in which the United States Supreme Court, using a broad interpretation of
due process that protected economic rights, tended to strike down economic regulations of working
conditions, wages or hours in favor of laissez-faire economic policy. Laissez-faire was an economic
policy that originiated outside of the law.
a. Due process
i. slaughtherhouse dissent and concurrence.
ii. Before slaughterhouse, due process was a bunch of procedural rights.
iii. Substantive due process was legally innovative because it fused substantive rights in
with the application of the 14th amendment protection of due process.
b. Class warfare against the poor and laizzefaire for the rich.
i. A trend where the court took a very broad view of national power to allow the gvpt to
restrict union activities, but took a very narrow view to defeat gvpt efforts to regulate big
business.
ii. broad view of national power to allow the gvpt to restrict union activities
1. In re debs:
a. The strike obstructed the US mail, which was delivered by railroad, so the
federal gvpt got an injunction to stop the strike, which the union leaders
(Debs was the union president) refused to follow. The court upholds the
injunction as constitutional, and says that the union is obstructing the
freedom of interstate commerce, and is also obstructing the US mail. In
this case court expands the use of injunctions to protect public rights and
punish public wrongs, which for the first time gave federal and state gvpts
a profoundly powerful weapon to use against strikers – very important
that gvpt could now use injunctions against strikers that had criminal
penalties for not following them.
b. This case also stands as an example of the Supreme Court wielding the
US constitution as an instrument of ‘class warfare.’ They expanded the
national powers when it came to suppressing the unionization of poorly
paid wage laborers, but yet they narrowed national power when it came to
regulating wealthy powerful expansive businesses
iii. government cannot regulate when it harms the rich.
1. lochner.
a. Used substantive due process that originated in slaughterhouse to deny
government the power to regulate. Liberty was a substantive right.
freedom to contract went to liberty. So bakers have a freedom to contract
since they have property rights in their labor. no lack of bargaining power.
Government does not need to interfere bc it would infringe on substantive
due process.
b. Dissent says that the majority is implementing social darwinism. Survival
of the fittest to promote a strong economy
c. example of the SCOTUS wielding the Constitution as an instrument of
“class warfare” They expanded the national powers when it came to
suppressing the unionization of poorly paid wage laborers (In Re Debs1895), but yet they narrowed national power when it came to regulating
wealthy powerful expansive businesses (Lochner).
d.
c. 1930’s
i. legal realism
1. Legal realism came of age in the 1920’s and 1930’s. Carter Coal, Moorehead,
etc. seemed to many people to really fly in the face of economic reality. It was the
Great Depression.
2. The Court’s refusal to take account of economic conditions that people wanted
the government to deal with fueled the “legal realism” movement.
3. Legal realists saw the law not as fixed and permanent, or guided by pure logic
and natural law, but rather as something in constant flux, constantly changing as
it adapted to social and economic changes. Because law always lagged behind,
lawyers and judges should feel less bound by precedent and pay more attention
to current conditions. Social-scientific and economic studies were especially
useful sources of studies about current conditions. They felt that Judges were
using their own normative judgments and should therefore recognize this and
investigate the world in order to at least inform judicial decision making with real
facts.
4. Brandies brief: to introduce the concept.
5.
ii. Wagner Act (1935)
1. during great depression, workers had no bargaining power
2. changed the rules of the marketplace, enhancing the power of workers relative to
their employers.
3. required employers to bargain with union reps and prohibited employers from
interfering with unions or from retaliating against employees who filed labor
grievances, and was a way to ensure workers receive decent wages and
reasonable working conditions.
4. it seemed to infringe on the principle conservative weapon against labor
regulation --freedom of contract.
iii. West Coast Hotel v. Parrish (1937)
1. The court is reviewing the constitutionality of a minimum wage law for women (to
protect health) and deciding whether it is a violation of liberty of contract under
substantive due process. The court is looking to the wider-world (legal realism)
for underlying rationale for minimum wage law, and upholds the law as
constitutional. Since women had no bargaining power, the state could regulate
their industry to protect them.
2. In Lochner (1905) the government was the enemy of economic liberty, but here
the enemy of economic liberty wasn’t the government but the Great Depression.
This time the government, through its police power, is understood as a defender
of economic liberty. This is a major development that opens door for states and
fed government to establish min wages.
3.
2. The Supreme Court during the period between 1890 and 1937 has been accused of wielding the U.S.
Constitution as an instrument of “class warfare.” To what extent is this a fair characterization?
a. In Re Debs (1895)
i. Case arose from a strike of union railroad workers. The strike obstructed the US mail,
which was delivered by rail, so the federal government got an injunction to stop the
strike, which the union leaders (Debs was union president) refused to follow. The court
upholds the injunction on the grounds that the union is obstructing the freedom of
interstate commerce.
ii. stands as an example of the SCOTUS wielding the Constitution as an instrument of
“class warfare” They expanded the national powers when it came to suppressing the
unionization of poorly paid wage laborers, but yet they narrowed national power when it
came to regulating wealthy powerful expansive businesses.
b. Lochner v. NY (1905)
i. majority struck down a NY law regulating the number of hours bakers could work per
week, with the majorty basing their decision on this idea of workers having property
rights in their own labor and workers’ liberty to contract that labor for a wage.
ii. In dissent, Justice Holmes is saying that the majority is forcing their own political and
economic values on to the decision and further onto the public as a whole. He felt
majority was implementing social darwinism and thus SCOTUS wielding the Constitution
as an instrument of “class warfare”
Study Guide 5 Essay Questions:
1. Constitutional scholars have long puzzled over something called the “counter-majoritarian difficulty”—the
charge that judicial review lacks legitimacy because it permits unelected (and thus democratically
unaccountable) judges to overrule the will of the majority, expressed through laws adopted by the elected
representatives of the people. Do the Supreme Court decisions we’ve read and discussed over the past
few weeks illustrate this dynamic? To the extent that they do, is the anti-democratic aspect of
constitutional review a “problem”?
Yes, SCOTUS decisions do illustrate the principle that judges overrule the will of the majority, however it is not
always a “problem” because the court can remedy bad decisions far more quickly than the legislative process
through legal realism can remedy the will of the majority.
- Federalist 78: Madison said that judiciary is the least dangerous because it does not have the power
of the purse or the sword, but rather of mere judgment. However, the court over the years had manipulated the
power of the purse and the sword to will it to act in accordance with how it sees fit.
Court went against will of majority versus its not a problem cuz they fixed it through legal realism:
1. Locher versus Muller v. Oregon (legal realism)
a. Lochner (1905): court struck down a NY law regulating the number of hours bakers could work
per week
i. judges overruling the will of the majority which is expressed through laws adopted by the
elected representatives of the people.
ii. Accused of promoting social darwinism.
b. Muller fixed it through legal realism.
i. Brandies brief.
2. Dredd Scott (and somewhat plessy) versus. Brown v. Board (Legal realism).
a. Nationalized the presumption that blacks were not citizens. Went against will of the north, which
led to the division between North and South democrats, giving lincoln an unlikely victory. Plessy
went further to say that 14th amendment was outside the reach of social sphere (hard to say if
this went against the will of the people in the north, it was a trend).
b. Brown v. Board fixed it through legal realism of dolls.
3. Carter Coal v. Laughlin (legal realism).
a. Carter Coal (1936)
i. This case arose from a lawsuit challenging an act that established a federal commission
to oversee local boards to control coal production and also set prices, impose wages,
etc.
ii. They said that all of these things which the federal commission would be allowed to
regulate through this act only have to do with the production and not the actual trade/not
the actual or literal transportation of the coal across state lines, and the production is not
included in the meaning of commerce, as understood under the commerce clause. This
harps all the way back to the court’s decision in E.C. Knight (1895) which made a stark
distinction between manufacturing and commerce and took a very strict view of the
commerce power
iii. At this point in time, with much of the country suffering, and almost everyone feeling loss
from the Great Depression, people were sort of over the whole laissez-faire thing, but as
the court demonstrates with their decision here and with this quote, the justices were
not. So, while elected officials were passing laws that the people wanted and, which
gave greater government control/regulation, the Supreme Court was striking down these
laws, effectually blocking the will of the majority with their power of judicial review.
b. Laughlin (1937)
i. Mining and production are commerce after all! They’re the heart that pumps commerce
through the states. They held that if an activity had a substantially close relationship to
commerce, it was commerce enough for Federal regulation.
2. Describe the evolution of the federal commerce power between the Founding Era and the 1960s.
Thesis: The evolution of federal commerce power is dictated around the expansion of the country’s economic
growth. In the founding era (specifically marshall era), the court found implied and expressed powers in the
early 1800’s to find a bank to boost the country's economic standing after the war of 1812. However, in the late
19th century and the early 20th century, the court restricted commerce clause power to increase the growth of
the country through sheer industrialism and favoring the large industrial complexes and corporations over the
laborers. Then when the country fell into depression, the court again began expanding commerce clause
power to heavily regulate industry to improve the economy after the depression.
1. Founding Era (expanding commerce)
a. McCulloch v. Maryland: (1819)
i. Neccesary and proper clause gives implicit power to commerce clause to create a bank.
b. Gibbons v. Ogden (1824)
i. This was the first major case to analyze the (express) powers of Congress under the
Commerce Clause. In so doing, the Court interpreted the powers to be very broad,
reaching any activity that affected commerce between or among states. (pragmatic)
2. 1895-1936(restricting federal commerce power)
a. EC Knight to Carter Coal (until end of four horsemen era)
i. EC Knight: (1895)
1. The court held that the monopoly was only in the manufacturing and that only
transportation of the manufactured sugar fell within Congress’ power to regulate,
so it does not allow the government to break up this monopoly, and in effect
nullifies the enforcement of the Sherman anti-trust act.
2. The court says that, although the federal government could have the power to
repress/break up a monopoly, it must be only in circumstances that fall within the
authority of the commerce power.
ii. Carter Coal (1936)
1. The Supreme Court took an extremely narrow interpretation of the commerce
clause here. They said that all of these things which the federal commission
would be allowed to regulate through this act only have to do with the production
and not the actual trade/not the actual or literal transportation of the coal across
state lines, and the production is not included in the meaning of commerce, as
understood under the commerce clause.
3. 1936- 1960’s (New deal era and beyond to expand commerce power)
a. Laughlin to Heart of Atlanta hotel
i. Laughlin: (1937)
1. Country needs economic rescue. Employ keynesian economics. regulate
everything, so now production and manufacture is commerce.
2. They held that if an activity had a substantially close relationship to commerce, it
was commerce enough for Federal regulation. Affecting commerce meant
anything relating to or burdening commerce or the free flow of commerce at all.
This is modern commerce clause authority.
ii. Heart of Atlanta:(1964)
1. We can fix social ills by declaring anything as commerce.
2. Commerce here means anything involving more than one state and having a real
and substantial relation to the national interest.
3. How has “equality” evolved as a legal or constitutional value in the period following the ratification of the
14th Amendment? refer to question 3.1
commerce is evolving:
mcculloch
ec knight and coal
laughlin and heart of atlanta
14th amendment:
bradwell
ting and korematsu
plessy and board