Summary [2 of 4] of Cases Cited in Treatise, ‘The Kiss of Judice: The Constitution Betrayed’

Brandenburg v. Ohio 1969 Freedom of Speech—Brandenburg test, however, allowed government to punish the advocacy of illegal action only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

National Socialist Party v. Skokie

1977

Freedom of Speech—Nazi demonstration included in

Lewis v. City of New Orleans 1974 Freedom of Speech—Punishing a man who used four-letter words to a police officer who was arresting man, precluded by First Amendment.
Roth v. United States 1957 Freedom of Speech—Reaffirmed the longstanding view that obscenity was not covered by the First Amendment and that both state and federal obscenity laws were therefore constitutionally permissible
Jamison v. Texas 1943 Freedom of Speech—Substantive Due Process—Free Exercise—Substantive Due Process—Dallas ordinance denies to Jehovah’s Witness distribution of  literature the freedom of press and of religion guaranteed to her by the First and Fourteenth Amendments of the Federal Constitution
Mills v. Alabama 1966 Freedom of Speech—Substantive Due Process—A state statute making it a crime for a newspaper editor to publish an editorial on election day urging people to vote in a particular way flagrantly violates the First Amendment, applied to the States by the Fourteenth, a major purpose of which was to protect free discussion of governmental affairs
Herndon v. Lowry 1937 Freedom of Speech—Substantive Due Process—A state statute punishing as a crime the acts of soliciting members for a political party and conducting meetings of a local unit of that party, where one of the doctrines of the party, established by reference to a document not shown to have been exhibited to anyone by the accused, may be said to be ultimate resort to violence in the indefinite future against organized government, unwarrantably invades the liberty of free speech and so violates the Fourteenth Amendment
Gitlow v. New York 1925 Freedom of Speech—Substantive Due Process—Announced
Fiske v. Kansas 1927 Freedom of Speech—Substantive Due Process—Announced
Erzhozik v. City of Jacksonville 1965 Freedom of Speech—Substantive Due Process—Drive-In theatre laws voided. A Jacksonville, Fla., ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, held facially invalid as an infringement of First Amendment rights.
Texas v. Johnson 1989 Freedom of Speech—Substantive Due Process—Flag-burning held freedom of speech
Mayberry v. Pennsylvania 1970 Freedom of Speech—Substantive Due Process—Four-letter words to a judge in a courtroom will sustain his conviction
Kingsley Books v. Brown 1957 Freedom of Speech—Substantive Due Process—Free speech is not to be regulated like diseased cattle and impure butter
Grosjean v. American Press Co 1936 Freedom of Speech—Substantive Due Process—Invalidated a license tax on the business of selling advertising imposed by Louisiana on all newspapers with a circulation of more than twenty thousand copies per week
Whitney v. California 1927 Freedom of Speech—Substantive Due Process—Rejected In 1919 California passed a criminal syndicalism law designed to restrict the activities of the Industrial Workers of the World (IWW), a union long active in the state’s agricultural fields and lumber camps. The statute prohibited advocacy of changes in the system of industrial ownership or political control. Upheld the California statute on the basis of the state’s power to protect the public from violent political action

West Virginia State Board of Education v. Barnette

1943

Freedom of Speech—Substantive Due Process—The action of a state in making it compulsory for children in the public schools to salute the flag and pledge allegiance — by extending the right arm, palm upward, and declaring, I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all — violates the First and Fourteenth Amendments

Wooley v. Maynard 1977 Freedom of Speech—Substantive Due Process—The State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. New Hampshire’s statute, by forcing an individual, as part of his daily life – indeed constantly while his automobile is in public view – to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, invades the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control, Board of Education v. Barnette
Memoirs of a Woman of Pleasure v. Massachusetts 1966 Freedom of Speech—Substantive Due Process—Under the test in Roth v. United States, as elaborated in subsequent cases, each of three elements must independently be satisfied before a book can be held obscene: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value
Mt. Healthy District Board of Education v. Doyle 1977 Freedom of Speech—Substantive Due Process—Untenured plaintiff’s free speech claims were not defeated because of his lack of tenure. If the employee can show that the firing was reprisal for his exercise of his free speech rights, he may not be fired. He doesn’t need a contract
Rosenfield v. New Jersey 1972 Freedom of Speech—Substantive Due Process—Use of four-letter word at school board meet held free speech

Schenck v. United States

1919

Freedom of Speech—Yelling fire in crowded theatre not protected free speech

Andrews v. Andrews 1903 Full Faith & Credit—Divorce decreed in another state or country by a court having jurisdiction of the cause and both the parties shall be valid and effectual in the Commonwealth, but if an inhabitant of Massachusetts goes into another state or country to obtain a divorce for a cause which occurred in Massachusetts while the parties resided there, or for a cause which would not authorize a divorce by the laws of Massachusetts, a divorce so obtained shall have no force or effect
Stoll v. Gottlieb 1938 Full Faith & Credit—Federal courts must grant full faith and credit to state court judgments, and vice versa
St. John v. Wisconsin Employment Relations Board 1951

Full Faith & Credit—Federal courts must grant full faith and credit to state court judgments, and vice versa

Mills v. Duryee 1813 Full Faith & Credit—Judgment rendered in one state or territory generally has conclusive effect in other states or territories. The court in the original state must have had jurisdiction, and the requirements of due process must have been satisfied. Also, the original judgment must have been on the merits and it must have been final
Hampton v. McConnell 1818 Full Faith & Credit—Judgment rendered in one state or territory generally has conclusive effect in other states or territories. The court in the original state must have had jurisdiction, and the requirements of due process must have been satisfied. Also, the original judgment must have been on the merits and it must have been final
Baker v. General Motors Corp. 1998 Full Faith & Credit—Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments
Franchise Tax Bd. of Cal. v. Hyatt 2003 Full Faith & Credit—Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. Baker v. General Motors Corp.
Smithsonian Institution v. St. John 1909 Full Faith & Credit—State constitutional provision a public act
Chicago & Alton R.R. v. Wiggins Ferry Co. 1887 Full Faith & Credit—Statutes are public acts
United States v. Butler 1936 General Welfare—Adopted Hamilton view that the clause is a power
Helvering v. Davis 1937 General Welfare—Social Security proper enactment
Hurtado v. California 1884 Grand Jury Indictment—Substantive Due Process—Rejected
Irvin v. Dowd 1961 Impartial Jury—Substantive Due Process—Announced
Turner v. Louisiana 1965 Impartial Jury—Substantive Due Process—Announced
Hyde v. U.S 1912 Jurisprudence—It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis, said Holmes
Cramer v. United States 1945 Jurisprudence—What a man is up to may be clear from considering his bare acts by themselves (Jackson)

Wickwire v. Reinecke

1927

Jury Trial in Civil Cases—Substantive Due Process—Not recognized in federal tax cases

Minneapolis & St. L. R.R. v. Bombolis 1916 Jury Trial in Civil Cases—Substantive Due Process—Rejected
Atlas Roofing Co. v. OSHRC 1977 Jury Trial in Civil Cases—Substantive Due Process—The Seventh Amendment does not prevent Congress from assigning to an administrative agency the task of adjudicating violations of OSHA. When Congress creates new statutory public rights, it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be preserved in suits at common law. That Amendment was never intended to establish the jury as the exclusive mechanism for factfinding in civil cases, but took the existing legal order as it found it, and hence there is little or no basis for now interpreting it as providing an impenetrable barrier to administrative factfinding under otherwise valid federal regulatory statutes
Duncan v. Louisiana 1968 Jury trial—Substantive Due Process— Announced
Chicago B. & Q. R.R. v. City of Chicago 1897 Just Compensation—Substantive Due Process—Announced
Reid v. Covert 1957 Military Rules Power—The power of Congress under Art. I, § 8, cl. 14, of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces,” taken in conjunction with the Necessary and Proper Clause, does not extend to civilians — even though they may be dependents living with servicemen on a military base
Clarke v. Bazadone 1803 Necessary & Proper—All agree that the original jurisdiction of the Supreme Court is defined and limited by the Constitution, and that it can neither be extended nor restricted by an act of Congress, and it is equally undeniable that the appellate jurisdiction of that tribunal is granted subject to such exceptions and regulations as the Congress may make, from which it follows that appellate jurisdiction can only be exercised by the Supreme Court in such cases and to such extent as the acts of Congress authorize.
Missouri v. Holland 1920 Necessary & Proper—Allows measures requisite to discharge the treaty obligations of the nation
McCulloch v. Maryland 1819 Necessary & Proper—Bank was a convenient, useful, and essential instrument in the implementation of the nation’s fiscal policies
United States v. Hall 1879 Necessary & Proper—Congress can punish fraudulent conversion by guardian of ward of U.S. pension
United States v. Marigold 1850 Necessary & Proper—Congress can punish the bringing of counterfeit bonds into the country
Motes v. United States 1900 Necessary & Proper—Congress has power to criminalize conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States

Murray’s Lessee v. Hoboken Land & Improvement Co.

1856 Necessary & Proper—Congress has power to utilize all known and appropriate means for collecting the revenue, including the distraint of property for federal taxes
Pacific R.R. Removal Cases 1885 Necessary & Proper—Congress held to have authority to charter a railroad corporation
Norman v. Baltimore & O. R.R. 1935 Necessary & Proper—Congress may abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed
Railway Company v. Whitton 1872 Necessary & Proper—Congress may authorize the removal before trial of civil cases arising under the laws of the United States
Pittman v. Home Owners’ Corp. 1939 Necessary & Proper—Congress may confer upon corporations private powers, which, standing alone, have no relation to the functions of the federal government, if those privileges are essential to the effective operation of such corporations
Osborn v. Bank of the United States 1824 Necessary & Proper—Congress may confer upon national banks private powers, which, standing alone, have no relation to the functions of the federal government, if those privileges are essential to the effective operation of such corporations
Clallam County v. United States 1923 Necessary & Proper—Congress may create corporations to manufacture aircraft
Luxton v. North River Bridge Co. 1894 Necessary & Proper—Congress may establish a corporation to construct an interstate bridge
Detroit Trust Co. v. The Thomas Barlum 1934 Necessary & Proper—Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction
National Bank v. United States 1880 Necessary & Proper—Congress may impose a prohibitive tax upon the circulation of the notes of municipal corporations
Bank of the United States v. Halstead 1825 Necessary & Proper—Congress may make all laws necessary for carrying into execution judgments of federal courts
Embry v. Palmer 1883 Necessary & Proper—Congress may prescribe the effect to be given to judicial proceedings of the federal courts
United States v. Worrall 1798 Necessary & Proper—Congress may punish attempt to bribe federal official
Nortz v. United States 1935 Necessary & Proper—Congress may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold
Jinks v. Richland County 2003 Necessary & Proper—Congress may require the tolling of a state statute of limitations while a state cause of action that is supplemental to a federal claim is pending in federal court
United States v. Fox 1877 Necessary & Proper—Congress’s power power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded
Durousseau v. The United States 1810 Necessary & Proper—Established rule is that the affirmative description of the cases in which the jurisdiction may be exercised implies a negative on the exercise of such power in all other cases
United States v. More 1805 Necessary & Proper—Federal Judicial Power—Affirmative description of the cases in which the jurisdiction may be exercised implies a negative on the exercise of such power in all other cases. Restated in Tennessee v. Davis (dissenting)
Rhode Island v. Massachusetts 1838 Necessary & Proper—Federal Judiciary Article—Delineated only the great outlines of the judicial power , leaving the details to Congress, the distribution and appropriate exercise of the judicial power must be made by laws passed by Congress
Tennessee v. Davis 1880 Necessary & Proper—For the exercise of the jurisdiction conferred by Article III, § 2, Congress may direct the removal from a state to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law
Ex parte Bakelite Corp. 1929 Necessary & Proper—In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and clothe them with functions deemed essential or helpful in carrying those powers into execution
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. 1982 Necessary & Proper—In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and clothe them with functions deemed essential or helpful in carrying those powers into execution
Legal Tender Cases 1870 Necessary & Proper—Inasmuch as every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power. The Legal Tender Cases stand for the proposition that the United States can compel creditors to receive its paper money in payment of debt. These cases also raised the issue of whether the Constitution is to be applied pursuant to the original understanding or judicially amended for unforeseen exigencies. The cases also illustrate that whenever a Supreme Court decision is at odds with the Constitution, the result may well be irreversible and beyond judicial overruling, legislative recall, or possibly formal constitutional amendment
Neely v. Henkel 1901 Necessary & Proper—Includes measures requisite to discharge the treaty obligations of the nation
United States v. Waddell 1884 Necessary & Proper—Includes punishing conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States
United States v. Mosley 1915 Necessary & Proper—Includes punishing conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States
Gelston v. Hoyt 1818 Necessary & Proper—It is certainly against the general theory of our institutions to create great discretionary powers by implication
Knickerbocker Ice Co. v. Stewart 1920 Necessary & Proper—Maritime law jurisdiction cannot be delegated to the States; hence, acts of Congress that purported to make state workmen’s compensation laws applicable to maritime cases were held unconstitutional
Logan v. United States 1892 Necessary & Proper—No one doubts the power of Congress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the States of the Union or within territory over which Congress has plenary and exclusive jurisdiction
Ex parte Curtis 1882 Necessary & Proper—Receipt by Government officials of contributions from Government employees for political purposes held a federal crime
Washington v. Dawson & Co. 1924 Necessary & Proper—Struck down acts of Congress that purported to make state workmen’s compensation laws applicable to maritime cases
Smith v. Kansas City Title Co. 1921 Necessary & Proper—Sustained act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositories of public funds, was merely a pretext for chartering those banks for private purposes
Kohl v. United States 1876 Necessary & Proper—Sustained congress’s power to acquire property needed for the operation of the Government by the exercise of the power of eminent domain
Knox v. Lee 1871 Necessary & Proper—Sustained power of Congress to make Treasury notes legal tender in satisfaction of antecedent debts
Juilliard v. Greenman 1884 Necessary & Proper—Sustained the issuance of treasury notes impressed with the quality of legal tender in payment of private debts
Gold Clause Cases 1935 Necessary & Proper—Sustained the power of Congress to regulate the monetary system
Ling Su Fan v. United States 1910 Necessary & Proper—The power to coin money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses by defacement, melting or exportation
Rakes v. United States 1909 Necessary & Proper—Upheld act punishing conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States
Ex parte Carll 1883 Necessary & Proper—Upheld ban on counterfeit U.S. bonds
California v. Pacific R.R. 1888 Necessary & Proper—Upheld congress’s power to charter raliroad corporations
Genesee Chief v. Fitzhugh 1851 Necessary & Proper—Upheld congressional expansion of admiralty jurisdiction far beyond what English precedent and the Court’s earlier decisions had permitted, so as to include all major navigable waters
Sabri v. United States 2004 Necessary & Proper—Upheld imposition of criminal penalties for bribery of state and local officials administering programs receiving federal funds
Sinclair v. United States 1929 Necessary & Proper—Upheld law directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the Government by fraud and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation
Ex parte Yarbrough 1884 Necessary & Proper—Upheld law making criminal any conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States
In re Quarles and Butler 1895 Necessary & Proper—Upheld law prohibiting conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States
Pope v. United States 1944 Necessary & Proper—Upheld private acts conferring jurisdiction upon the Court of Claims, after it had denied recovery, to hear and determine certain claims of a contractor against the Government
United States v. Barnow 1915 Necessary & Proper—Upheld statute prohibiting impersonation of a federal officer with intent to defraud
Express Co. v. Kountze Bros. 1869 Necessary & Proper—When a territory is admitted as a State, Congress may designate the court to which the records of the territorial courts shall be transferred and may prescribe the mode for enforcement and review of judgments rendered by those courts
First National Bank v. Fellows ex rel. Union Trust Co. 1917 Necessary & Proper—Where necessary to meet the competition of state banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business
Missouri ex rel. Burnes National Bank v. Duncan 1924 Necessary & Proper—Where necessary to meet the competition of state banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business
United States v. Curtiss-Wright Corp. 1936 Necessary & Proper—Whether implied federal power exists depends on whether the power is necessary and proper to carry into effect an express grant. Investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution rather these powers vested in the Federal government as a necessary concomitant of nationality
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