Welcome to the introductory course in Constitutional Law. The casebook is Erwin Chemerinsky, Constitutional Law (1st ed. Aspen 2001). In addition, there is a photocopied handout (available from the bookstore, and also on the Web), and sometime during the first month I will be distributing a CD-ROM with some useful reference and other materials. Finally, from time to time as the course continues I may be assigning occasional additional reading, either in handout or electronic form.
The wonders of technology. I maintain an electronic aspect of the course on West’s TWEN site, and most of the assignments and additional materials will be available there. I also maintain another web site (www.lofty.org) for distribution of material not easily posted to West; in addition, I have some interesting links (some useful, some funny) and restaurant reviews there.
You can send me individual email at lbecker@law.uconn.edu (or loftus.becker@uconn.edu). However, except for potentially embarrassing personal information (“Mr. Becker, I won’t be at class this week because my trial on fraud charges is taking place in Duluth.”) I much prefer that you post questions on the public discussion section of the TWEN pages, so that everyone can benefit. I have I believe enabled anonymous posting, so if you have a question that you think is a dumb one you can post it anonymously. (I don’t encourage this, but I allow it.)
Finally, from time to time I will be posting brief quizzes on the TWEN site. You are responsible for taking all of these quizzes until you achieve a score of 100%. Experience shows that such materials are best taken in pairs (which tends to stimulate discussion), and I encourage you to do so. However, please note that if you take the quiz this way it will be recorded under one but not both of your names, so the second person will have to sign on and take the quiz in his or her name to get a score recorded.
For the first class, please read the Constitution (focus on the original Constitution and the first eleven amendments). Please also read pp. 91-114, 117-119, in the casebook, and finally, Hammer v. Dagenhart, which appears on pp. 28ff. of the Supplement. In addition, before the first class you should go to the TWEN page, make sure you are registered for the course there, and post a message on the discussion board there indicating that you’ve gotten in. (This is not optional; I need to know that everyoe has access.)
McCulloch v. Maryland, 17 U.S. 316 (1819)
Gibbons v. Ogden, 22 U.S. 1 (1824)
United States v. DeWitt, 76 U.S. 41 (1870)
The Daniel Ball, 77 U.S. 557 (1871)
The Trademark Cases, 100 U.S. 82 (1878)
United States v. E.C. Knight Co., 156 U.S. 1 (1895)
Champion v. Ames, 188 U.S. 321 (1903)
Swift & Co. v. United States, 196 U.S. 375 (1905)
Shreveport Rate Cases, 234 U.S. 342 (1914)
Hammer v. Dagenhart, 247 U.S. 251 (1918)
Stafford v. Wallace, 258 U.S. 495 (1922)
Railroad Retirement Board v. Alton, 295 U.S. 330 (1935)
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
Carter v. Carter Coal Co., 298 U.S. 238 (1936)
Some notes on these materials follow.
The Constitution. Be prepared to explain what the Constitution does; what institutions it establishes; and what institutions it recognizes. Consider the constitution and what we would call “individual rights.” What do you think are important individual rights that should be protected? How does the Constitution provide explicit protection for individual rights? (How would you characterize the kind of rights protected explicitly by the Constitution?) What institution or institutions, under the Constitution, are responsible for defining and protecting individual rights?
Please note that there is an omission in Article III, § 2 of the Constitution as printed in the casebook. (The omission is critically important in understanding the debate over the scope of the Eleventh Amendment, but we aren’t covering that in this course.) That Article reads as follows (with the omitted language underlined):
Section 2. 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;—between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
McCulloch v. Maryland. McCulloch is perhaps the most famous case in constitutional law, referred to by Justice Frankfurter as "the most comprehensive, because the most comprehending." Its importance is not so much for the specific holding as for its view of the Constitution and how that Constitution should be interpreted. Pay attention to that aspect of the case.
McCulloch has essentially two parts: the Court holds first that Congress had power to incorporate the Bank of the United States, and second that Maryland lacked the power to impose the particular tax in question. Our primary interest is in the first of these questions, but we’ll consider the second one briefly. The opinion in the casebook is a bit too sharply edited; please take note of the two brief passages printed in the handout.
Current authorities would probably say that Congress had power to incorporate the bank because of the Necessary and Proper Clause. Note that this is not quite Marshall’s argument, is it? (Though it is probably consistent with Marshall’s argument.) Is Marshall wrong? Is there any scope today for the argument that Marshall makes? Consider the power of a federal court to punish a contempt committed in its immediate presence. Does that require congressional authorization?
Commerce power generally. It is important in considering these materials to realize that the Court has consistently found two aspects to the constitutional grant to Congress of power to regulate commerce among the several states. First, of course, the clause gives Congress some power. In addition, however, the Court has consistently found in the grant of power to Congress some diminution of the powers of the States. Although we aren’t covering this topic in this course, it is important to have some sense of the development of this “negative commerce clause” doctrine throughout the country’s history.
In Gibbons v. Ogden, the Court suggested (but explicitly did not decide) that perhaps the grant to Congress of the power to regulate interstate commerce implied that the States had no power to regulate interstate commerce. (The argument so far as I know was never carried over to include the power of Congress to regulate matters “necessary and proper” to the regulation of interstate commerce.) This was a major subject of debate (never finally settled) during the country’s first 60 years. In Cooley v. Board of Wardens, 53 U.S. 299 (1851) the Court thought it had found a compromise, holding that the States were prohibited from regulating interstate commerce where the matter demanded uniform national regulation, but could otherwise regulate interstate commerce unless Congress had enacted a contrary regulation. Thus, until well into the 20th Century, a conclusion that some particular activity was “Commerce ... among the several States” carried with it a substantial probability that it could not be regulated by the States. Some of the language in E.C. Knight is perhaps best understood if one bears this in mind.
It may be helpful, too, to know of the Court’s early concepts of “interstate commerce.” One of the major problems in the 19th Century involved state taxation. Many states, then as now, typically imposed property taxes, calculated on the value of property owned on a particular day. The Court early concluded (can you see why?) that states could not tax property that was “in” interstate commerce, that is, that was in the process of moving from one state to another. That of course raised the question when the interstate journey began, and when it ended. Although the tests are different, the rule remains in place today.
Incidentally, current law is approximately this: State regulations cannot discriminate against interstate commerce without an extremely powerful justification (such as the need to keep diseased animals out of the state). This rule has little dissent. In addition, a majority of the Court has held for more than a generation that even a nondiscriminatory state law cannot stand if it substantially burdens interstate commerce and the burdens outweigh the local benefits. A minority of the Court has consistently objected to this aspect of the rule.
United States v. E.C. Knight Co. It is perhaps important to know that the quoted language is dictum, albeit emphatic dictum; the actual holding of the Court was that the Sherman Antitrust Act did not seek to cover the conduct charged (a conclusion reached in part because of the Court’s belief that a contrary construction would raise serious constitutional questions). Does the Court’s argument in Knight overlook the necessary and proper clause? Subsequent to Knight, the Court affirmed antitrust decrees against companies found to have monopolized manufacture and interstate sale of goods. E.g., Addyston pie & Steel v. United States, 193 U.S. 197 (1904).
Shreveport Rate Cases (p. 110): In case it isn’t clear from the substantially edited opinion, the opinion in this case authorized the ICC to require that rates on the Dallas-Houston run (entirely within Texas) be raised in order to equalize them with rates on the Shreveport, La.-Houston run.
Hammer v. Dagenhart. I have reprinted the entire case in the handout, but you are welcome to read the majority opinion as printed in the casebook. However, I do want you to read Justice Holmes’ dissent, in its entirety, with considerable care; we’ll parse his arguments closely.