Footnotes Vol. 3, The Kiss of Judice fns. 1-999 (In Progress)

Note: With the later footnotes, the reader will see that the background is in red and the hyperlinks don’t appear unless one places the cursor over the spot where the hyperlink would appear. Sorry. We will see if that can be corrected.

[1] ⊗ Martin v. Hunter’s Lessee, http://www.answers.com/topic/martin-v-hunter-s-lessee, 14 U.S. 304 (1816), http://laws.findlaw.com/us/14/304.html

2 “When a suit is brought and determined in a court which has no jurisdiction, then it is said to be coram non judice, and the judgment is void.” Black’s Law Dictionary, 5th 305.

3 The work is now on the internet @ http://www.answers.com/library/US%20Supreme%20Court.

4 Alexander Pope, “An Essay on Criticism”, Part Third, Lines 309-310.

5 Also to guarantee all persons, citizens or not, due process and equal protection.

6 Here is a list of members of congress who on July 4th, 1776, voted in favor of adoption of the Declaration and later signed it:

New Hampshire:

Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts:

John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island:

Stephen Hopkins, William Ellery

Connecticut:

Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York:

William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey:

Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania:

Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware:

Caesar Rodney, George Read, Thomas McKean

Maryland:

Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia:

George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina:

William Hooper, Joseph Hewes, John Penn

South Carolina:

Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia:

Button Gwinnett, Lyman Hall, George Walton

From http://www.ushistory.org/declaration/document/

7 Federalist 41@ http://www.constitution.org/fed/federa41.htm.

8 Federalist 83 @ http://www.constitution.org/fed/federa83.htm.

9 “Report on Manufactures”, http://www.constitution.org/ah/rpt_manufactures.pdf

10Writings of Madison, Vol. 3, 1816-1828, p. 483 AFL.

11 Story, Commentaries §906 http://www.constitution.org/js/js_314.htm.

12 http://www.answers.com/topic/united-states-v-butler, United States v. Butler, 297 U.S. 1 (1936) @ http://supreme.justia.com/us/297/1/case.html.

13 We save the issues created by “common defense” for another time. Certainly there is evidence that congress has used that part of the clause liberally, as justification for other legislative overreaching.

14 “These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defense and ‘general welfare.’ The terms ‘general welfare’ were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise numerous exigencies incident to the affairs of a nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues should have been restricted within narrower limits than the ‘general welfare’ and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.” Report on Manufactures. http://american_almanac.tripod.com/hammanuf.htm

15 http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1908&chapter=112366&layout=html#a_2329175

16 http://www.answers.com/topic/united-states-v-butler, 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

17 http://www.answers.com/topic/dred-scott-case, 60 U.S. 393 (1857) @ http://laws.findlaw.com/us/60/393.html

18 http://www.answers.com/topic/roe-v-wade, 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

19 http://www.answers.com/topic/united-states-v-butler, 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

20 http://www.answers.com/topic/helvering-v-davis-1, Helvering v. Davis, 301 U.S. 619 (1937) @ http://laws.findlaw.com/us/301/619.html

See also Steward Machine Co. v. Davis, 301 U.S. 548 (1937) @ http://laws.findlaw.com/us/301/548.html, about which the Oxford Companion reports:

Oxford Companion: One of the centerpieces of the New Deal was the Social Security Act of 1935. Among other things, this law established mechanisms to provide for unemployment compensation and old age benefits.

In Steward Machine Company v. Davis the unemployment compensation feature of the law was upheld 5 to 4, and in the companion case of Helvering v. Davis the old age benefits provisions were sustained by a more comfortable 7‐to‐2 majority. Justice Benjamin Cardozo wrote both opinions.

In Steward, the Court held that the payroll tax on employers that generated the revenue to fund Social Security’s unemployment compensation was constitutionally permissible under Article I, section 8, which grants Congress the power “to lay and collect taxes . . . to . . . provide . . . for the General Welfare of the United States.” In contrast to the majority opinion in United States v. Butler (1936)—decided prior to Justice Owen Roberts’s switch to the liberal side—Cardozo and the Court’s majority in Steward refused to read the 10th Amendment as a restriction on Congress’s taxing and spending power. http://www.answers.com/topic/steward-machine-co-v-davis. Article by John W. Johnson

21 http://www.answers.com/topic/helvering-v-davis-1, Helvering v. Davis, 301 U.S. 619 (1937) @ http://laws.findlaw.com/us/301/619.html

22 Federalist 41@ http://www.constitution.org/fed/federa41.htm

23http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1908&chapter=112366&layout=html#a_2329175

24 Jefferson’s Opinion on the Constitutionality of a National Bank (1791) @ http://www.constitution.org/mon/tj-bank.htm

25 “[A]t one’s pleasure”; it is often shortened to “ad lib” http://en.wikipedia.org/wiki/Ad_libitum

26 3 Writings of Thomas Jefferson 147–149 (Library Edition, 1904) @ http://www.gpoaccess.gov/constitution/pdf2002/011.pdf

27 The story is told of Story that he was so strong a nationalist that as a circuit judge, he absorbed “jurisdiction as a sponge took up water,” and some claimed that “if a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.” http://tinyurl.com/cbqf5eu

28 Story, Commentaries §906 @http://www.constitution.org/js/js_314.htm

29 See http://www.historycooperative.org/journals/lhr/23.2/dauber1.html. The case was a “legal tour de force by Assistant Solicitor General Alger Hiss, most relevantly for the principle that ‘Congressional application of the term ‘general welfare‘ cannot be . . . subject to judicial review.’”

30 Jefferson’s Opinion on the Constitutionality of a National Bank (1791) @ http://www.constitution.org/mon/tj-bank.htm

31 §12

32 “[T]he war of all against all”. Hobbes @ http://en.wikipedia.org/wiki/Bellum_omnium_contra_omnes

33 Bergh 15:40 (1816) @ http://tinyurl.com/74l8cmw

34 See, e.g., http://www.answers.com/topic/buckley-v-valeo, Buckley v. Valeo, 424 U.S. 1, 90–91 (1976) @ http://laws.findlaw.com/us/424/1.html @ http://www.answers.com/topic/south-dakota-v-dole. South Dakota v. Dole, 483 U.S. 203, 207 n. 2 (1987) @ http://laws.findlaw.com/us/483/203.html Buckley: “[T]he Court fully upheld . . . new provisions for public funding of presidential campaigns. These provisions include income tax check-off funds for parties to conduct presidential nominating conventions, for presidential primary candidates (on a matching basis), and for presidential general election candidates (on a virtually full‐funding basis). Such funding, the Court held, is within Congress’s power to spend under the General Welfare Clause . . . .” http://www.answers.com/topic/buckley-v-valeo

Oxford Companion article by Leon D. Epstein

Dole: “Congress is reasonably free to place “noncoercive” restrictions on its expenditures of funds, including requirements that recipients of federal moneys act or refrain from acting in certain ways. This is true whether the recipient is a state government (as, for example, in South Dakota v. Dole, 1987, which required the states to adopt a minimum drinking age of twenty-one years or forfeit a small portion of their federal highway funds) or a private individual.” http://www.answers.com/topic/taxing-and-spending-clause

 Oxford Companion article by William Lasser.

35 Black & White Cab v. Brown & Yellow Cab, 276 U.S. 518 (1928) (dissenting) @ http://laws.findlaw.com/us/276/518.html

36 §3.313

37 Federalist 36 http://www.constitution.org/fed/federa36.htm.

38 Federalist 21 @ http://www.constitution.org/fed/federa21.htm.

39 Federalist 21 @ http://www.constitution.org/fed/federa21.htm. In the same vein Hamilton wrote of the “signal advantage of taxes on articles of consumption that they contain in their own nature a security against excess. They prescribe their own limit, which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty that, ‘in political arithmetic, two and two do not always make four.’ If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them. Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country.” Federalist 21@ http://www.constitution.org/fed/federa21.htm.

40 Second Inaugural Address, Bergh 3:376 (1805), Real Jefferson, p. 247 AFL.

41 Bergh 13:42 (1811), Real Jefferson, p. 640 AFL.

42 The rule: direct Taxes shall be apportioned among the several States … according to their respective Numbers. Article 1, §3.

43 Federalist 21@ http://www.constitution.org/fed/federa21.htm.

44 Federalist 21@ http://www.constitution.org/fed/federa21.htm.

45 Story, Familiar Exposition §156 @ http://tinyurl.com/9jwa2q7

46 Story, Familiar Exposition §156 @ http://tinyurl.com/9jwa2q7

47 Note the distinction made between “commerce” and agriculture and manufacturing, signifying that commerce is neither agriculture nor manufacturing, an important point when it comes to defining the meaning of commerce in the commerce clause.

48 Story, Familiar Exposition §157@ http://tinyurl.com/9jwa2q7

49 Capitation taxes are upon the person. Black’s Law Dictionary, 5th 191.

50 U.S. Const., Art. 1, §3.

51 U.S. Const., Art. 1, §9, Cl. 4.

52 462 U.S. 74 (1983) @ http://laws.findlaw.com/us/462/74.html

53 462 U.S. 74 (1983) @ http://laws.findlaw.com/us/462/74.html

54 Johnson, Dictionary of the English Language, 4th Edition: “Uniformly

55 Also the 9th Amendment’s incorporation of the Declaration’s principle of the right to equal treatment before the law prohibits any sort of tax discrimination.

56 Warren, Charles, The Supreme Court in United States History, Little, Brown, (1922), p. 501, quoted in Berger, Federalism—The Founders’ Design, University of Oklahoma Press (1987), p. 121.

57 “Abstraction and Authority,” The Bill of Rights in the Modern State, Stone, Geoffrey R., Epstein, Richard A., and Sunstein, Cass R., Eds., University of Chicago Press (1992), p. 350.

58 Federalist 40 @ http://www.constitution.org/fed/federa40.htm.

59  Federalist 42 @ http://www.constitution.org/fed/federa42.htm.

60 Familiar Exposition, p. 140 @ http://tinyurl.com/9jwa2q7

61 Articles of Confederation, Article 4, @ http://www.law.ou.edu/ushistory/artconf.shtml

62 §3.331 et seq.

63 Federalist 45 @ http://www.constitution.org/fed/federa45.htm.

64 The Constitution of the United States, Analysis and Interpretation, Library of Congress, U.S. Government Printing Office, Washington (2002), p. 169. http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-8-2.pdf

65 Federalist 11@ http://www.constitution.org/fed/federa11.htm.

66 Federalist 40 @http://www.constitution.org/fed/federa40.htm.

67 Story, Commentaries §1071, http://www.constitution.org/js/js_315.htm.

68 To Albert Gallatin, 13 Oct. 1802, http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces10.html.

69 Federalist 22 @ http://www.constitution.org/fed/federa22.htm.

70 Story, Familiar Exposition §171@ http://tinyurl.com/9jwa2q7

71 §12.11

72 Story, Familiar Exposition §164 @ http://tinyurl.com/9jwa2q7

73 On the evils of protective duties, see Tyranny Unmasked, Col. Taylor’s indictment of them @ http://www.constitution.org/jt/tyr_un.htm.

74 Story, Familiar Exposition §172 @ http://tinyurl.com/9jwa2q7

75 Federalist 11 http://www.constitution.org/fed/federa11.htm.

76 Federalist 42 http://www.constitution.org/fed/federa42.htm.

77Story, Familiar Exposition, http://tinyurl.com/9jwa2q7

78 Articles of Confederation §9 http://www.constitution.org/cons/usa-conf.htm.

79 Federalist 42 @ http://www.constitution.org/fed/federa42.htm.

80 Federalist 42 @ http://www.constitution.org/fed/federa42.htm.

81 Story, Commentaries §1094 @ http://www.constitution.org/js/js_315.htm.

82 Story, Commentaries §1094 @ http://www.constitution.org/js/js_315.htm.

83 Story, Commentaries §1095 @ http://www.constitution.org/js/js_315.htm.

84 Story, Familiar Exposition §164 @ http://tinyurl.com/9jwa2q7

85 Article 1, §8, Cl. 3.

86 Someone ought do a study of how much the misinterpretation of each clause has cost the taxpayers.

87 http://oll.libertyfund.org/title/757/87233/1995613

88 http://www.answers.com/topic/national-labor-relations-board-v-jones-laughlin-steel-corp, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). http://laws.findlaw.com/us/301/1.html

89 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). http://laws.findlaw.com/us/310/381.html

90 United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942). http://laws.findlaw.com/us/315/110.html

91 http://www.answers.com/topic/wickard-v-filburn @ Wickard v. Filburn, 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html

92 Kirschbaum v. Walling, 316 U.S. 517 (1942). http://laws.findlaw.com/us/316/517.html

93 Radovich v. National Football League, 352 U.S. 445 (1957) @ http://laws.findlaw.com/us/352/445.html

94 United States v. International Boxing Club, 348 U.S. 236 (1955) @ http://laws.findlaw.com/us/348/236.html

95 United States v. Shubert, 348 U.S. 222 (1955) @ http://laws.findlaw.com/us/348/222.html

96 Associated Press v. United States, 326 U.S. 1 (1945). http://laws.findlaw.com/us/326/1.html

97 Caminetti v. United States, 242 U.S. 470 (1917) @ http://laws.findlaw.com/us/242/470.html

98 Hoke v. United States, 227 U.S. 308 (1913). http://laws.findlaw.com/us/227/308.html

99 Cleveland v. United States, 329 U.S. 14 (1946) @ http://laws.findlaw.com/us/329/14.html

100 United States v. Simpson, 252 U.S. 465 (1920) @ http://laws.findlaw.com/us/252/465.html

101 Gooch v. United States, 297 U.S. 124 (1936) @ http://laws.findlaw.com/us/297/124.html

102 Brooks v. United States, 267 U.S. 432 (1925) @ http://laws.findlaw.com/us/267/432.html

103 Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954) @ http://laws.findlaw.com/us/347/672.html

104 Walton v. Southern Package Corp., 320 U.S. 540 (1944) @ http://laws.findlaw.com/us/320/540.html

105 Armour & Co. v. Wantock, 323 U.S. 126 (1944) @ http://laws.findlaw.com/us/323/126.html

106 Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (1946) @ http://laws.findlaw.com/us/327/173.html

107 Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207 (1959) @ http://laws.findlaw.com/us/358/207.html

108 Perez v. United States, 402 U.S. 146 (1971) @ http://laws.findlaw.com/us/402/146.html

109 New York, N.H. & H.R. Co. v. Nothnagle, 346 U.S. 128 (1953) @ http://laws.findlaw.com/us/346/128.html

110 http://www.answers.com/topic/heart-of-atlanta-motel-v-united-states, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) @ http://laws.findlaw.com/us/379/241.html

111 United States v. Sullivan, 332 U.S. 689 (1948) @ http://laws.findlaw.com/us/332/689.html

112 Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (1953) @ http://laws.findlaw.com/us/346/482.html

113 NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963) @ http://laws.findlaw.com/us/371/224.html

114 Russell v. United States, 471 U.S. 858 (1985) @ http://laws.findlaw.com/us/471/858.html

115 http://www.answers.com/topic/katzenbach-v-mcclung, Katzenbach v. McClung, 379 U.S. 294 (1964) @ http://laws.findlaw.com/us/379/294.html

116 Daniel v. Paul, 395 U.S. 298 (1969) @ http://laws.findlaw.com/us/395/298.html

Here’s a short history of some key commerce clause decisions:

Oxford Companion: Development of the Commerce Power @ http://www.answers.com/topic/commerce-power

Kidd v. Pearson, 128 U.S. 1 (1888) @ [http://supreme.justia.com/cases/federal/us/128/1/case.html]. anufacturing of goods, such as liquor, is not commerce. Congress cannot regulate such manufacturing as interstate commerce. http://www.answers.com/topic/kidd-v-pearson

Champion v. Ames, 188 U.S. 321 (1903) [@ http://laws.findlaw.com/us/188/321.html]. Congress may use its power to regulate commerce to outlaw the interstate sale and shipment of lottery tickets [http://www.answers.com/topic/champion-v-ames].

McCray v. United States, 195 U.S. 27 (1904) [@ http://laws.findlaw.com/us/195/27.html]. Congress may regulate the sale of oleomargarine (a butter substitute) by placing a high tax on it. This decision, along with Champion, strengthened Congress’s ability to use the commerce power as a regulatory power for the public good [@ http://www.answers.com/topic/mccray-v-united-states%5D.

Swift and Co. v. United States, 196 U.S. 375 (1905) [@ http://laws.findlaw.com/us/196/375.html]. The Court announces the “stream of commerce” doctrine. The meatpacking industry is part of a “stream of commerce” from the time an animal is purchased until it is processed and sold as meat. Congress could regulate at any point along that “stream.” The “stream of commerce” doctrine became a basic legal concept in the expansion of the federal commerce power [@ http://www.answers.com/topic/swift-co-v-united-states].

Adair v. United States, 208 U.S. 161 (1908) [@ http://laws.findlaw.com/us/208/161.html]. Labor relations do not directly affect interstate commerce. Thus, Congress cannot use the commerce power to prohibit certain kinds of labor contracts [@ http://www.answers.com/topic/adair-v-united-states%5D.

Shreveport Rate Cases, 234 U.S. 342 (1914) [@ http://supreme.justia.com/cases/federal/us/234/342/case.html]. Court announces the “Shreveport doctrine.” The federal government has power to regulate rail rates within states (intrastate) as well as between states (interstate). This sets the key precedent that whenever intrastate and interstate transactions (such as rail rates) become so related that regulation of one involves control of the other, Congress–not the states–has final authority [@ http://www.answers.com/topic/shreveport-rate-case].

Hammer v. Dagenhart, 247 U.S. 251 (1918) [@ http://laws.findlaw.com/us/247/251.html]. Congress may not use the commerce power as a police power to regulate working conditions for child laborers or to prohibit the use of children in factories [@ http://www.answers.com/topic/hammer-v-dagenhart].

Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) [@ http://laws.findlaw.com/us/259/20.html]. Congress may not use its police power to place a high tax on the profits of companies employing child laborers. This decision, along with Hammer in 1918, greatly narrowed the federal police power. With these two decisions, the Court frustrated attempts by Congress to end child labor [@ http://www.answers.com/topic/bailey-v-drexel-furniture-co].

Railroad Retirement Board v. Alton Railroad, 295 U.S. 330 (1935) [@ http://laws.findlaw.com/us/295/330.html]. The commerce clause does not give Congress the power to set up a pension system for railroad workers.

Carter v. Carter Coal Co., 298 U.S. 238 (1936) [@ http://laws.findlaw.com/us/298/238.html]. Mining is not commerce and does not affect commerce directly. Thus, Congress may not regulate labor relations in the coal mining industry. [@ http://www.answers.com/topic/carter-v-carter-coal-company].

National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) [@ http://laws.findlaw.com/us/301/1.html]. Congress may regulate labor relations in manufacturing to prevent possible interference with interstate commerce. With this decision, which overturned the Adair and Carter decisions, the Court gave up the narrow view of Congress’s power to regulate commerce it had followed for many years. The Court based its decision on precedents set in the Swift and Shreveport cases [@ http://www.answers.com/topic/national-labor-relations-board-v-jones-laughlin-steel-corp].

Mulford v. Smith, 307 U.S. 38 (1939) [@ http://laws.findlaw.com/us/307/38.html]. The commerce power gives Congress the authority to regulate market quotas for agricultural production. That is, Congress has the power to limit the amount of a product transported via interstate commerce [@ http://www.answers.com/topic/mulford-v-smith].

United States v. Darby Lumber Co., 312 U.S. 100, 312 U.S. 657 (1941) [@ http://laws.findlaw.com/us/312/100.html]. Congress may use its commerce power to prohibit from interstate commerce goods made under substandard labor conditions. This decision overturns the Hammer decision [@ http://www.answers.com/topic/united-states-v-darby-lumber-co-1]

Wickard v. Filburn, 317 U.S. 111 (1942) [@ http://laws.findlaw.com/us/317/111.html]. Congress may regulate agricultural production affecting interstate commerce even if the produce is not meant for sale [@ http://www.answers.com/topic/wickard-v-filburn].

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) [@ http://laws.findlaw.com/us/379/241.html]. Congress may regulate agricultural production affecting interstate commerce even if the produce is not meant for sale [@ http://www.answers.com/topic/heart-of-atlanta-motel-v-united-states].

National League of Cities v. Usery, 426 U.S. 833 (1976) [@ http://laws.findlaw.com/us/426/833.html]. Congress cannot use its commerce power to establish wage and hour standards for state and local government employees [@ http://www.answers.com/topic/national-league-of-cities-v-usery].

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) [@ http://laws.findlaw.com/us/469/528.html]. Neither the 10th Amendment nor any other provision of the Constitution can be interpreted to limit the commerce power of Congress over the state governments. Thus, federal laws on minimum wages and overtime pay can be applied to workers of a transit system owned and operated by the city of San Antonio, Texas. This decision overruled National League of Cities v. Usery [@ http://www.answers.com/topic/garcia-v-san-antonio-metropolitan-transit-authority].

United States v. Lopez, 514 U.S. 549 (1995) [@ http://laws.findlaw.com/us/000/u10287.html]. The Court overturned a Federal law banning individuals from carrying a gun near a school. According to a 5–4 majority of the Court, the statute extended beyond the constitutional power of the federal government to regulate interstate commerce [@ http://www.answers.com/topic/united-states-v-lopez].

Reno v. Condon, 528 U.S. 141 (2000)[1] [@ http://laws.findlaw.com/us/000/98-1464.html]. The Supreme Court upheld the Driver’s Privacy Protection Act against a challenge from South Carolina as a constitutional use of Congress’s commerce power. This federal law bars states from releasing personal information about licensed motor vehicle drivers without their consent. Thus, federal statutory protection of an individual’s privacy rights outweighed states’ rights in this case.”

117 http://www.answers.com/topic/commerce-power

118 http://www.answers.com/topic/national-labor-relations-board-v-jones-laughlin-steel-corp, 301 U.S. 1 (1937) @ http://laws.findlaw.com/us/301/1.html

119 http://www.answers.com/topic/united-states-v-darby-lumber-co-1 @ 312 U.S. 100, 312 U.S. 657 (1941) @ http://laws.findlaw.com/us/301/1.html

120 http://www.answers.com/topic/hammer-v-dagenhart, 247 U.S. 251 (1918) @ http://laws.findlaw.com/us/247/251.html

121 http://www.answers.com/topic/wickard-v-filburn, 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html

122 http://www.answers.com/topic/wickard-v-filburn, 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html

123 http://www.answers.com/topic/garcia-v-san-antonio-metropolitan-transit-authority, Garcia v. San Antonio Metropolitan. Transit Authority, 469 U.S. 528 (1985) http://laws.findlaw.com/us/469/528.html

124 http://www.answers.com/topic/united-states-v-e-c-knight-co, 156 U.S. 1 (1895) @ http://laws.findlaw.com/us/156/1.html. Oxford Companion: In the first case to arise under the Sherman Antitrust Act, United States v. E. C. Knight Co. (1895), the government attempted to dissolve a monopoly of sugar processing, charging the American Sugar Refining Company was illegally restraining trade across state lines. The fact that an article was manufactured for export to another state, said the Court, did not make it part of interstate commerce. http://www.answers.com/topic/commerce-power

125 Berger, Federalism, p. 62.

126 http://www.answers.com/topic/united-states-v-butler, 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

127 http://www.answers.com/topic/helvering-v-davis-1, 301 U.S. 619 (1937) @ http://laws.findlaw.com/us/301/619.html

128 SeePastoral Republican” @ http://wp.me/sD41z-7. “The General Welfare Clause: How a Constitutional Restraint Was Transformed Into a Constitutional Power”.

129 73 Virginia L. Rev. 8, pp. 1393-94 (1987) @ http://findarticles.com/p/articles/mi_hb3243/is_n4_60/ai_n28686894/pg_19/

130 Federalist № 11. In other places in the Federalist, Hamilton sets commerce apart from manufacturing: “The state of commerce, of arts, of industry.” (№ 21) @ http://www.constitution.org/fed/federa21.htm In № 36, Hamilton refers to “commerce” in contradistinction to “manufacturing” and “agriculture”. http://www.constitution.org/fed/federa36.htm

Hamilton’s definition of commerce was picked up by Chief Justice Marshall in the first of the great commerce clause cases, http://www.answers.com/topic/gibbons-v-ogden, Gibbons v. Ogden, 22 U.S. 1, (1824): “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by proscribing rules for carrying on that intercourse.” @ http://laws.findlaw.com/us/22/1.html

131 Federalist 40 @ http://www.constitution.org/fed/federa40.htm In № 42 @ http://www.constitution.org/fed/federa42.htm, he classified the power to regulate foreign commerce as within a class of powers he described in № 41 as “[r]egulation of the intercourse with foreign nations”. http://www.constitution.org/fed/federa41.htm. And in № 42 he referred to the power to regulate interstate commerce within the class of powers “which provide for the harmony and proper intercourse among the states.” http://www.constitution.org/fed/federa42.htm

132 № 53. http://www.constitution.org/fed/federa53.htm

133 Johnson, Dictionary of the English Language, 3rd Ed. (1765).

134 “Judicial Verbicide: An Affront to the Constitution”, Modern Age, The First Twenty-Five Years, Panichas, George, Ed., Liberty Press, (1988), p. 455.

135 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584)

136 http://www.answers.com/topic/gibbons-v-ogden 22 U.S. (9 Wheat.) 1, 188-189 (1824) @ http://supreme.justia.com/cases/federal/us/22/1/ (“We know of no rule for construing the extent of such powers, other than is given by the language which confers them, taken in connection with the purposes for which they were conferred.”)

137 Blackstone, Commentaries @ http://www.constitution.org/tb/tb-1103.htm

138 http://www.constitution.org/fed/federa42.htm

139 22 @ http://www.constitution.org/fed/federa22.htm

140 Berger, Federalism, p. 132.

141 Hamilton, Federalist 11 @ http://www.constitution.org/fed/federa11.htm

142 http://www.constitution.org/fed/federa42.htm

143 Federalist 22 @ http://www.constitution.org/fed/federa22.htm. In Federalist 12, Hamilton continues to speak of commerce primarily in terms of foreign trade: “If . . . there be but one government pervading all the states, there will be, as to the principal part of our commerce, but ONE SIDE to guard—the ATLANTIC COAST.” (By “guard”, he means against contraband trade for which no duties are collected.) @ http://www.constitution.org/fed/federa12.htm

144 Federalist 11 @ http://www.constitution.org/fed/federa11.htm

145 http://www.constitution.org/fed/federa45.htm

146 http://www.constitution.org/fed/federa14.htm

147 № 17 @ http://www.constitution.org/fed/federa17.htm

148 № 39 @ http://www.constitution.org/fed/federa39.htm

149 http://www.constitution.org/fed/federa40.htm

150 http://www.constitution.org/fed/federa45.htm

151 http://www.constitution.org/fed/federa46.htm

152 http://www.constitution.org/fed/federa31.htm

153 Berger, Federalism, pp. 56-57.

154 http://www.answers.com/topic/united-states-v-lopez, 514 U.S. 549 (1995) @ http://laws.findlaw.com/us/514/549.html

155 http://www.answers.com/topic/united-states-v-morrison, 529 U.S. 598 (2000) @ http://laws.findlaw.com/us/529/598.html

156 http://www.bartleby.com/110/757.html

157 http://www.answers.com/topic/commerce-power.

Oxford Companion article by Robert J. Steamer.

158 22 U.S. 1 (1820) @ http://laws.findlaw.com/us/22/1.html

159 27 U.S. 245 (1829) @ http://laws.findlaw.com/us/27/245.html

160 See §2.102 et seq.

161 §12.3

162 §16.33 et seq.

163 http://www.answers.com/topic/commerce-power

164 27 U.S. 245 (1829) @ http://laws.findlaw.com/us/27/245.html

165 §12.7

166 http://www.answers.com/topic/commerce-power

167 http://www.answers.com/topic/cooley-v-board-of-wardens, 53 U.S. 299 (1851) @ http://laws.findlaw.com/us/53/299.html

168 Selective Exclusiveness: Oxford Companion: In Cooley v. Board of Wardens (1852) 53 U.S. 299 (1851) [http://laws.findlaw.com/us/53/299.html], a case involving a Pennsylvania pilotage law, the Court held that the power to regulate interstate commerce was not granted exclusively to the national government. In the Court’s view, although some aspects of commerce necessitated uniform national rules established by Congress, other areas compelled diversity among the states and require state regulation. The Court, Justice Benjamin R. Curtis stated, needed to assess state regulations of commerce on a case‐by‐case basis, in order to decide whether the issue in question required uniformity or diversity. This notion of the “selective exclusiveness” of congressional power under the Commerce Clause did not definitively solve the problem of allocating state and federal power over commerce. It did, however, mark a shift in the Court’s approach to the issue, away from arguments over the relative sovereignty of the federal and state governments * * * and toward a more pragmatic and economically realistic view of commercial regulation. http://www.answers.com/topic/selective-exclusiveness

169 http://www.answers.com/topic/commerce-power

170 94 U.S. 164 (1877) @ http://bulk.resource.org/courts.gov/c/US/94/94.US.164.html

171 http://www.answers.com/topic/wabash-st-louis-pacific-railway-co-v-illinois-1, 118 U.S. 557 (1886) @ http://supreme.justia.com/cases/federal/us/118/557/

172 http://www.answers.com/topic/commerce-power

173325 U.S. 761, 767

174 303 U.S. 177 (1938) @ http://laws.findlaw.com/us/303/177.html

175 http://www.answers.com/topic/commerce-power

176 437 U.S. 617 (1978) @ http://laws.findlaw.com/us/437/617.html

177 http://www.answers.com/topic/commerce-power

178 447 U.S. 429 (1980) @ http://laws.findlaw.com/us/447/429.html

179 There is also a privileges and immunities clause in the 14th Amendment which prohibits commerce discrimination between citizens of the same state. “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.

180 http://www.answers.com/topic/commerce-power

181 514 U.S. 175 (1995) @ http://laws.findlaw.com/us/514/175.html

182 The related provisions are found in Article 1, §10.

183 http://www.answers.com/topic/commerce-power

184 http://supreme.justia.com/cases/federal/us/511/383/

185 http://www.answers.com/topic/commerce-power

186 520 U.S. 564 (1997) @ http://supreme.justia.com/cases/federal/us/520/564/

187 http://www.answers.com/topic/commerce-power.

Oxford Companion article by Robert J. Steamer.

188 §16.33 et seq.

189 §12.5 et seq.

190 “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

191 §12.71

192 §12.8

193 Black’s Law Dictionary (1910), p. 609 @ http://books.google.com/books?id=R2c8AAAAIAAJ&dq=

194 Black’s Law Dictionary (1910), p. 417

195 Black’s Law Dictionary (1910), p. 596 @ http://books.google.com/books?id=R2c8AAAAIAAJ&dq=

196 Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997) (dissenting) @ http://supreme.justia.com/cases/federal/us/520/564/

197 http://www.answers.com/topic/brown-v-maryland, 25 U.S. 419 (1827) @ https://supreme.justia.com/cases/federal/us/25/419/case.html

198 http://www.answers.com/topic/brown-v-maryland, 25 U.S. 419 (1827) @ http://laws.findlaw.com/us/25/419.html

199 “Impost”: “A duty on imported goods or merchandise.” (p. 596). “Duty . . . denotes a tax or impost due to the government upon the importation or exportation of goods.” (p. 418). Black’s Law Dictionary (1910) @ http://books.google.com/books?id=R2c8AAAAIAAJ&dq=

200 Black’s Law Dictionary (1910), p. 472 @ http://books.google.com/books?id=R2c8AAAAIAAJ&dq=

201.[1] http://en.wikipedia.org/wiki/Sales_taxes_in_the_United_States

202.[1] U.S. Const., Article 1, §9.

203.[1] http://www.whitehouse.gov/sites/default/files/omb/budget/fy2012/assets/receipts.pdf

204.[1] http://www.answers.com/topic/commerce-power

205.[1] http://www.answers.com/topic/champion-v-ames, 188 U.S. 321 (1903) @ http://laws.findlaw.com/us/188/321.html

206.[1] http://www.answers.com/topic/champion-v-ames, 188 U.S. 321 (1903) @ http://laws.findlaw.com/us/188/321.html

207.[1] Citing Douglas v. Kentucky, 168 U.S. 488 @ http://laws.findlaw.com/us/168/488.html

208.[1] http://www.answers.com/topic/commerce-power

209.[1] 227 U.S. 308 (1913) @ http://laws.findlaw.com/us/227/308.html

210.[1] 267 U.S. 432 (1925) @ http://laws.findlaw.com/us/267/432.html

211.[1] http://www.answers.com/topic/hammer-v-dagenhart, 247 U.S. 251 (1918) @ http://laws.findlaw.com/us/247/251.html

212.[1] §13.102

213.[1] http://www.answers.com/topic/united-states-v-darby-lumber-co-1, United States v. Darby Lumber Co. 312 U.S. 100, 312 U.S. 657 (1941) @ http://laws.findlaw.com/us/301/1.html

214.[1] http://www.constitution.org/fed/federa80.htm

215.[1] Story, Familiar Exposition §409 @ http://tinyurl.com/9jwa2q7

216.[1] http://www.constitution.org/cons/usa-conf.htm

217.[1] Bergh 3:149 (1791), Real Jefferson, pp. 380-381

218.[1] §3.318

219.[1] See Federalist 44 @ http://www.constitution.org/fed/federa44.htm

220.[1] Federalist 33 @ http://www.constitution.org/fed/federa33.htm.

221.[1] Federalist 33 @ http://www.constitution.org/fed/federa33.htm.

222.[1] Federalist 33 @ http://www.constitution.org/fed/federa33.htm.

223.[1] Federalist № 33 @ http://www.constitution.org/fed/federa33.htm.

224.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

225.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

226.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

227.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

228.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

229.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

230.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

231.[1] “[A] negative implying also an affirmative.” Black’s Law Dictionary 5th 930.

232.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

233.[1] “Of the same kind, class, or nature.” Black’s Law Dictionary 5th at 464

234.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

235.[1] Federalist 44 @ http://www.constitution.org/fed/federa44.htm.

236.[1] Story, Familiar Exposition §207 @ http://tinyurl.com/9jwa2q7

237.[1] Story, Familiar Exposition §208 @ http://tinyurl.com/9jwa2q7

238.[1] Suitable: “Fit and appropriate for the end in view.” Black’s Law Dictionary 5th 1286. “That is fitted for, adapted or appropriate to a person’s character, condition, needs, etc., a purpose, object, occasion, or the like.” Oxford English Dictionary. Proper: “Suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right.” Oxford English Dictionary. “That which is fit, suitable, adapted, correct.” Black’s Law Dictionary 5th 1094. Appropriate: “Specially fitted or suitable, proper.” Oxford English Dictionary. [Undefined in Black’s Law Dictionary.]

239.[1] Necessary: “Indispensable, vital, essential; requisite.” Oxford English Dictionary. Black’s Law Dictionary 5th 928 gives the term “necessary” multiple meanings including (incorrectly) “appropriate, suitable, proper.”

240.[1] §1.001

241.[1] Story, Familiar Exposition §208 @ http://tinyurl.com/9jwa2q7

242.[1] §13.8

243.[1] §13.9

244.[1] Story, Familiar Exposition §209 @ http://tinyurl.com/9jwa2q7

245.[1] U.S. Const., Article 1, §9.

246.[1] Indeed even the modern U.S. Supreme Court agrees here. In United States v. Curtiss-Wright Corp., 299 U.S. 304, 316 (1936) @ http://laws.findlaw.com/us/299/304.html the court said whether implied federal power exists depends on whether the power is “necessary and proper to carry into effect” an express grant. Professor Berger notes Mr. J. Story’s statement in Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 332-333 (1818) @ http://supreme.justia.com/us/16/246/case.html that “it is certainly against the general theory of our institutions to create great discretionary powers by implication.” Federalism, p. 96.

247.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

248.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

249.[1]  http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

250.[1] On monopolies, see §13.6 et seq.

251.[1]  http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

252.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

253.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

254.[1] “Capital punishments” as related to national banks seems a little harsh, but . . .

255.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

256.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

257.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

258.[1] Except perhaps in the District of Columbia and other federal enclaves over which the federal government has exclusive legislative power under Article 1, §8, Cl. 17. However that legislative power is still subject to the limitations in the Bill of Rights.

259.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

260.[1] http://press-pubs.uchicago.edu/founders/documents/a1_8_18s9.html

261.[1] http://www.constitution.org/mon/ah-bank.htm

262.[1] For the full Jefferson Opinion, see https://douglassbartley.wordpress.com/2012/03/24/mr-jeffersons-opinion-on-the-constitutionality-of-a-national-bank-1791/

263.[1] http://www.constitution.org/mon/tj-bank.htm

264.[1] For the full Hamilton Opinion, see http://www.constitution.org/mon/ah-bank.htm

265.[1] http://www.constitution.org/mon/tj-bank.htm

266.[1] http://www.constitution.org/mon/tj-bank.htm

267.[1] http://www.constitution.org/mon/ah-bank.htm

268.[1] http://www.constitution.org/mon/tj-bank.htm

269.[1] http://www.constitution.org/mon/ah-bank.htm

270.[1] U.S. Const., Article 1, §8, Cl. 3

271.[1] “[A]t one’s pleasure”; it is often shortened to “ad lib” http://en.wikipedia.org/wiki/Ad_libitum

272.[1] http://www.constitution.org/mon/tj-bank.htm

273.[1] Jefferson’s Opinion on the Constitutionality of a National Bank (1791) @ http://www.constitution.org/mon/tj-bank.htm

274.[1] http://www.constitution.org/mon/tj-bank.htm

275.[1] Black’s Law Dictionary, 5th 1052

276.[1] Bergh 13:327 (1813), Real Jefferson p. 560

277.[1] http://www.constitution.org/mon/ah-bank.htm

278.[1] U.S. Const., Article 4, §3, Cl. 2

279.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

280.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

281.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

282.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

283.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

284.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

285.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

286.[1] Tucker, St. George. Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Excerpt from http://press-pubs.uchicago.edu/founders/documents/a1_8_18s12.html

287.[1] http://www.answers.com/topic/mcculloch-v-maryland

288.[1] http://www.answers.com/topic/mcculloch-v-maryland

289.[1] §2.10 et seq.

290.[1] http://www.answers.com/topic/mcculloch-v-maryland

291.[1] https://douglassbartley.wordpress.com/2011/09/04/madisons-report-of-1799-on-the-virginia-resolutions-with-synopsis/

292.[1] http://www.answers.com/topic/mcculloch-v-maryland

293.[1] To James Madison. Ford 7:37 (1795.)

294.[1] http://www.answers.com/topic/mcculloch-v-maryland

295.[1] http://www.answers.com/topic/mcculloch-v-maryland

296.[1] Johnson’s Dictionary, 4th Ed.

297.[1] Johnson’s Dictionary, 4th Ed.

298.[1] http://www.answers.com/topic/mcculloch-v-maryland

299.[1] http://www.answers.com/topic/mcculloch-v-maryland

300.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

301.[1] http://www.answers.com/topic/mcculloch-v-maryland

302.[1] http://www.answers.com/topic/mcculloch-v-maryland

303.[1] James Madison to Spencer Roane

2 Sept. 1819 Writings 8:447–53

I have recd. your favor of the 22d Ult inclosing a copy of your observations on the Judgment of the Supreme Court of the U. S. in the case of M’Culloch agst. the State of Maryland; and I have found their latitudinary mode of expounding the Constitution, combated in them with the ability and the force which were to be expected.

It appears to me as it does to you that the occasion did not call for the general and abstract doctrine interwoven with the decision of the particular case. I have always supposed that the meaning of a law, and for a like reason, of a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not these from a previous and abstract comment on the subject. The example in this instance tends to reverse the rule and to forego the illustration to be derived from a series of cases actually occurring for adjudication.

I could have wished also that the Judges had delivered their opinions seriatim. The case was of such magnitude, in the scope given to it, as to call, if any case could do so, for the views of the subject separately taken by them. This might either by the harmony of their reasoning have produced a greater conviction in the Public mind; or by its discordance have impaired the force of the precedent now ostensibly supported by a unanimous & perfect concurrence in every argument & dictum in the judgment pronounced.

But what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned. In the great system of Political Economy having for its general object the national welfare, everything is related immediately or remotely to every other thing; and consequently a Power over any one thing, if not limited by some obvious and precise affinity, may amount to a Power over every other. Ends & means may shift their character at the will & according to the ingenuity of the Legislative Body. What is an end in one case may be a means in another; nay in the same case, may be either an end or a means at the Legislative option. The British Parliament in collecting a revenue from the commerce of America found no difficulty in calling it either a tax for the regulation of trade, or a regulation of trade with a view to the tax, as it suited the argument or the policy of the moment.

Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified Power?

Does not the Court also relinquish by their doctrine, all controul on the Legislative exercise of unconstitutional powers? According to that doctrine, the expediency & constitutionality of means for carrying into effect a specified Power are convertible terms; and Congress are admitted to be Judges of the expediency. The Court certainly cannot be so; a question, the moment it assumes the character of mere expediency or policy, being evidently beyond the reach of Judicial cognizance.

It is true, the Court are disposed to retain a guardianship of the Constitution against legislative encroachments. “Should Congress,” say they, “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.” But suppose Congress should, as would doubtless happen, pass unconstitutional laws not to accomplish objects not specified in the Constitution, but the same laws as means expedient, convenient or conducive to the accomplishment of objects entrusted to the Government; by what handle could the Court take hold of the case? We are told that it was the policy of the old Government of France to grant monopolies, such as that of Tobacco, in order to create funds in particular hands from which loans could be made to the Public, adequate capitalists not being formed in that Country in the ordinary course of commerce. Were Congress to grant a like monopoly merely to aggrandize those enjoying it, the Court might consistently say, that this not being an object entrusted to the Governt. the grant was unconstitutional and void. Should Congress however grant the monopoly according to the French policy as a means judged by them to be necessary, expedient or conducive to the borrowing of money, which is an object entrusted to them by the Constitution, it seems clear that the Court, adhering to its doctrine, could not interfere without stepping on Legislative ground, to do which they justly disclaim all pretension.

It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter; more especially those which divide legislation between the General & local Governments; and that it might require a regular course of practice to liquidate & settle the meaning of some of them. But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro’ which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification. It has been the misfortune, if not the reproach, of other nations, that their Govts. have not been freely and deliberately established by themselves. It is the boast of ours that such has been its source and that it can be altered by the same authority only which established it. It is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself. It is anxiously to be wished therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted. If the powers be deficient, the legitimate source of additional ones is always open, and ought to be resorted to.

Much of the error in expounding the Constitution has its origin in the use made of the species of sovereignty implied in the nature of Govt. The specified powers vested in Congress, it is said, are sovereign powers, and that as such they carry with them an unlimited discretion as to the means of executing them. It may surely be remarked that a limited Govt. may be limited in its sovereignty as well with respect to the means as to the objects of his powers; and that to give an extent to the former, superseding the limits to the latter, is in effect to convert a limited into an unlimited Govt. There is certainly a reasonable medium between expounding the Constitution with the strictness of a penal law, or other ordinary statute, and expounding it with a laxity which may vary its essential character, and encroach on the local sovereignties with wch. it was meant to be reconcilable.

The very existence of these local sovereignties is a controul on the pleas for a constructive amplification of the powers of the General Govt. Within a single State possessing the entire sovereignty, the powers given to the Govt. by the People are understood to extend to all the Acts whether as means or ends required for the welfare of the Community, and falling within the range of just Govt. To withhold from such a Govt. any particular power necessary or useful in itself, would be to deprive the people of the good dependent on its exercise; since the power must be there or not exist at all. In the Govt. of the U. S. the case is obviously different. In establishing that Govt. the people retained other Govts. capable of exercising such necessary and useful powers as were not to be exercised by the General Govt. No necessary presumption therefore arises from the importance of any particular power in itself, that it has been vested in that Govt. because tho’ not vested there, it may exist elsewhere, and the exercise of it elsewhere might be preferred by those who alone had a right to make the distribution. The presumption which ought to be indulged is that any improvement of this distribution sufficiently pointed out by experience would not be withheld.

Altho’ I have confined myself to the single question concerning the rule of interpreting the Constitution, I find that my pen has carried me to a length which would not have been permitted by a recollection that my remarks are merely for an eye to which no aspect of the subject is likely to be new. I hasten therefore to conclude with assurances &c &c.” http://press-pubs.uchicago.edu/founders/documents/a1_8_18s15.html

304.[1] Quote from J. Robert Jackson: “[The court] sat almost as a continuous constitutional convention which, without submitting its proposals to any ratification or rejection, could amend the basic law.” Jackson, Struggle for Judicial Supremacy, New York, N.Y. (1941), pp. x-xi.

305.[1] http://www.answers.com/topic/mcculloch-v-maryland

306.[1] http://www.answers.com/topic/mcculloch-v-maryland

307.[1] Oxford Companion article by Richard E. Ellis

Bibliography: Gerald Gunther, ed., John Marshall’s Defense of McCulloch v. Maryland (1969). Bray Hammond, Banks and Politics in America from the Revolution to the Civil War (1957). Harold J. Plous and Gordon E. Baker, McCulloch v. Maryland: Right Principle, Wrong Case, Stanford Law Review 9 (1957): 710–739. G. Edward White, History of the Supreme Court of the United States, vols. 3–4, The Marshall Court and Cultural Change, 1815–35 (1988)

308.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

309.[1] §1.001

310.[1] “In limine”: “on or at the threshold; at the very beginning”, Black’s Law Dictionary 5th at 708

311.[1] Berger, Government by Judiciary, The Transformation of the 14th Amendment, Harvard University Press, Cambridge, Mass., (1977) 2nd Ed. pp. 296-97 @ http://oll.libertyfund.org/title/675/106953/2250980 on 2012-08-10 Justice Gibson’s statement is found in Eakin v. Raub, 12 S. & R. 330 (Pa. 1825) @ http://www.enotes.com/american-court-cases/eakin-v-raub.

312.[1] Black’s Law Dictionary 5th 254.

313.[1] Swift, Jonathan, “A Voyage to the Country of the Houyhnhnms”, pt. 4, ch. 5, Gulliver’s Travels (1726) @ http://books.google.com/books?id=n8oVAAAAYAAJ&dq=%22a+maxim+among+lawyers %22+Swift&source=gbs_navlinks_ p. 200.

314.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

315.[1] §5.32

316.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

317.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

318.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

319.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

320.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

321.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

322.[1] U.S. Const., Article 1, §8

323.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

324.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

325.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

326.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

327.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

328.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

329.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

330.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

331.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

332.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

333.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

334.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

335.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

336.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

337.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

338.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

339.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

340.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

341.[1] Andrew Jackson, Veto Message (1836), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html

342.[1] Stone, Geoffrey et al, Constitutional Law, Little Brown & Co., Boston, Toronto, London (1991) 2nd Ed., p. lxxi.

343.[1] Stone, Geoffrey et al, Constitutional Law, Little Brown & Co., Boston, Toronto, London (1991) 2nd Ed., p. lxxi.

344.[1] Story, Commentaries §1238 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

345.[1] Story, Commentaries §1239 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

346.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

347.[1] Johnson’s Dictionary, 4th Ed.

348.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

349.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

350.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

351.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

352.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

353.[1] Johnson’s Dictionary, 4th Ed.

354.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

355.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

356.[1] See Index under “Commerce Power”

357.[1] Story, Commentaries §1240 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

358.[1] Story, Commentaries §1241 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

359.[1] §12.111 et seq.

360.[1] Story, Commentaries §1242 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

361.[1] Story, Commentaries §1242 @ http://press-pubs.uchicago.edu/founders/print_documents/a1_8_18s21.html

362.[1] Story, Commentaries §1242 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

363.[1] §2.1025 et seq.

364.[1] Story, Commentaries §1243 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

365.[1] Story, Commentaries §1244 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

366.[1] Story, Commentaries §1244 @ http://press-pubs.uchicago.edu/founders/print_documents/a1_8_18s21.html

367.[1] Story, Commentaries §1245 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

368.[1] U.S. Const., Article 1, §8, Cl. 17.

369.[1] Counterfeiting and piracy: U.S. Const., Article 1, §8. Treason: Article 3, §3.

370.[1] Black’s Law Dictionary (1910) @ http://books.google.com/books?id=R2c8AAAAIAAJ&dq= p. 468.

371.[1] St. George Tucker, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_10s6.html.

372.[1] Story, Commentaries §1246 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

373.[1] Potestas strict intepretur. Black’s Law Dictionary, 5th Ed. 1052.

374.[1] Story, Commentaries §1247 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

375.[1] https://douglassbartley.wordpress.com/2011/09/04/madisons-report-of-1799-on-the-virginia-resolutions-with-synopsis/

376.[1] Story, Commentaries §1248 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

377.[1] Story, Commentaries §1249 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

378.[1] Story, Commentaries §1249 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

379.[1] Story, Commentaries §1250 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

380.[1] Story, Commentaries §1251 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

381.[1] Story, Commentaries §1251 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

382.[1] Story, Commentaries §1251 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

383.[1] “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

384.[1] “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.”

385.[1] Story, Commentaries §1252 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

386.[1] Story, Commentaries §1253 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

387.[1] Story, Commentaries §1254 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

388.[1] Story, Commentaries §1255 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

389.[1] Story, Commentaries §1256 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

390.[1] “September 14. “Question. To grant letters of incorporation for canals, et cetera; negatived. To establish a university; negatived.”

September 14. “Question. To grant letters of incorporation for canals, et cetera; negatived. To establish a university; negatived.” From Taylor, New Views http://www.constitution.org/jt/jtnvc.htm

391.[1] Story, Commentaries §1257 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

392.[1] Story, Commentaries §1258 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

393.[1] Story, Commentaries §1259 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

394.[1] Story, Commentaries §1260 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

395.[1] Story, Commentaries §1261 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

396.[1] Story, Commentaries §1262 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

397.[1] Story, Commentaries §1263 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

398.[1] Story, Commentaries §1264 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

399.[1] Story, Commentaries §1265 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

400.[1] Story, Commentaries §1266 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

401.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

402.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

403.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

404.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

405.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

406.[1] U.S. Const., Article 1, §8, Cl. 1

407.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

408.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

409.[1] Taylor, Constitutions Construed and Constitutions Vindicated @ http://www.constitution.org/jt/cccv.htm

410.[1] Story, Commentaries §1267 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

411.[1] Story, Commentaries §1268 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

412.[1] Story, Commentaries §1268 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

413.[1] See Index under “Commerce Power”

414.[1] Story, Commentaries §1268 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

415.[1] Story, Commentaries §1268 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

416.[1] Story, Commentaries §1269 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

417.[1] Congress shall have power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;

418.[1] Story, Commentaries §1270 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

419.[1] Story, Commentaries §1270 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

420.[1] Story, Commentaries §1271 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html.

421.[1] Story, Commentaries §1272 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

422.[1] Story, Commentaries §1272 @ http://press-pubs.uchicago.edu/founders/print_documents/a1_8_18s21.html

423.[1] Story, Commentaries §1273 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

424.[1] Story, Commentaries §1274 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

425.[1] Story, Commentaries §1275 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

426.[1] Story, Commentaries §1276 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

427.[1] See Index under “Separation of Powers”

428.[1] Story, Commentaries §1277 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

429.[1] Story, Commentaries §1278 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

430.[1] Story, Commentaries §1279 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

431.[1] Story, Commentaries §1280 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

432.[1] Story, Commentaries §1281 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

433.[1] Story, Commentaries §1282 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

434.[1] Story, Commentaries §1283 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

435.[1] U.S. Const., Article 1, §10.

436.[1] Annals of Congress, Senate, 8th Congress, 1st Session @ http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=013/llac013.db&recNum=2 , p. 49 et seq.

437.[1] Annals of Congress, Senate, 8th Congress, 1st Session @ http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=013/llac013.db&recNum=2 , p. 49 et seq.

438.[1] Annals of Congress, Senate, 8th Congress, 1st Session @ http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=013/llac013.db&recNum=2 , p. 49 et seq.

439.[1] Annals of Congress, Senate, 8th Congress, 1st Session @ http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=013/llac013.db&recNum=2 , p. 49 et seq.

440.[1] Annals of Congress, Senate, 8th Congress, 1st Session @ http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=013/llac013.db&recNum=2 , p. 49 et seq.

441.[1] Story, Commentaries §1285 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

442.[1] Story, Commentaries §1286 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

443.[1] Story, Commentaries §1287 @ http://press-pubs.uchicago.edu/founders/documents/a1_8_18s21.html

444.[1] http://en.wikipedia.org/wiki/Embargo_Act_of_1807

445.[1] McCulloch v. Maryland @ 17 U.S. 316 (1819). http://www.answers.com/topic/mcculloch-v-maryland, http://laws.findlaw.com/us/17/316.html

446.[1] From an article @ http://law.onecle.com/constitution/article-1/49-necessary-and-proper-clause.html

447.[1] Neely v. Henkel @ 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920).

448.[1] See discussion of “Commerce Clause” under the commerce power

449.[1] §12

450.[1] Murray’s Lessee v. Hoboken Land & Improvement Co. @ 59 U.S. (272, 281 (1856). Congress may also legislate to protect its spending power. Sabri v. United States, 124 S. Ct. 1941 (2004) (upholding imposition of criminal penalties for bribery of state and local officials administering programs receiving federal funds).

451.[1] See Index under “Federal Taxing Power”

452.[1] Kohl v. United States @ 91 U.S. 367, 373 (1876); United States v. Fox, 94 U.S. 315, 320 (1877).

  1. 453.                       [1] The boxed material below. including the article’s originally-numbered footnotes, are from “Fiscal and Monetary Powers of Congress”: Clauses 5 and 6. The Congress shall have Power * * * To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures. * * * To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.

The power “to coin money” and “regulate the value thereof” has been broadly construed to authorize regulation of every phase of the subject of currency. Congress may charter banks and endow them with the right to issue circulating notes,1369 and it may restrain the circulation of notes not issued under its own authority.1370 To this end it may impose a prohibitive tax upon the circulation of the notes of state banks1371 or of municipal corporations.1372 It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.1373 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,”1374 the Supreme Court sustained the power of Congress to make Treasury notes legal tender in satisfaction of antecedent debts,1375 and, many years later, to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.1376 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.1377

Footnotes:

1369 McCulloch v. Maryland @ 17 U.S. (4 Wheat.) 316 (1819).

1370 Veazie Bank v. Fenno @ 75 U.S. (8 Wall.) 533 (1869).

1371 75 U.S. 548.

1372 National Bank v. United States @ 101 U.S. 1 (1880).

1373 Nortz v. United States @ 249 U.S. 317 (1935).

1374 Legal Tender Cases (Knox v. Lee) @ 79 U.S. (12 Wall.) 457, 549 (1871); Juilliard v. Greenman @ 110 U.S. 421, 449 (1884).

1375 Legal Tender Cases (Knox v. Lee) @ 79 U.S. (12 Wall.) 457 (1871).

1376 Norman v. Baltimore & O. R.R. @ 294 U.S. 240 (1935).

1377 Ling Su Fan v. United States @ 218 U.S. 302 (1910).

454 United States v. Fox, 95 U.S. 670, 672 (1978) @ http://laws.findlaw.com/us/95/670.html (obtaining of goods on false credit); United States v. Hall, 98 U.S. 343, 357 (1879) (fraudulent conversion by guardian of ward of U.S. pension); United States v. Worrall, 2 U.S. (2 Dall. ) 384, 394 (1798) (attempt to bribe federal official); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (under commerce clause, congress not limited to prescribing punishment for crimes not constitutionally-enumerated). That this power has been freely exercised is attested by the pages of the United States Code devoted to Title 18, entitled “Criminal Code and Criminal Procedure.” In addition numerous regulatory measures in other titles prescribe criminal penalties.

455 St. George Tucker, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_10s6.html

456  [1] Black’s Law Dictionary (1910) @ http://books.google.com/books?id=R2c8AAAAIAAJ&q=expressio+unius#v=snippet&q=expressio%20unius&f=false

457  [1] Ex parte Carll @ 106 U.S. 521 (1883) (forgery of U.S. bonds).

458  [1] United States v. Marigold @ 50 U.S. (9 How.) 560, 567 (1850).

459  [1] Logan v. United States @ 144 U.S. 263 (1892) (“[N]o 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”).

460  [1] United States v. Barnow @ 239 U.S. 74 (1915).

461  [1] Ex parte Yarbrough @ 110 U.S. 651 (1884). United States v. Waddell @ 112 U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895) ; Motes v. United States @ 178 U.S. 458 (1900); United States v. Mosley @ 238 U.S. 383 (1915). See also Rakes v. United States @ 212 U.S. 55 (1909).

462  [1] Ex parte Curtis @ 106 U.S. 371 (1882).

463  [1] 18 U.S.C. §2385.

464  [1] See National Commission on Reform of Federal Criminal Laws, Final Report (Washington: 1970); National Commission on Reform of Federal Criminal Laws, Working Papers (Washington: 1970), 2 vols.

465  [1] Cl. 17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings

466  [1] McCulloch v. Maryland @ 17 U.S. (4 Wheat.) 316, 407 (1819).

467  [1] From Taylor, New Views @ http://www.constitution.org/jt/jtnvc.htm

468  [1] From an article @ http://law.onecle.com/constitution/article-1/49-necessary-and-proper-clause.html

469  [1] Osborn v. Bank of the United States @ 22 U.S. (9 Wheat.) 738, 862 (1824). See also Pittman v. Home Owners’ Corp. @ 308 U.S. 21 (1939).

470  [1] First National Bank v. Fellows ex rel. Union Trust Co. @ 244 U.S. 416 (1917); Missouri ex rel. Burnes National Bank v. Duncan @ 265 U.S. 17 (1924) (The power of Congress to grant such accessory functions to national banks, to sustain them in the competition of the banking business, cannot be controlled by state laws. Citing First National Bank v. Fellows., infra).

471  [1] Smith v. Kansas City Title Co. @ 255 U.S. 180 (1921).

472  [1] From an article @ http://law.onecle.com/constitution/article-1/49-necessary-and-proper-clause.html

473  [1] Juilliard v. Greenman @ 110 U.S. 421, 449 (1884). But see Justice Field’s dissent.

474  [1] Veazie Bank v. Fenno @ 75 U.S. (8 Wall.) 533 (1869).

475  [1] Juilliard v. Greenman @ 110 U.S. 421 (1884). See also Legal Tender Cases (Knox v. Lee) @ 79 U.S. (12 Wall.) 457 (1871).

476  [1] Norman v. Baltimore & Ohio R.R. @ 294 U.S. 240, 303 (1935).

477  [1] §13.2 et seq.

478  [1] 75 U.S. 533 (1869) @ http://supreme.justia.com/cases/federal/us/75/533/

479  [1] The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 2. Chapter: Thursday, August 16, 1787. Accessed from http://oll.libertyfund.org/title/1786/96058 on 2011-07-20

480  [1] http://www.constitution.org/fed/federa44.htm

481  [1] Legal Tender Cases (Knox v. Lee) @ 79 U.S. (12 Wall.) 457 (1871).

482  [1] Article 1, §8, Cl. 18: “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.”

483  [1] Article 1, §8, CL. 6.

484  [1] Article 1, §9

485  [1] http://www.answers.com/topic/legal-tender-cases: “Collective name for three cases of the 1870s: Hepburn v. Griswold, 75 U.S. 603 (1870), argued 10 Dec. 1869, decided 7 Feb. 1870 by vote of 4 to 3; Chase for the Court, Miller in dissent; and Knox v. Lee and Parker v. Davis, 79 U.S. 457 (1871)[1], argued 23 Feb. and 18 Apr. 1871, decided 1 May 1871 by vote of 5 to 4; Strong for the Court, Chase, Clifford, and Field in dissent.”

486  [1] 75 U.S. 603 (1869) @ http://supreme.justia.com/cases/federal/us/75/603/

487  [1] 79 U.S. 457 (1870) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=79&page=457

488  [1] 75 U.S. 603 (1869) @ http://supreme.justia.com/cases/federal/us/75/603/

489  [1] 29 U.S. 410 (1830) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=29&page=410

490  [1] 79 U.S. 457 (1870) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=79&page=457

491  [1] http://www.answers.com/topic/gold-clause-cases. Oxford Companion: Gold Clause Cases (1935), common collective name for three companion cases of the New Deal era: Norman v. Baltimore & Ohio R.R. 294 U.S. 240; Nortz v. United States, 294 U.S. 317 and Perry v. United States, 294 U.S. 330. All three argued 8–11 Jan. 1935, decided 18 Feb. 1935 by votes of 5 to 4; Hughes for the Court, McReynolds in dissent in each case. Oxford Companion article by James W. Ely, Jr.

492  [1] McReynolds apparently made the Nero remark out of court. It does not appear in the opinion.

493  [1] http://www.answers.com/topic/gold-clause-cases.

494  [1] See McReynolds’s dissent @ http://laws.findlaw.com/us/294/240.html.

495  [1] Federalist No. 44 @ http://www.constitution.org/fed/federa44.htm

496  [1] http://law.onecle.com/constitution/article-1/38-fiscal-and-monetary-powers.html#01

497  [1] Pacific R.R. Removal Cases @ 115 U.S. 1 (1885); California v. Pacific R.R. @ 127 U.S. 1, 39 (1888).

498  [1] Luxton v. North River Bridge Co. @ 153 U.S. 525 (1894).

499  [1] Clallam County v. United States @ 263 U.S. 341 (1923).

500  [1] Sloan Shipyards v. United States Fleet Corp. @ 258 U.S. 549 (1922). We should note that this case involved an act of incorporation from the District of Columbia, over which the federal government has general legislative powers under Article 1, §8, Cl. 17, though I don’t know whether that makes any difference in the result.

501  [1] Rhode Island v. Massachusetts @ 37 U.S. (12 Pet.) 657, 721 (1838).

502  [1] Tennessee v. Davis @ 100 U.S. 257, 263 (1880).

503  [1] http://supreme.justia.com/cases/federal/us/5/212/

504  [1] Citing Wiscart v. Dauchy @ 3 Dall. 321, 327]; 1 Kent, Com. (12th ed.) 324; Clarke v. Bazadone @ 1 Cranch 212.

505  [1] Citing Durousseau v. The United States @ 6 Cranch 307 @ 10 U. S. 314; United States v. More @ 3 Cranch 159, 170.

506  [1] Citing 1 Kent, Com. (12th ed.) 340.

507  [1] http://law.onecle.com/constitution/article-1/49-necessary-and-proper-clause.html

508  [1] Jinks v. Richland County @ 538 U.S. 456 (2003).

509  [1] Railway Company v. Whitton @ 80 U.S. (13 Wall.) 270, 287 (1872).

510  [1] Embry v. Palmer @ 107 U.S. 3 (1883).

511  [1] Bank of the United States v. Halstead @ 23 U.S. (10 Wheat.) 51, 53 (1825).

512  [1] Express Co. v. Kountze Bros. @ 75 U.S. (8 Wall.) 342, 350 (1869).

513  [1] Ex parte Bakelite Corp. @ 279 U.S. 438, 449 (1929). But see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. @ 458 U.S. 50 (1982).

514  [1] See Index under “Separation of Powers

515  [1] See Index under “Separation of Powers

516  [1] http://law.onecle.com/constitution/article-1/38-fiscal-and-monetary-powers.html#01

517  [1] Hayek, Constitution of Liberty, p. 153.

518  [1] http://law.onecle.com/constitution/article-1/38-fiscal-and-monetary-powers.html#01

519  [1] 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

520  [1] http://law.onecle.com/constitution/article-1/38-fiscal-and-monetary-powers.html#01

521  [1] Paramino Co. v. Marshall @ 309 U.S. 370 (1940).

522  [1] Pope v. United States @ 323 U.S. 1 (1944).

523  [1] From Wikipedia @ http://en.wikipedia.org/wiki/United_States_Court_of_Federal_Claims: “The United States Court of Federal Claims . . . is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress’s authority under Article One of the United States Constitution. Unlike judges of courts established under Article Three of the United States Constitution, judges on the Court of Federal Claims do not have life tenure. * * * Instead they serve for 15-year terms and are eligible for reappointment. The sixteen judges of the court are nominated by the President and confirmed by the Senate.” (Footnotes omitted.)

524  [1] See Index under “Separation of Powers

525  [1] http://law.onecle.com/constitution/article-1/49-necessary-and-proper-clause.html

526  [1] Detroit Trust Co. v. The Thomas Barlum @ 293 U.S. 21 (1934).

527  [1] Knickerbocker Ice Co. v. Stewart @ 253 U.S. 149 (1920). Washington v. Dawson & Co. @ 264 U.S. 219 (1924)

528  [1] U.S. Const., Article 1, Cl. 10., §3

529  [1] http://constitution.org/fed/federa72.htm

530  [1] Federalist № 75 @ http://constitution.org/fed/federa75.htm

531  [1] http://www.answers.com/topic/separation-of-powers

532  [1] Federalist №. 47 http://www.constitution.org/fed/federa47.htm

533  [1] Federalist № 48 http://www.constitution.org/fed/federa48.htm

534  [1] Bergh 8:276 (1791), Real Jefferson p. 622

535  [1] Ford 5:369 (1791), Real Jefferson p. 606

536  [1] Bergh 15:332 (1821), Real Jefferson p. 623

537  [1] Bergh 15:450 (1823), Real Jefferson p. 623

538  [1] Bergh 14:421 (1816), Real Jefferson pp. 625-26

539  [1] The Constitution, Analysis and Interpretation, p. xvii (1982 Ed.)

540  [1] Locke, Two Treatises §141 @ http://www.constitution.org/jl/2ndtr11.htm

541  [1] http://www.answers.com/topic/separation-of-powers

542  [1] http://www.answers.com/topic/separation-of-powers

543  [1] http://www.answers.com/topic/united-states-v-curtiss-wright-export-corp. 299 U.S. 304 (1936) @ http://laws.findlaw.com/us/299/304.html

544  [1] Federalist 48 @ http://www.constitution.org/fed/federa48.htm.

545  [1] Federalist 72 @ http://www.constitution.org/fed/federa72.htm.

546  [1] http://www.answers.com/topic/separation-of-powers

547  [1] http://www.answers.com/topic/separation-of-powers

548  [1] http://www.answers.com/topic/separation-of-powers

549  [1] 301 U.S. 324 (1937) @ http://laws.findlaw.com/us/301/324.html

550            [1] From an article @ http://law.onecle.com/constitution/article-2/25-domestic-obligations-of-executive-agreements.html. “Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become the ‘law of the land’ pursuant to the Supremacy Clause because such agreements are not ‘treaties’ ratified by the Senate.9 The Supreme Court, however, found another basis for holding state laws to be preempted by executive agreements, ultimately relying on the Constitution’s vesting of foreign relations power in the national government. A different view seemed to underlie the Supreme Court decision in B. Altman & Co. v. United States, in which it was concluded that a jurisdictional statute reference to ‘treaty’ encompassed an executive agreement. The idea flowered in United States v. Belmont,446 where the Court, in an opinion by Justice Sutherland, following on his Curtiss-Wright447 opinion, gave domestic effect to the Litvinov Agreement. At issue was whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The President’s act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, ‘as the sole organ’ of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation, for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds ‘in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.’448

In United States v. Pink,449 decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was “a modest implied power of the President who is the ‘sole organ of the Federal Government in the field of international relations’…. It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals…. We would usurp the executive function if we held that the decision was not final and conclusive on the courts.’”

Footnotes to Article

9 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. Willoughby, supra, 589. The State Department held the same view. 5 G. Hackworth, digest of international law 426 (1944).

445 224 U.S. 583 (1912).

446 301 U.S. 324 (1937).

447 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

448 299 U.S. 330-32.

449 315 U.S. 203 (1942)

551 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=301&invol=324

552 http://www.answers.com/topic/separation-of-powers

553 http://supreme.justia.com/cases/federal/us/252/416/ Oxford Companion: Missouri v. Holland, 252 U.S. 416 (1920), argued 2 Mar. 1920, decided 19 Apr. 1920 by vote of 7 to 2; Holmes for the Court, Van Devanter and Pitney in dissent. The state of Missouri sought to enjoin a United States game warden from enforcing federal regulations enacted pursuant to the Migratory Bird Treaty Act of 1918 on the grounds that the statute unconstitutionally interfered with rights reserved to the States under the 10th Amendment. * * * The Bird Treaty Act had been passed to fulfill United States obligations under a treaty with Great Britain to protect migratory birds. * * * Missouri appealed from lower court decisions upholding the statute’s constitutionality. An earlier federal statute to regulate the taking of migratory birds, not passed pursuant to an international treaty, had been held unconstitutional in lower courts on the grounds that the birds were owned by the states in their sovereign capacity and were therefore immune from federal regulation under the 10th Amendment.

Justice Oliver Wendell Holmes concluded that the statute was a ‘commerce’ means of executing the powers of the federal government, valid under Article I, section 8, because the United States had the authority to implement treaty obligations.

The Court held that since the treaty was valid it superseded state authority as the supreme law of the land under Article VI of the Constitution. This was so, Holmes wrote, because migratory birds did not respect national boundaries and were therefore appropriate subjects for regulation by agreement with other countries. Even if the states of the United States were capable of effectively regulating the subject, the Court found nothing in the Constitution to prohibit the federal government from acting by means of a treaty to deal with a ‘national interest of very nearly the first magnitude . . . [that] can be protected only by national action in concert with another power’ (p. 435).

Holmes’s analysis has been criticized as a bootstrap method to create new federal power by means of international treaty. Fears of an expansive application of this principle were instrumental in encouraging popular support for the ‘Bricker Amendment’ in 1953, which would have amended the constitution to provide that ‘[a] treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.’ In 1957, the Supreme Court relieved much of this public concern in Reid v. Covert, when it held that status of forces agreements between the United States and foreign countries could not deprive U.S. civilian dependents of the right to a jury trial by making them subject to military courts‐martial while they were stationed abroad. Citing Missouri v. Holland, the Court wrote, ‘To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the 10th Amendment is no barrier’ (p. 18).

The Holland opinion has become largely irrelevant because of the greatly expanded scope of national power today over all matters touching interstate or foreign commerce. But the case has continuing importance. First, the opinion contains what has come to be regarded as the classic statement of the ‘living document’ approach to constitutional interpretation in which historic practice, rather than the intent of the framers, is given primary emphasis (see Original Intent). Second, even though the controversy in this case concerned the scope of the treaty power, rather than treaty supremacy, the theory of the case has provided support for later Court decisions such as United States v. Belmont (1937) and United States v. Pink (1942) establishing the supremacy of federal executive agreements over state law.

Last, Holmes’s emphasis on the proposition that matters of international concern necessarily give rise to federal power has provided support for later holdings where the Court found that state law may be preempted, even by federal common law, whenever the state rule may interfere with the conduct of foreign affairs by the national government. Oxford Companion article by Harold G. Maier

554 Bricker Amendment, 1954 @ http://www.answers.com/topic/bricker-amendment

Oxford Companion: Congress came close to passing a constitutional amendment to limit the President’s ability to enter into executive agreements with other nations. During World War II, President Franklin D. Roosevelt conducted extensive personal diplomacy with Allied leaders, involving many executive agreements. Unlike treaties, executive agreements do not require the Senate’s advice and consent. Republicans in Congress objected to these secret agreements and sought to reverse the trend. In the 1950s, Senator John Bricker (Republican-Ohio) proposed a constitutional amendment to give Congress ‘power to regulate all executive and other agreements with any foreign power or international organization.’ Republican President Dwight Eisenhower opposed the Bricker Amendment, believing it would diminish a President’s ability to conduct foreign policy. ‘If it’s true that when you die the things that bothered you most are engraved on your skull,’ Eisenhower once remarked, ‘I am sure I’ll have there . . . the name of Senator Bricker.’ In 1954, Eisenhower convinced enough senators to reject both the Bricker Amendment and a Democratic substitute amendment, which came within one vote of passing.

Sources: Tanenbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (Ithaca, N.Y.: Cornell University Press, 1988).”

555.[1] http://www.answers.com/topic/separation-of-powers

556.[1] 453 U.S. 654 (1981) @ http://laws.findlaw.com/us/453/654.html

557.[1] “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

558.[1] http://www.answers.com/topic/separation-of-powers

559.[1] http://www.answers.com/topic/goldwater-v-carter 444 U.S. 996 (1979) @ http://laws.findlaw.com/us/444/996.html

560.[1] http://www.answers.com/topic/separation-of-powers

561.[1] Article 2, §2, Cl. 1

562.[1] §15

563.[1] http://www.answers.com/topic/separation-of-powers

564.[1] Article 2, §2, Cl. 2

565.[1] http://www.answers.com/topic/separation-of-powers

566.[1] 276 U.S. 394 (1928) @ http://supreme.justia.com/cases/federal/us/276/394/case.html

567.[1] The anti-redistribution provision: “[N]or shall private property be taken for public use, without just compensation.”

568.[1] Article 1, §8, Cl. 1

569.[1] in §11

570.[1] Also the 9th Amendment’s incorporation of the Declaration’s principle of the right to equal treatment before the law prohibits any sort of tax discrimination.

571.[1] Locke, Two Treatises §141 @ http://www.constitution.org/jl/2ndtr11.htm

572.[1] http://www.answers.com/topic/separation-of-powers

573.[1] http://www.answers.com/topic/separation-of-powers

574.[1] 293 U.S. 388 (1935) @ http://supreme.justia.com/cases/federal/us/293/388/case.html

575.[1] 295 U.S. 495 (1935) @ http://laws.findlaw.com/us/295/495.html

576.[1] §16

577.[1] http://www.answers.com/topic/panama-refining-co-v-ryan

578.[1] §12

579.[1] From the syllabus

580.[1] V1 “Prologue”

581.[1] Executive order no. 6675-A, April 13, 1934. See Schechter, 295 U.S. 521-22 @ http://laws.findlaw.com/us/295/495.html.

582.[1] Full statement: “Is the United States going to decide, are the people of this country going to decide that their Federal Government shall in the future have no right under any implied power or any court-approved power to enter into a solution of a national economic problem, but that that national economic problem must be decided only by the States? . . . We thought we were solving it, and now it has been thrown right straight in our faces. We have been relegated to the horse-and-buggy definition of interstate commerce.” President Franklin D. Roosevelt, remarks at press conference, May 31, 1935. The Public Papers and Addresses of Franklin D. Roosevelt (1935) pp. 215, 221 (1938). Monday, May 27, 1935, became known as “Black Monday.” One of the decisions the Supreme Court handed down that day was the case of Schechter Poultry Corporation v. United States, to which Roosevelt refers. From Respectfully Quoted: A Dictionary of Quotations, Washington D.C., Library of Congress (1989) http://www.bartleby.com/73/1763.html.

583.[1] Quoting from Oxford Companion @ http://www.answers.com/topic/schechter-poultry-corp-v-united-states

584.[1] http://www.answers.com/topic/separation-of-powers

585.[1] http://www.answers.com/topic/separation-of-powers

586.[1] http://www.answers.com/topic/mistretta-v-united-states-1, 488 U.S. 361 (1989) http://laws.findlaw.com/us/488/361.html

587.[1] http://www.answers.com/topic/separation-of-powers

588.[1] http://www.answers.com/topic/myers-v-united-states, 272 U.S. 52 (1926) @ http://laws.findlaw.com/us/272/52.html

589.[1] U.S. Const., Article 2, §2

590.[1] U.S. Const., Article 1, §5

591.[1] U.S. Const., Article 3, §1

592.[1] U.S. Const., Article 1, §2

593.[1] U.S. Const., Article 1, §3

594.[1] U.S. Const., Article 1, §3

595.[1] U.S. Const., Article 2, §4

596.[1] §4

597.[1] Story, Commentaries §1531 @ http://www.constitution.org/js/js_337.htm.

598.[1] Story, Commentaries §1532 @ http://www.constitution.org/js/js_337.htm.

599.[1] Story, Commentaries §1533 @ http://www.constitution.org/js/js_337.htm.

600.[1] https://douglassbartley.wordpress.com/2012/06/06/tommy-g-thompson-the-anatomy-of-a-political-murder/

601.[1] Story, Commentaries §1535 @ http://www.constitution.org/js/js_337.htm.

602.[1] Story, Commentaries §1536 @ http://www.constitution.org/js/js_337.htm.

603.[1] Story, Commentaries §1537 @ http://www.constitution.org/js/js_337.htm.

604.[1] Story, Commentaries §1538 @ http://www.constitution.org/js/js_337.htm.

605.[1] Annals of Congress, Vol. 1, col. 387, May 19, 1789.

606.[1] U.S. Const., Article 2, §3.

607.[1] Story, Commentaries §1539 @ http://www.constitution.org/js/js_337.htm.

608.[1] 5 U.S. 137 (1803) @ http://supreme.justia.com/cases/federal/us/5/137/ Story, Commentaries §1540 @ http://www.constitution.org/js/js_337.htm.

609.[1] Story, Commentaries §1548 @ http://www.constitution.org/js/js_337.htm.

610.[1] http://www.answers.com/topic/separation-of-powers

611.[1] http://www.answers.com/topic/humphrey-s-executor-v-united-states 295 U.S. 602 (1935) @ http://laws.findlaw.com/us/295/602.html

612.[1] http://www.answers.com/topic/separation-of-powers

613.[1] http://www.answers.com/topic/buckley-v-valeo @ 424 U.S. 1 (1976) http://laws.findlaw.com/us/424/1.html

614.[1] 478 U.S. 714 (1986) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=714

615.[1] http://www.answers.com/topic/separation-of-powers

616.[1] http://www.answers.com/topic/immigration-and-naturalization-service-v-chadha, 462 U.S. 919 (1983) @ http://laws.findlaw.com/us/462/919.html

617.[1] 463 U.S. 1216 (1983) http://laws.findlaw.com/us/463/1216.html

618.[1] http://www.answers.com/topic/separation-of-powers

619.[1] http://www.answers.com/topic/morrison-v-olson, 487 U.S. 654 (1988) @ http://laws.findlaw.com/us/487/654.html

620.[1] http://www.answers.com/topic/morrison-v-olson, 487 U.S. 654 (1988) @ http://supreme.justia.com/cases/federal/us/487/654/case.html#697

621.[1] The Works of the Honourable James Wilson, l. l. d, Vol.. II. Philadelphia: at the Lorenzo Press (1804) @ http://www.constitution.org/jwilson/jwilson2.doc.

622.[1] http://press-pubs.uchicago.edu/founders/print_documents/a2_2_1s12.html

623.[1] http://www.answers.com/topic/war-powers-1

624.[1] The Works of the Honourable James Wilson, l. l. d, Vol.. II. Philadelphia: at the Lorenzo Press (1804) @ http://www.constitution.org/jwilson/jwilson2.doc.

625.[1] Story, Familiar Exposition §185 @ http://tinyurl.com/9jwa2q7

626.[1] Story, Familiar Exposition §186 @ http://tinyurl.com/9jwa2q7

627.[1] Story, Commentaries §1172 @ http://www.constitution.org/js/js_321.htm.

628.[1] U.S. Const., Article 2, §2, Cl. 1.

629.[1] Federalist 74 @ http://www.constitution.org/fed/federa74.htm.

630.[1] Story, Commentaries §1485 @ http://www.constitution.org/js/js_337.htm.

631.[1] Story, Commentaries §1486 @ http://www.constitution.org/js/js_337.htm.

632.[1] U.S. Const., Article 2, §2, Cl. 1.

633.[1] Wrongly said, because, among other things, the president’s commander-in-chief powers exist in peacetime as well as in war.

634.[1] U.S. Const., Article 1, §8, Cl. 17.

635.[1] Does congress have a duty to supervise the president as commander-in-chief? That is to say, must it exercise its commander-in-chief supervision powers, or can it leave everything up to the president?

636.[1] A deputy is bound by the same rules that bind his principal.

637.[1] http://www.answers.com/topic/war-powers-1

638.[1] http://www.answers.com/topic/war-powers-1

639.[1]4 U.S. 37 (1800) @ http://supreme.justia.com/cases/federal/us/4/37/

  1. 640.             [1] Black’s Law Dictionary (1910) @ http://tinyurl.com/7fpklsq

War. A state of forcible contention; an armed contest between nations; a state of hostility between two or more nations or states. Gro. De Jur. B lib. 1. C. 1.

Every connection by force between two nations, in external matters, under the authority of their respective governments, is a public war. If war is declared in form, it is called “solemn,” and is of the perfect kind; because the whole nation is at war with another whole nation. When the hostilities are limited as respects places, persons, and things, the war is properly termed “imperfect war.” http://tinyurl.com/crsecjy

641 See Story, Commentaries §1171: Mr. J. Story: But the express power “to grant letters of marque and reprisal” may not have been thought wholly unnecessary, because it is often a measure of peace, to prevent the necessity of a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates; and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress, whenever justice is denied to him by the state, to which the party, who has done the injury, belongs. In this case the letters of marque and reprisal (words used as synonymous, the latter (reprisal) signifying, a taking in return, the former (letters of marque) the passing the frontiers in order to such taking,) contain an authority to seize the bodies or goods of the subjects of the offending state, wherever they may be found, until satisfaction is made for the injury. This power of reprisal seems indeed to be a dictate almost of nature itself, and is nearly related to, and plainly derived from that of making war. It is only an incomplete state of hostilities, and often ultimately leads to a formal denunciation of war, if the injury is unredressed, or extensive in its operations.

642 There is nothing in the Constitution that suggests a war declaration cannot be vetoed.

643.[1] http://www.answers.com/topic/war-powers-1.

644.[1] 67 U.S. 635 (1863) @ http://supreme.justia.com/us/67/635/case.html

645.[1] http://www.answers.com/topic/war-powers-1.

Prize Cases. [A]rgued 10–13, 16–20, 23–25 Feb. 1863, decided 10 Mar. 1863 by vote of 5 to 4; Grier for the Court, Nelson, joined by Catron, Clifford, and Taney, in dissent.

646.[1] http://www.answers.com/topic/prize-cases. Bibliography: Stewart L. Bernath, Squall across the Atlantic: American Civil War Prize Cases and Diplomacy (1970) Oxford Companion article by Paul Finkelman

647.[1] Article 1, §9.

648.[1] http://supreme.justia.com/cases/federal/us/67/635/case.html

649.[1] http://supreme.justia.com/cases/federal/us/67/635/case.html

650.[1] Bl. Commentaries, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_8_11s1.html.

651.[1] http://www.answers.com/topic/war-powers-1

652.[1] http://www.answers.com/topic/war-powers-1

653.[1] http://www.answers.com/topic/war-powers-1

654.[1] For the full resolution, see http://www.c-span.org/resources/pdf/hjres114.pdf

655.[1] http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/html/PLAW-107publ243.htm

656.[1] http://web.utk.edu/~scheb/library/gulfwar.htm

657.[1] http://www.answers.com/topic/war-powers-1.

Oxford Companion article by Thomas O. Sargentich

  1. 658.             [1] War Powers Resolution of 1973:

Public Law 93-148

93rd Congress, H. J. Res. 542

November 7, 1973

Joint Resolution

Concerning the war powers of Congress and the President.

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled,

SHORT TITLE

SECTION 1. This joint resolution may be cited as the “War Powers Resolution”.

PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

CONSULTATION

SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

REPORTING

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

CONGRESSIONAL ACTION

SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL

SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays.

(b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period.

CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION

SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays.

(b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference.

Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement.

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred–

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or

(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

(c) For purposes of this joint resolution, the term “introduction of United States Armed Forces” includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.

(d) Nothing in this joint resolution–

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

SEPARABILITY CLAUSE

SEC. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby.

EFFECTIVE DATE

SEC. 10. This joint resolution shall take effect on the date of its enactment.

CARL ALBERT

Speaker of the House of Representatives.

JAMES O. EASTLAND

President of the Senate pro tempore.

IN THE HOUSE OF REPRESENTATIVES, U.S.,

November 7, 1973.

The House of Representatives having proceeded to reconsider the resolution (H. J. Res 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was Resolved, That the said resolution pass, two-thirds of the House of Representatives agreeing to pass the same.

Attest:

W. PAT JENNINGS

Clerk.

I certify that this Joint Resolution originated in the House of Representatives.

W. PAT JENNINGS

Clerk.

IN THE SENATE OF THE UNITED STATES

November 7, 1973

The Senate having proceeded to reconsider the joint resolution (H. J.

Res. 542) entitled “Joint resolution concerning the war powers of Congress

And the President”, returned by the President of the United States with his objections to the House of Representatives, in which it originate, it was

Resolved, That the said joint resolution pass, two-thirds of the

Senators present having voted in the affirmative.

Attest:

FRANCIS R. VALEO

Secretary.

From: http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml

659 http://www.answers.com/topic/war-powers-1

660 http://www.encyclopedia.com/topic/Separation_of_Powers.aspx. Bibliography: Maeva Marcus, Truman and the Steel Seizure Case—the Limits of Presidential Power, rev. ed. (1994). William H. Rehnquist, The Supreme Court, rev. ed. (2001). Alan F. Westin, The Anatomy of A Constitutional Law Case, rev. ed. (1990).

Oxford Companion article by Thomas E. Baker

661.[1] 343 U.S. 579 (1952) @ http://supreme.justia.com/cases/federal/us/343/579/http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

662.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

663.[1] 343 U.S. 579 (1952) http://laws.findlaw.com/us/343/579.html Oxford Companion [A]rgued 12–13 May 1952, decided 2 June 1952 by vote of 6 to 3; black for the Court, Frankfurter, Douglas, Jackson, Burton, and Clark concurring, Vinson, Reed, and Minton in dissent. http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

664.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

665.[1] §1.001

666.[1]In limine”: “on or at the threshold; at the very beginning”, Black’s Law Dictionary 5th Ed. 708.

667.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

668.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

669.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

670.[1] 61 Stat. 155, 29 U.S.C. (Supp. IV) 176.

671.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

672.[1] http://www.answers.com/topic/home-building-and-loan-association-v-blaisdell, Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 483 (1934) @ http://laws.findlaw.com/us/290/398.html.

673.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

674.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer

675.[1] Thomas Jefferson, letter to Monsieur A. Coray, October 31, 1823.—The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb, vol. 15, pp. 486–87 (1904).

676.[1] But also to prevent states from depriving any person of due process or equal protection of the laws.

677.[1] §11 mainly

678.[1] http://www.answers.com/topic/united-states-v-butler, 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

679.[1] http://www.answers.com/topic/wickard-v-filburn 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html

680.[1] http://tinyurl.com/d22ygbs

681.[1] http://www.answers.com/topic/youngstown-sheet-tube-co-v-sawyer, 343 U.S. 579 (1952) @ http://laws.findlaw.com/us/343/579.html

682.[1] 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

683.[1] http://www.answers.com/topic/united-states-v-butler, 297 U.S. 1 (1936) @ http://laws.findlaw.com/us/297/1.html

684.[1] http://www.answers.com/topic/wickard-v-filburn, 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html

685.[1] http://www.answers.com/topic/roe-v-wade, 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

686.[1] http://www.answers.com/topic/reynolds-v-sims, Reynolds v. Sims, 377 U.S. 533 (1964) (and five others decided that day).

687.[1] http://www.answers.com/topic/united-states-v-darby-lumber-co-1, United States v. Darby Lumber Co. 312 U.S. 100, 312 U.S. 657 (1941) [@ http://laws.findlaw.com/us/312/100.html]: “The [10th] states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserve powers.”

688.[1] http://www.constitution.org/fed/federa40.htm

689.[1] http://www.constitution.org/fed/federa40.htm

690.[1] http://www.constitution.org/fed/federa17.htm

691.[1] http://www.constitution.org/fed/federa39.htm

692.[1] http://www.answers.com/topic/gibbons-v-ogden, Gibbons v. Ogden, 22 U.S. 1, 203 (1824) @ http://supreme.justia.com/cases/federal/us/22/1/case.html

693.[1] Usually under the due process clause, but also under equal protection.

694.[1] http://www.answers.com/topic/gault-in-re, In re Gault, 387 U.S. 1 (1967) @ http://laws.findlaw.com/us/387/1.html

695.[1] Gilbert v. California, 388 U.S. 263 (1967) @ http://laws.findlaw.com/us/388/263.html

696.[1] http://www.answers.com/topic/miranda-v-arizona, Miranda v. Arizona, 384 U.S. 436 (1966) @ http://laws.findlaw.com/us/384/436.html

697.[1] http://www.answers.com/topic/mapp-v-ohio, Mapp v. Ohio, 367 U.S. 643 (1961) @ http://laws.findlaw.com/us/367/643.html, http://www.answers.com/topic/wolf-v-colorado, Wolf v. Colorado, 338 U.S. 25 (1949) @ http://laws.findlaw.com/us/338/25.html

698.[1] Brooks v. Tennessee, 406 U.S. 605 (1972) @ http://laws.findlaw.com/us/406/605.html

699.[1] http://www.answers.com/topic/furman-v-georgia, Furman v. Georgia, 408 U.S. 238 (1972) @ http://laws.findlaw.com/us/408/238.html

700.[1] Coker v. Georgia, 433 U.S. 584 (1977) @ http://laws.findlaw.com/us/433/584.html

701.[1] Emmund v. Florida, 458 U.S. 782 (1982) @ http://laws.findlaw.com/us/458/782.html

702.[1] Booth v. Maryland, 482 U.S. 496 (1987) @ http://laws.findlaw.com/us/482/496.html

703.[1] http://www.answers.com/topic/tinker-v-des-moines-independent-community-school-district, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) @ http://laws.findlaw.com/us/393/503.html

704.[1] Papish v. Board of Curators, 410 U.S. 667 (1973) @ http://laws.findlaw.com/us/410/667.html

705.[1] Rhodes v. Chapman, 452 U.S. 337 (1981) @ http://laws.findlaw.com/us/452/337.html

706.[1] http://www.answers.com/topic/brandenburg-v-ohio, Brandenburg v. Ohio, 395 U.S. 444 (1969) @ http://laws.findlaw.com/us/395/444.html

707.[1] Wyman v. Bowens, 397 U.S. 49 (1970) @ http://laws.findlaw.com/us/397/49.html. Rosado v. Wyman, 397 U.S. 397 (1970) @ http://laws.findlaw.com/us/397/397.html. Lewis v. Martin, 397 U.S. 552 (1970) @ http://laws.findlaw.com/us/397/552.html

708.[1] http://www.answers.com/topic/reynolds-v-sims, Reynolds v. Sims, 377 U.S. 533 (1964) @ http://laws.findlaw.com/us/377/533.html (and five others decided that day).

709.[1] http://www.answers.com/topic/roe-v-wade, Roe v. Wade, 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

710.[1] http://www.answers.com/topic/griswold-connecticut, Griswold v. Connecticut, 381 U.S. 479 (1965) @ http://laws.findlaw.com/us/381/479.html. Eisenstadt v. Baird, 405 U.S. 438 (1972) @ http://laws.findlaw.com/us/405/438.html

711.[1] Mills v. Alabama, 384 U.S. 214 (1966) @ http://laws.findlaw.com/us/384/214.html; Williams v. Rhodes, 393 U.S. 23 (1968) @ http://laws.findlaw.com/us/393/23.html; Moore v. Ogilvie, 394 U.S. 814 (1969) @ http://laws.findlaw.com/us/394/814.html

712.[1] http://www.answers.com/topic/texas-v-johnson Texas v. Johnson, 491 U.S. 397 (1989) @ http://supreme.justia.com/cases/federal/us/491/397/

713.[1] http://www.answers.com/topic/west-virginia-state-board-of-education-v-barnette, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) @ http://laws.findlaw.com/us/319/624.html

714.[1] Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413 (1966) @ http://laws.findlaw.com/us/383/413.html

715.[1] Stanley v. Illinois, 405 U.S. 645 (1972) @ http://laws.findlaw.com/us/405/645.html

716.[1] Levy v. Louisiana, 391 U.S. 68 (1968) @ http://laws.findlaw.com/us/391/68.html. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) http://laws.findlaw.com/us/406/164.html

717.[1] Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988) @ http://laws.findlaw.com/us/486/466.html

718.[1] http://www.answers.com/topic/loving-v-virginia, Loving v. Virginia, 388 U.S. 1 (1967) @ http://laws.findlaw.com/us/388/1.html; Zablocki v. Redhail, 434 U.S. 374 (1978) @ http://laws.findlaw.com/us/434/374.html

719.[1] Santosky v. Kramer, 455 U.S. 745 (1982) @ http://laws.findlaw.com/us/455/745.html

720.[1] http://www.answers.com/topic/thornhill-v-alabama-1, Thornhill v. Alabama, 310 U.S. 88 (1940) @ http://laws.findlaw.com/us/310/88.html

721.[1] http://www.answers.com/topic/new-york-times-co-v-sullivan, New York Times v. Sullivan, 376 U.S. 254 (1964) @ http://laws.findlaw.com/us/376/254.html

722.[1] Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) @ http://laws.findlaw.com/us/475/767.html

723.[1] Schneider v. City of Irvington, 308 U.S. 147 (1939) @ http://laws.findlaw.com/us/308/147.html

724.[1] Wooley v. Maynard, 430 U.S. 705 (1977) @ http://laws.findlaw.com/us/430/705.html

725.[1] Wieman v. Updegraff, 344 U.S. 183 (1952) @ http://laws.findlaw.com/us/344/183.html

726.[1] http://www.answers.com/topic/robinson-v-california, Robinson v. California, 370 U.S. 660 (1962) @ http://laws.findlaw.com/us/370/660.html

727.[1] http://www.answers.com/topic/abington-school-district-v-schempp, Abington School Dist. v. Schempp, 374 U.S. 203 (1963) @ http://laws.findlaw.com/us/374/203.html

728.[1] http://www.answers.com/topic/harper-v-virginia-state-board-of-elections-1, Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) @ http://laws.findlaw.com/us/383/663.html

729.[1] North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971) @ http://laws.findlaw.com/us/402/43.html

730.[1] http://www.answers.com/topic/shapiro-v-thompson, Shapiro v. Thompson, 394 U.S. 618 (1969) @ http://laws.findlaw.com/us/394/618.html

731.[1] Pickering v. Board of Education, 391 U.S. 563 (1968) @ http://laws.findlaw.com/us/391/563.html

732.[1] http://www.answers.com/topic/craig-v-boren, , 429 U.S. 190 (1976) @ http://laws.findlaw.com/us/429/190.html, Larkin v. Grendel’s Den, 459 U.S. 116 (1982) @ http://laws.findlaw.com/us/459/116.html

733.[1] Campbell v. John Donnelly & Sons, 453 U.S. 916 (1981) @ http://laws.findlaw.com/us/453/916.html

734.[1] Jamison v. Texas, 318 U.S. 413 (1943) @ http://laws.findlaw.com/us/318/413.html

735.[1] http://www.answers.com/topic/terminiello-v-chicago, Terminiello v. Chicago, 337 U.S. 1 (1949) @ http://laws.findlaw.com/us/337/1.html

736.[1] Erzhozik v. City of Jacksonville, 422 U.S. 205 (1975) @ http://laws.findlaw.com/us/422/205.html

737.[1] Moore v. City of East Cleveland, 431 U.S. 494 (1977) @ http://laws.findlaw.com/us/431/494.html

738.[1] Pickett v. Brown, 462 U.S. 1 (1983) @ http://laws.findlaw.com/us/462/1.html

739.[1] http://www.answers.com/topic/wickard-v-filburn, Wickard v. Filburn, 317 U.S. 111 (1942) @ http://laws.findlaw.com/us/317/111.html.

740.[1] Amendment 14, §5.

741.[1] See http://www.answers.com/topic/civil-rights-cases, Civil Rights Cases, 109 U.S. 3 (1883) @ http://laws.findlaw.com/us/109/3.html

742.[1] http://www.answers.com/topic/dred-scott-case, 60 U.S. 393 (1856) @ http://supreme.justia.com/cases/federal/us/60/393/case.html

743.[1] http://www.answers.com/topic/slaughterhouse-cases. In the Slaughterhouse Cases,  83 U.S. 36 (1873) http://laws.findlaw.com/us/83/36.html, Justice Samuel Miller, writing for the majority said, “To remove this primary difficulty . . . the first clause of the first section was framed . . . . That its main purpose was to establish the citizenship of the negro can admit of no doubt.” But as we will see shortly, Slaughterhouse ignored its own perception about the purposes of the 14thAmendment.

744.[1] http://www.answers.com/topic/privileges-and-immunities

745.[1] Federalist № 78 @ http://www.constitution.org/fed/federa78.htm

746.[1] Federalist 80 @ http://www.constitution.org/fed/federa80.htm. The statement should not be taken as meaning that the states have no jurisdiction in these cases, for if the defendant chooses not to remove the case to federal court, then it remains in state court. More on “diversity jurisdiction” in Volume 2, §5.

747.[1] Declaration of Independence

748.[1] Black’s Law Dictionary, 5th 1077.

749.[1] Black’s Law Dictionary, 5th 676.

750.[1] Powers under Article 1, §8

751.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

752.[1] http://www.answers.com/topic/privileges-and-immunities

753.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

754.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

755.[1] http://legis.wisconsin.gov/rsb/unannotated_wisconst.pdf

756.[1] Here is an example of why the 14th Amendment was later adopted: to give the same tax exemptions to all citizens.

757.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

758.[1] Comity: “Courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will.

—Comity of nations. The most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another. It is derived altogether from the voluntary consent of the latter; and it is inadmissible when it is contrary to its known policy, or prejudicial to its interests. In the silence of any positive rule affirming or denying or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless repugnant to its policy or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of the municipal law are ascertained and guided. Story, Confl. Laws §38. The comity of nations (comitas gentium) is that body of rules which states observe towards one another from courtesy or mutual convenience, although they do not form part of international law.” http://tinyurl.com/8zwsyk6

759.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

760.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. @ (1823) http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

  1. 761.             [1] Articles of Confederation. Article 4. “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all s and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any state, to any other state, of which the Owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any state, on the property of the united states, or either of them.”

762.[1] № 42 http://www.constitution.org/fed/federa42.htm

763.[1] Story, Commentaries §1799 @ http://press-pubs.uchicago.edu/founders/documents/a4_2_1s20.html

764.[1] Story, Commentaries §1800 @ http://press-pubs.uchicago.edu/founders/documents/a4_2_1s20.html,

765.[1] Federalist №42 @ http://www.constitution.org/fed/federa42.htm

766.[1] http://www.answers.com/topic/dred-scott-case, 60 U.S. 393 (1856) @ http://supreme.justia.com/cases/federal/us/60/393/

767.[1] http://www.answers.com/topic/slaughterhouse-cases In the Slaughterhouse Cases,  83 U.S. 36 (1873) @ http://supreme.justia.com/cases/federal/us/83/36/, Justice Samuel Miller, writing for the majority said, “To remove this primary difficulty . . . the first clause of the first section was framed . . . . That its main purpose was to establish the citizenship of the negro can admit of no doubt.” But as we will see shortly, Slaughterhouse ignored its own perception about the purposes of the 14thAmendment.

768.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

769.[1] Slaughterhouse was the one great exception to my statement earlier that the 14th Amendment cases are examples of unwarranted judicial activism.

770.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

771.[1] For evidence of the clause’s primacy, see Harlan, J. in Oregon v. Mitchell [@ http://www.answers.com/topic/oregon-v-mitchell] 400 U.S. 112, 164 (1970), and Bond, James E., “The Original Understanding of the 14th Amendment in Illinois, Ohio, and Pennsylvania.

772.[1] For example, laws establishing bound apprenticeships, labor restrictions, vagrancy laws, restrictions on property ownership and craft employment, restrictions on the right to contract, to own property to assemble, and to bear arms.

  1. 773.             [1] Justice Miller for the majority attempted to define the privileges and immunities of U.S. Citizens

“But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

One of these is well described in the case of Crandall v. Nevada. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language of Chief Justice Taney in another case, it is said ‘that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations . . .are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the 14th, next to be considered.” http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

774.[1] The Supremacy Clause is part of Article 6: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

775.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

776.[1] Residency usually requires both physical presence and an intention of remaining for either a permanent or an undetermined period. Black’s Law Dictionary, 5th 1176.

777.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

778.[1] http://www.answers.com/topic/paul-v-virginia-1, 75 U.S. 168 (1869) @ http://supreme.justia.com/cases/federal/us/75/168/

779.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

Justice Field may have overstated the case when he said, “and [Article 4] secures to them in other states the equal protection of their laws.” “Equal protection in the 14th was a clause separate from the 14th’s privileges or immunities clause, leading one perhaps to believe that it wasn’t understood in Article 4 as embracing equal protection.

780.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

781.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

782.[1] http://www.answers.com/topic/privileges-and-immunities Bibliography

Akhil Reed Amar, Did the 14th Amendment Incorporate the Bill of Rights Against States? Harvard Journal of Law & Public Policy 19 (1996): 443–449 (1996).

Michael Kent Curtis, No State Shall Abridge (1986).

John C. Eastman, The Declaration of Independence as Viewed from the States, in The Declaration of Independence: Origins and Impact, edited by Scott Douglas Gerber (2002), pp. 96–117.

Charles Fairman, Does the 14th Amendment Incorporate the Bill of Rights? The Original Understanding, Stanford Law Review 2 (1949): 5–139.

John Harrison, Reconstructing the Privileges or Immunities Clause, Yale Law Journal (1992): 1385–1474.

Douglas W. Kmiec, Natural‐Law Originalism—Or Why Justice Scalia (Almost) Gets It Right, Harvard Journal of Law & Public Policy 20 (1997): 627–653.

Philip B. Kurland, The Privileges or Immunities Clause: ‘Its Hour Come Round at Last’? Washington University Law Quarterly (1972): 405–420.

Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the 14th Amendment, Harvard Journal of Law & Public Policy 12 (1989): 63–70.

Laurence H. Tribe, Comment, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future—Or Reveal the Structure of the Present?, Harvard Law Review 113 (1999): 110–198

Oxford Companion article by C. Hermann Pritchett, revised by John C. Eastman

783.[1] 307 U.S. 496 (1939) @ http://laws.findlaw.com/us/307/496.html.

784.[1] 79 U.S. 418 (1870) @ http://supreme.justia.com/cases/federal/us/79/418/case.html

785.[1] 172 U.S. 239 (1898) @ http://supreme.justia.com/cases/federal/us/172/239/

786.[1] 334 U.S. 385 (1948) @ http://supreme.justia.com/cases/federal/us/334/385/

787.[1]410 U.S. 179 (1973) @ http://supreme.justia.com/cases/federal/us/410/179/

788.[1] 437 U.S. 518 (1978) @ http://supreme.justia.com/cases/federal/us/437/518/

789.[1] 470 U.S. 274 (1985) @ http://supreme.justia.com/cases/federal/us/470/274/

790.[1] http://www.answers.com/topic/privileges-and-immunities

791.[1] 412 U.S. 441 (1973) @ http://supreme.justia.com/cases/federal/us/412/441/

792.[1] 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823) @ http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

793.[1] http://www.answers.com/topic/privileges-and-immunities

794.[1] 436 U.S. 371 (1978) http://supreme.justia.com/cases/federal/us/436/371/

795.[1] “LICENSE. In the law of contracts. A permission, accorded by a competent authority, conferring the right to do some act which without such authorization would be illegal, or would be a trespass or a tort. * * * Also the written evidence of such permission.” Black’s Law Dictionary (1910) @ http://tinyurl.com/7fpklsq

In real property law. An authority to do a particular act or series of acts upon another’s land without possessing any estate therein.

796.[1] http://www.answers.com/topic/privileges-and-immunities

797.[1] 437 U.S. 518 (1978) @ http://supreme.justia.com/cases/federal/us/437/518/

798.[1] http://www.answers.com/topic/paul-v-virginia-1, 75 U.S. 168 (1869) @ http://supreme.justia.com/cases/federal/us/75/168/case.html 75 U.S.) 168 (1869). Oxford Companion: [A]rgued 12 Oct. 1869, decided 1 Nov. 1869 by vote of 8 to 0; Field for the Court. During the nineteenth century, fire and life insurance companies were among the first corporations to market products on a national basis. To encourage the development of local enterprise, many states levied discriminatory taxes and license fees against nonresident, or “foreign,” insurance companies chartered in other states. Such protectionist legislation was directed chiefly against large corporations in the Northeast. Paul v. Virginia was a test case financed by the National Board of Fire Underwriters to challenge these discriminatory practices. The case arose when Paul, an agent for a number of New York fire insurance companies, was convicted under a Virginia law for selling insurance without a license.

Company lawyers argued that corporations were “citizens as defined in the Privileges and Immunities Clause of Article IV and that insurance sales were transactions in interstate commerce under Article I, section 8. A victory on the Commerce Clause issue would have preempted the states from regulating or taxing any aspects of interstate insurance sales.

A unanimous Supreme Court held against the insurance industry on both questions, thereby allowing state protectionist legislation to continue. The decision reflected the nineteenth‐century view that corporations were not citizens for purposes of the Privileges and Immunities Clause. The Court ultimately held, in United States v. South‐Eastern Underwriters Association (1944), that the insurance business affected interstate commerce, but by then state regulatory systems were well entrenched. Congress recognized this fact by authorizing the continuation of state insurance regulation through the McCarran‐Ferguson Act of 1945.

Oxford Companion article by Philip L. Merkel

799.[1] 307 U.S. 496 (1939) http://laws.findlaw.com/us/307/496.html

800.[1] See Hertz Corp. v. Friend (2010) @ http://www.supremecourt.gov/opinions/09pdf/08-1107.pdf:

“’[P]rincipal place of business’ is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. In practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,’ and not simply an office where the corporation holds its board meetings.”

I rather like the old definition: “In 1809, Chief Justice Marshall, writing for a unanimous Court, described a corporation as an ‘invisible, intangible, and artificial being’ which was ‘certainly not a citizen.’ Bank of United States v. Deveaux, 5 Cranch 61, 86 (1809). But the Court held that a corporation could invoke the federal courts’ diversity jurisdiction based on a pleading that the corporation’s shareholders were all citizens of a different State from the defendants, as ‘the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.’” Quoting from Hertz Corp. v. Friend (2010) @ http://www.supremecourt.gov/opinions/09pdf/08-1107.pdf

For the court to assume or accept the proposition that a corporation is a citizen is very strange indeed. As Marshall said, a corporation is an artificial being.

801.[1] §12

802.[1] http://www.answers.com/topic/privileges-and-immunities

803.[1] 296 U.S. 404 (1935) @ http://supreme.justia.com/cases/federal/us/296/404/

804.[1] See Index under “Privileges & Immunities

805.[1] http://www.answers.com/topic/privileges-and-immunities

806.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

807.[1] http://www.answers.com/topic/privileges-and-immunities

808.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

809.[1] http://www.answers.com/topic/privileges-and-immunities

810.[1] 296 U.S. 404 (1935) @ http://supreme.justia.com/cases/federal/us/296/404/

811.[1] 309 U.S. 83 (1940) @ http://supreme.justia.com/cases/federal/us/309/83/

812.[1] http://www.answers.com/topic/edwards-v-california, 314 U.S. 160 (1941) @ http://laws.findlaw.com/us/314/160.html

813.[1] http://www.answers.com/topic/privileges-and-immunities

814.[1] From syllabus 296 U.S. 404 (1935) @ http://supreme.justia.com/cases/federal/us/296/404/

815.[1] 309 U.S. 83 (1940) @ http://supreme.justia.com/cases/federal/us/309/83/

816.[1] From syllabus 309 U.S. 83 (1940) @ http://supreme.justia.com/cases/federal/us/309/83/

817.[1] http://www.answers.com/topic/edwards-v-california, 314 U.S. 160 (1941) @ http://laws.findlaw.com/us/314/160.html

818.[1] See Index under “Commerce Power”

819.[1] http://www.answers.com/topic/edwards-v-california, 314 U.S. 160 (1941) @ http://laws.findlaw.com/us/314/160.html

820.[1] Story, Familiar Exposition @ http://tinyurl.com/czv45pa

821.[1] Berger, The 14th Amendment and the Bill of Rights, p. 9, University of Oklahoma Press, Norman (1989), citing The Papers of Alexander Hamilton, Syrett & Cooke, eds. (1962).

822.[1] In the case of laws pertaining to judicial procedure, the due process clause forbids the enactment of procedures that deny notice and an opportunity to be heard.

823.[1] Or a plaintiff. A plaintiff can be deprived of his property without due process if he loses a lawsuit to stop a defendant from taking his property and is denied the opportunity to present his claims. E.g., the baseball tax case of Vol. 1, “Prologue”.

824.[1] “Property” is a very broad concept: “Every species of valuable right and interest including lawsuits for invasion of one’s property rights by actionable wrong.” Black’s Law Dictionary 5th 1095.

825.[1] See e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897) (Louisiana law requiring all corporations doing business there to pay a fee to the state) http://www.answers.com/topic/allgeyer-v-louisiana, http://laws.findlaw.com/us/165/578.html; Lochner v. New York, 198 U.S. 45 (1905) (New York maximum hours law) http://www.answers.com/topic/lochner-v-new-york, http://laws.findlaw.com/us/198/45.html, Adair v. United States, 208 U.S. 161 (1908) (federal law barring dismissals of labor union members for their membership) http://www.answers.com/topic/adair-v-united-states, http://laws.findlaw.com/us/208/161.html, Coppage v. Kansas, 236 U.S. 1 (1915) (state law banning yellow dog contracts) http://laws.findlaw.com/us/236/1.html, Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (minimum wage law powers of government agency in District of Columbia) http://www.answers.com/topic/adkins-v-children-s-hospital, http://laws.findlaw.com/us/261/525.html.

826.[1] http://www.answers.com/topic/west-coast-hotel-company-v-parrish, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) @ http://laws.findlaw.com/us/300/379.html (upholding Washington state minimum wage law).

827.[1] http://www.answers.com/topic/engel-v-vitale, Engel v. Vitale, 370 U.S. 421 (1962) @ http://laws.findlaw.com/us/370/421.html

828.[1] http://www.answers.com/topic/roe-v-wade, Roe v. Wade, 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

829.[1] Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413 (1966) @ http://laws.findlaw.com/us/383/413.html

830.[1] http://www.answers.com/topic/mapp-v-ohio, Mapp v. Ohio, 367 U.S. 643 (1961) @ http://laws.findlaw.com/us/367/643.html

831.[1] http://www.answers.com/topic/miranda-v-arizona, Miranda v. Arizona, 384 U.S. 436 (1966) @ http://laws.findlaw.com/us/384/436.html

832.[1] http://www.answers.com/topic/texas-v-johnson Texas v. Johnson, 491 U.S. 397 (1989) @ http://supreme.justia.com/cases/federal/us/491/397/

833.[1] http://www.answers.com/topic/furman-v-georgia, Furman v. Georgia, 408 U.S. 238 (1972) @ http://laws.findlaw.com/us/408/238.html

834.[1] Berger, The 14th Amendment and the Bill of Rights, p. 9.

835.[1] Berger, Government by Judiciary, p. 195 @ http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

836.[1] Berger, Government by Judiciary, p. 198, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27 quoted in Hurtado v. California, 110 U.S. 516, 523 (1884) @ http://www.answers.com/topic/hurtado-v-california-2, http://laws.findlaw.com/us/110/516.html

837.[1] Berger, Government by Judiciary, p. 196, n. 11 @ http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

838.[1] http://www.answers.com/topic/twining-v-new-jersey, Twining v. New Jersey, 211 U.S. 78, 111 (1908) @ http://laws.findlaw.com/us/211/78.html

839.[1] See Index under “Due Process”

840.[1] See Index under “Due Process

841.[1] Or a plaintiff. A plaintiff can be deprived of his property without due process if he loses a lawsuit to stop a defendant from taking his and is denied the opportunity to present his claims. E.g., the baseball tax case. See “Prologue”, V1.

842.[1] “Property” is a very broad concept: “[E]very species of valuable right and interest [including lawsuits for] invasion of one’s property rights by actionable wrong.” Black’s Law Dictionary, 5th 1095.

843.[1] See Index under “Due Process

844.[1] This is the point made years ago by Charles Warren: the “free speech” of the First Amendment could not have been comprehended in the due process of the 5th Amendment because, “having already provided in the First Amendment an absolute prohibition on Congress to take away certain rights,” it is “hardly conceivable” that the Framers would, in the 5th Amendment, provide that “Congress might take away the same rights by due process of law.” Warren, Charles, “The New ‘Liberty’ Under the 14th Amendment,” 39 Harv. L. Rev. 431, 441 (1926), as paraphrased in Berger, Government by Judiciary, p. 271 @ http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27 .

845.[1] http://www.answers.com/topic/adamson-v-california, Adamson v. California, 332 U.S. 46 (1947) @ http://laws.findlaw.com/us/332/46.html

846.[1] http://www.constitution.org/fed/federa40.htm

847.[1] The 5th Amendment is almost identical: “No person shall . . . be deprived of life, liberty, or property, without due process of law“.

848.[1] Here is a synopsis of the incorporation cases from http://law.onecle.com/constitution/018-bill-of-rights.html

The following list does not attempt to distinguish between those Bill of Rights provisions which have been held to have themselves been incorporated or absorbed by the 14th Amendment and those provisions which the Court indicated at the time were applicable against the States because they were fundamental and not merely because they were named in the Bill of Rights. Whichever formulation was originally used, the former is now the one used by the Court. Duncan v. Louisiana, 391 U.S. 145, 148 (1968).

First Amendment—Religion—Free exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).

Establishment: Everson v. Board of Education, 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).

Speech—Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).

Press—Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931).

Assembly—DeJonge v. Oregon, 299 U.S. 353 (1937).

Petition—DeJonge v. Oregon, 299 U.S. 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).

Second Amendment—

Right to keep and bear arms—Cf. United States v. Cruikshank, 92 U.S. 542, 553 (1876); Presser v. Illinois, 116 U.S. 252, 265 (1886).

[Update: See McDonald v. Chicago, a 2010 decision, holding the 2nd applies to states through the due process clause of the 14th. Fourth Amendment—Search and seizure—Wolf v. Colorado, 338 U.S. 25 (1949), Mapp v. Ohio, 367 U.S. 643 (1961).

5th Amendment—Double jeopardy—Benton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).

Self-incrimination—Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).

Just compensation—Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).

Sixth Amendment—Speedy trial—Klopfer v. North Carolina, 386 U.S. 213 (1967).

Public trial—In re Oliver, 333 U.S. 257 (1948).

Jury trial—Duncan v. Louisiana, 391 U.S. 145 (1968).

Impartial Jury—Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965).

Notice of charges—In re Oliver, 333 U.S. 257 (1948).

Confrontation—Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

Compulsory process—Washington v. Texas, 388 U.S. 14 (1967).

Counsel— Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

Eighth Amendment—Cruel and unusual punishment—Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).

Provisions not applied are:

Third Amendment—Quartering troops in homes—No cases.

5th Amendment—Grand Jury indictment—Hurtado v. California, 110 U.S. 516 (1884).

Seventh Amendment—Jury trial in civil cases in which value of controversy exceeds $20— Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Justice Frankfurter concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).

Eighth Amendment—Bail—But see Schilb v. Kuebel, 404 U.S. 357, 365 (1971).

Excessive Fines—But see Tate v. Short, 401 U.S. 395 (1971) (utilizing equal protection to prevent automatic jailing of indigents when others can pay a fine and avoid jail).

849.[1] §17.2235

850.[1] The inclusion of due process provoked no debate among the 14th Amendment’s ratifiers. See Berger, Government by Judiciary, pp. 201-214 @ http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27As Berger reports, Senator Bingham the main sponsor of the legislation was asked, “What do you mean by ‘due process of law'”?, Bingham curtly replied, “the courts have settled that long ago, and the gentleman can go and read their decisions.” http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

851.[1] http://www.answers.com/topic/due-process.

Oxford Companion article by Thomas O. Sargentich

852.[1] The document that has come to be known as Magna Charta (spelled variously as “charta” or “carta”), or Great Charter, is recognized as a fundamental part of the English constitutional tradition. Although it is not a constitution, it contains provisions on criminal law that were incorporated into the Bill of Rights of the U.S. Constitution.

In 1215 King John of England (1199-1216) fought more than forty English barons and their followers in a civil war. The king had angered the barons by extracting revenues based on their feudal obligations in order to fight a war in France. After John lost the war, the barons rebelled against the king.

The rebels first demanded that the king confirm the Charter of Henry I, a coronation charter from 1100 in which King Henry I had promised to abolish all evil customs that oppressed the realm. Additional grievances were added to the charter, which King John was forced to accept at Runnymede in June 1215, after the rebels occupied London.

Magna Charta contains sixty-three chapters. Many of the chapters defined the king’s feudal rights over his vassals, preventing the king from arbitrarily collecting revenue from the barons. Chapter 39 established the right to due process of law, and in chapter 40 the king promised that he would not sell, deny, or delay justice to anyone.

* * *

Chapter 39

No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.8

Chapter 40

We will sell to no one, or deny to no one, or put off right or justice.

* * *

Source: Selections from The Second Treatise on Government, 5 J. Locke, works (1823). The footnotes have been renumbered. http://www.answers.com/topic/magna-carta#ixzz1yv9KPrXV

853.[1] 210 U.S. 373 (1908) @ http://laws.findlaw.com/us/210/373.html

854.[1] 239 U.S. 441 (1915) @ http://laws.findlaw.com/us/239/441.html

855.[1] 234 U.S. 385 (1914) @ http://laws.findlaw.com/us/234/385.html

856.[1] 397 U.S. 254 (1970) @ http://laws.findlaw.com/us/397/254.html

857.[1] 402 U.S. 535 (1971) @ http://laws.findlaw.com/us/402/535.html

858.[1] 408 U.S. 564 (1972) @ http://laws.findlaw.com/us/408/564.html

859.[1] 416 U.S. 134 (1974) @ http://laws.findlaw.com/us/416/134.html

860.[1] http://www.answers.com/topic/due-process#ixzz1yuiJVVLc.

Oxford Companion article by Thomas O. Sargentich

861.[1] See Index under “Due Process

862.[1] http://www.answers.com/topic/due-process#ixzz1yuiJVVLc.

Oxford Companion article by Thomas O. Sargentich

863.[1] 408 U.S. 471 (1972) @ http://laws.findlaw.com/us/408/471.html

864.[1] http://www.answers.com/topic/due-process#ixzz1yuiJVVLc.

Oxford Companion article by Thomas O. Sargentich

865.[1] 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

866.[1] See Index under “Cases”

867.[1] http://www.answers.com/topic/due-process#ixzz1yuiJVVLc.

Oxford Companion by Thomas O. Sargentich

868.[1] ⊗ 452 U.S. 18 (1981) @ http://laws.findlaw.com/us/452/18.html

869.[1] 430 U.S. 651 (1977) @ http://laws.findlaw.com/us/430/651.html

870.[1] 470 U.S. 532 (1985) @ http://laws.findlaw.com/us/470/532.html

871.[1] 424 U.S. 319 (1976) @ http://laws.findlaw.com/us/424/319.html

872.[1] http://www.answers.com/topic/substantive-due-process. Bibliography

Lawrence Friedman, The Republic of Choice, Law, Authority, and Culture (1990).

Herbert Hovenkamp, The Political Economy of Substantive Due Process, Stanford Law Review 40 (1988): 379–447.

William E. Nelson, The 14th Amendment (1988).

Michael J. Phillips, Another Look at Economic Substantive Due Process, Wisconsin Law Review (1987): 265–324

Oxford Companion article by Peter Charles Hoffer

873.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

874.[1] http://www.answers.com/topic/substantive-due-process, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

875.[1] 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

876.[1] See Index under “Equal Protection

877.[1] http://www.answers.com/topic/substantive-due-process

878.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

879.[1] ⊗http://www.answers.com/topic/munn-v-illinois, 94 U.S. 113 (1877) @ http://supreme.justia.com/cases/federal/us/94/113/

880.[1] http://www.answers.com/topic/substantive-due-process

881.[1] http://www.answers.com/topic/munn-v-illinois.

Oxford Companion article by Augustus M. Burns III

882.[1] http://www.answers.com/topic/munn-v-illinois, 94 U.S. 113 (1877) @ http://supreme.justia.com/cases/federal/us/94/113/ argued 14, 18 Jan. 1876, decided 1 Mar. 1877 by vote of 7 to 2; Waite for the Court, Field, joined by Strong, in dissent.

883.[1] “Special and private laws prohibited. Section 31. [As created Nov. 1871 and amended Nov. 1892 and April 1993] The legislature is prohibited from enacting any special or private laws in the following cases: * * *

(6) For assessment or collection of taxes or for extending the time for the collection thereof. * * *

General laws on enumerated subjects. Section 32. [As created Nov. 1871 and amended April 1993] The legislature may provide by general law for the treatment of any subject for which lawmaking is prohibited by section 31 of this article. Subject to reasonable classifications, such laws shall be uniform in their operation throughout the state.” https://docs.legis.wisconsin.gov/misc/wiscon/_14/_34

884.[1] Hayek Constitution of Liberty, p. 153.

885.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

886.[1] See Index under “Due Process

887.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

888.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

889.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

890.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

891.[1] See Index under “Commerce Power”

892.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

893.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

894.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

895.[1] http://www.answers.com/topic/munn-v-illinois http://supreme.justia.com/cases/federal/us/94/113/

896.[1] See Index under “Privileges & Immunities

897.[1] See Index under “Privileges & Immunities

898.[1] http://www.answers.com/topic/munn-v-illinois, 94 U.S. 113 (1877) @ http://supreme.justia.com/cases/federal/us/94/113/

899.[1] Article 1, §10.

900.[1] http://www.answers.com/topic/munn-v-illinois “[I]t appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the ‘Northwestern Elevator,’ and erected thereon the grain warehouse or elevator in that year, with their own capital and means; that they ever since carried on, in said elevator, the business of storing and handling grain for hire, for which they charged and received, as a compensation, the rates of storage which had been, from year to year, agreed upon and established by the different elevators and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and proprietors of the grain warehouse known as “The Northwestern Elevator,” in Chicago, Ill., wherein grain of different owners was stored in bulk and mixed together; and they then and there carried on the business of receiving, storing, and delivering grain for hire without having taken a license from the Circuit Court of Cook County permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the act of April 25, 1871.” 94 U.S. 113 (1877) http://supreme.justia.com/cases/federal/us/94/113/

901.[1] http://www.answers.com/topic/munn-v-illinois

902.[1] http://www.answers.com/topic/substantive-due-process

903.[1] 111 U.S. 746 (1884) http://supreme.justia.com/cases/federal/us/111/746/

904.[1] http://www.answers.com/topic/substantive-due-process

905.[1] See Index under “Federal Judicial Jurisdiction”

906.[1] ⊗ Except perhaps in the case of a valid and timely removal from state to federal court.

907.[1] http://www.answers.com/topic/substantive-due-process

908.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana Allgeyer v. Louisiana, 165 U.S. 578 (1897), http://laws.findlaw.com/us/165/578.htm.

Oxford Companion: [S]ubmitted 6 Jan. 1897, decided 1 Mar. 1897 by vote of 9 to 0; Peckham for the Court.

In Allgeyer v. Louisiana, the Supreme Court for the first time ruled a state law unconstitutional for depriving a person of the right to make contracts. The case arose in Louisiana, which like other states prohibited businesses from operating within its jurisdiction unless they met certain conditions. To enforce this policy, Louisiana made it illegal for Louisianans to enter into certain insurance contracts by mail with companies operating outside the state. Allgeyer & Co. was prosecuted for entering into such an insurance contract with a New York company.

The Court had earlier held that insurance was not interstate commerce and so could not rule the Louisiana law unconstitutional for invading national jurisdiction. Instead, the Court held that the contract was effected in New York and lawful under New York. The Court then held that the Due process Clause of the 14th Amendment guaranteed the right to enter into lawful contracts.

Allgeyer v. Louisiana became the key case establishing the doctrine of “liberty of contract.” Although the opinion itself only declared that the right to make lawful contracts was a liberty protected by the Due process Clause, the courts developed the principle that freedom of contract was the rule and restraint the exception, the reasonability of which states had to justify. Employers regularly cited this principle to challenge legislation regulating terms of employment—setting maximum working hours or minimum wages, for example. Until the mid‐1930s such challenges often were successful.

Oxford Companion article by Michael Les Benedict.

909.[1] http://www.answers.com/topic/allgeyer-v-louisiana

910.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana, Allgeyer v. Louisiana, 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

911.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana, Allgeyer v. Louisiana, 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

912.[1] http://www.answers.com/topic/substantive-due-process

913.[1] ⊗ http://www.answers.com/topic/lochner-v-new-york, Lochner v. New York, 198 U.S. 45 (1905) @ http://laws.findlaw.com/us/198/45.html Oxford Companion: [A]argued 23–24 Feb. 1905, decided 17 Apr. 1905 by vote of 5 to 4; Peckham for the Court, Harlan and Holmes in dissent.

Bibliography

Felix Frankfurter, Hours of Labor and Realism in Constitutional Law, Harvard Law Review 23 (1916): 353.

Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990).

Bernard H. Siegan, Rehabilitating Lochner, San Diego Law Review 22 (1985): 453.

Cass R. Sunstein, Lochner’s Legacy, Columbia Law Review 87 (1987): 873 Oxford Companion article by Paul Kens

914.[1] http://www.answers.com/topic/substantive-due-process

915.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana, Allgeyer v. Louisiana, 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

916.[1] Article 1, §10

917.[1] See Index under “Privileges & Immunities

918.[1] http://www.answers.com/topic/substantive-due-process

919.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

920.[1] ⊗ http://www.answers.com/topic/holden-v-hardy, 169 U.S. 366 (1898) @ http://laws.findlaw.com/us/169/366.html

921.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana, Allgeyer v. Louisiana, 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

922.[1] http://www.answers.com/topic/substantive-due-process

923.[1] http://www.answers.com/topic/substantive-due-process

924.[1] ⊗ http://www.answers.com/topic/muller-v-oregon, 208 U.S. 412 (1908) @ http://laws.findlaw.com/us/208/412.html

925.[1] ⊗ http://www.answers.com/topic/bunting-v-oregon 243 U.S. 426 (1917) @ http://laws.findlaw.com/us/243/426.html

926.[1] ⊗ http://www.answers.com/topic/west-coast-hotel-company-v-parrish 300 U.S. 379 (1937) @ http://laws.findlaw.com/us/300/379.html

927.[1] http://www.answers.com/topic/adair-v-united-states

928.[1] http://www.answers.com/topic/adair-v-united-states Adair v. United States, 208 U.S. 161 (1908) @ http://laws.findlaw.com/us/208/161.html Oxford Companion: [A]rgued 29–30 Oct. 1907, decided 27 Jan. 1908 by vote of 7 to 2; Harlan for the Court, McKenna and Holmes in dissent. The Erdman Act of 1898 was enacted to prevent disruption of interstate commerce by labor disputes. It protected union members by prohibiting yellow dog contracts and the discharge or blacklisting of employees for union activity. An employer who discharged an employee for union membership challenged the constitutionality of the statute. Writing for the majority, Justice John Marshall Harlan posited equal bargaining power between employer and employee. He held the law to be an unreasonable invasion of personal liberty and property rights guaranteed by the due process clause of the 5th Amendment. Relying on 14th Amendment precedents, Harlan grafted the substantive conception of due process and freedom of contract onto the 5th Amendment. He also found the act to be outside the scope of congressional commerce power. Ignoring the statute’s legislative history, he asserted there was “no legal or logical connection” between union membership and interstate commerce (p. 178).

Justice Joseph McKenna, in dissent, called for judicial realism, whereas Justice Oliver Wendell Holmes echoed the position of restraint he had espoused in Lochner v. New York (1905) http://www.answers.com/topic/lochner-v-new-yorkhttp://laws.findlaw.com/us/198/45.html the legislature was the proper arbiter of public policy and could reasonably limit freedom of contract.

* * * The precedent supported invalidation of state laws providing similar protections for unions ⊗ (Cases: Coppage v. Kansas, 236 U.S. 1 (1915) (state law banning yellow dog contracts) @ http://laws.findlaw.com/us/236/1.html until the New Deal era revolutionized labor/management relations.

Oxford Companion article by Barbara C. Steidle

929.[1] http://www.answers.com/topic/substantive-due-process

930.[1] ⊗ 236 U.S. 1 (1915) http://laws.findlaw.com/us/236/1.html

931.[1] http://www.answers.com/topic/adkins-v-children-s-hospital, 208 U.S. 161 (1908) @ http://laws.findlaw.com/us/208/161.html

932.[1] http://www.answers.com/topic/substantive-due-process

933.[1] http://www.answers.com/topic/substantive-due-process

934.[1] ⊗ http://www.answers.com/topic/nebbia-v-new-york-1, 291 U.S. 502 (1934) @ http://laws.findlaw.com/us/291/502.html

935.[1] http://www.answers.com/topic/munn-v-illinois, 94 U.S. 113

936.[1] http://www.answers.com/topic/munn-v-illinois, 94 U.S. 113

937.[1] http://www.answers.com/topic/substantive-due-process

938.[1] ⊗ http://www.answers.com/topic/west-coast-hotel-company-v-parrish, 300 U.S. 379 (1937) @ http://laws.findlaw.com/us/300/379.html

939.[1] http://www.answers.com/topic/substantive-due-process

940.[1] http://www.answers.com/topic/substantive-due-process

941.[1] http://www.answers.com/topic/substantive-due-process

942.[1] ⊗ http://www.answers.com/topic/minor-v-happersett, 88 U.S. 162 (1875) @ http://laws.findlaw.com/us/88/162.html

943.[1] http://www.answers.com/topic/substantive-due-process

944.[1] Article 4, §4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion . . . .

945.[1] Article 1, §10. “No Bill of Attainder or ex post facto Law shall be passed.”

946.[1] http://www.answers.com/topic/substantive-due-process

947.[1] http://www.answers.com/topic/reynolds-v-sims, 377 U.S. 533 (1964) @ http://laws.findlaw.com/us/377/533.html

948.[1] http://www.answers.com/topic/harper-v-virginia-state-board-of-elections-1, 383 U.S. 663 (1966) @ http://laws.findlaw.com/us/383/663.html

949.[1] http://www.answers.com/topic/substantive-due-process

950.[1] http://www.answers.com/topic/baker-v-carr, 369 U.S. 186 (1962) @ http://laws.findlaw.com/us/369/186.html

951.[1] http://www.answers.com/topic/colegrove-v-green, 328 U.S. 549 (1946) http://laws.findlaw.com/us/328/549.html

952.[1] http://www.answers.com/topic/substantive-due-process

953.[1] http://www.answers.com/topic/reynolds-v-sims, 377 U.S. 533 (1964) @ http://laws.findlaw.com/us/377/533.html

954.[1] See Index under “Equal Protection

955.[1] http://www.answers.com/topic/substantive-due-process

956.[1] http://www.answers.com/topic/harper-v-virginia-state-board-of-elections-1, 383 U.S. 663 (1966) @ http://laws.findlaw.com/us/377/533.html

957.[1] http://www.answers.com/topic/harper-v-virginia-state-board-of-elections-1, 383 U.S. 663 (1966) @ http://laws.findlaw.com/us/377/533.html (fn 1)

958.[1] http://www.answers.com/topic/substantive-due-process

959.[1] ⊗ http://www.answers.com/topic/bush-v-gore, 531 U.S. 98 (2000) @ http://laws.findlaw.com/us/531/98.html

960.[1] http://www.answers.com/topic/substantive-due-process

961.[1] ⊗ http://www.answers.com/topic/griswold-connecticut, 381 U.S. 479 (1965) @ http://laws.findlaw.com/us/381/479.html

962.[1] See Index under “Due Process

963.[1] http://www.answers.com/topic/substantive-due-process

964.[1] Isn’t everyone by now sick of “life styles”, “personal choices”, “private spaces”, and other like clichés masquerading as legal doctrines?

965.[1] http://www.answers.com/topic/roe-v-wade, 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

966.[1] See Index under “Due Process

967.[1] See Index under “Due Process

968.[1] http://www.answers.com/topic/laissez-faire-constitutionalism Bibliography: William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998)

Oxford Companion article by William M. Wiecek

969.[1] http://www.answers.com/topic/laissez-faire-constitutionalism Bibliography: William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998).

Oxford Companion article by William M. Wiecek

970.[1] http://www.answers.com/topic/slaughterhouse-cases, 83 U.S. 36 (1872) @ http://supreme.justia.com/cases/federal/us/83/36/

971.[1] ⊗ http://www.answers.com/topic/chicago-milwaukee-st-paul-railway-co-v-minnesota, 134 U.S. 418 (1890) @ http://laws.findlaw.com/us/134/418.html

972.[1] http://www.answers.com/topic/allgeyer-v-louisiana @ http://supreme.justia.com/cases/federal/us/165/578/case.html

973.[1] In two parts: http://www.answers.com/topic/pollock-v-farmers-loan-trust-co, (1) 157 U.S. 429 (1895) @ http://laws.findlaw.com/us/157/429.html (2) 158 U.S. 601 (1895) @ http://laws.findlaw.com/us/158/601.html.

Oxford Companion: (1) [A]rgued 7–13 Mar. 1895, decided in three parts on 8 Apr. 1895 by votes of 8 to 0, 6 to 2, and 4 to 4; Fuller for the Court, Field concurring, White, Harlan, Brown, and Shiras in dissent, Jackson not participating. (2) 158 U.S. 601 (1895), rehearing argued 6–8 May 1895, decided 20 May 1895 by vote of 5 to 4; Fuller for the Court, Harlan, Brown, Jackson, and White in dissent. Pollock is not important as a precedent, since it was negated by the Sixteenth Amendment and was probably on the way to reversal by the Supreme Court even before that amendment’s adoption. Nevertheless, the decision stands as one of the most notorious examples—according to progressive historians—of judicial adherence to laissez‐faire constitutionalism.

At issue was the income tax law of 1894, the nation’s first peacetime attempt to tax incomes, including those from securities and corporate profits. The tax was itself miniscule—a flat 2 percent on all incomes above four thousand dollars—but the principle was of great significance. On one side, the national government needed additional revenue to support its burgeoning activities. Social reformers also argued that some action was needed to reduce the great disparities of wealth resulting from the rapidly industrializing American economy. On the other side, private individuals and businesses claimed constitutional protection against such measures to redistribute wealth.

Pollock was a contrived case in which a stock‐holder sued to enjoin his bank from paying a tax that the bank did not wish to pay anyway. The Court agreed to expedite hearings for the case, reflecting the need to have the question settled rapidly.

Lawyers opposing the tax, headed by Joseph H. Choate of New York, argued that the income tax violated the principle of uniformity and that it was a “direct” tax that could be constitutional only if apportioned according to the populations of the several states. Neither argument had any support in precedent; the meaning of direct tax had long been given a narrow interpretation. Moreover, the Supreme Court, in Springer v. United States (1881) [@ http://www.answers.com/topic/springer-v-united-states], 102 U.S. 586 @ [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=102&page=586] had sustained the temporary Civil War income tax, holding that an income tax was not a direct tax. Partly for this reason the lawyers freely resorted to hortatory claims that such taxation was an attack on private property rights and the first step on the road to communism.

In the initial decision, the Supreme Court separated the law into three parts, deciding each by a different vote. First, the Court held unanimously that a tax on income from state and municipal bonds was essentially a tax on the state itself, violating the principle of state sovereignty. Next, the Court, in an opinion by Chief Justice Melville Fuller, ruled that a tax on income from real property was a direct tax. The Court split 6 to 2, with Justices Edward D. White and John Marshall Harlan dissenting. Third, the Court divided equally, with Justice Howell Jackson being absent, on the question of whether the general tax on private and corporate incomes was also a direct tax. Evidence suggests that Justices Henry B. Brown and George Shiras joined White and Harlan in believing the tax constitutional. Thus, a major part of the tax law was left standing.

This situation pleased no one, and the Court immediately agreed to a rehearing on the issue of taxing general income. The terminally ill Jackson struggled to Washington, undoubtedly hoping that his vote would settle the question in favor of the tax‘s validity. But though Jackson voted to support the tax, another justice (probably Shiras) changed his position, producing a 5‐to‐4 vote invalidating the entire tax law because it was a direct tax that had to be apportioned among the states according to their populations.

This barebones description of Pollock gives no adequate impression of its emotion‐laden context. Both lawyers and judges departed far from constitutional argument; newspapers reported it fully and editorialized acidly. Harlan wrote privately that Justice Stephen J. Field acted like a “madman” throughout the case, but the dissenters’ own opinions were similarly emotional. It was doubtless the most controversial case of its era.

Only one part of the decision stood after the adoption of the Sixteenth Amendment in 1913: the ban on the taxation of income from state and municipal bonds. Although Congress has never enacted such a tax, the Court reversed its 1895 objection to such action in South Carolina v. Baker (1988).

Oxford Companion article by Loren P. Beth.

974.[1] http://www.answers.com/topic/plessy-v-ferguson, 163 U.S. 537 (1896) @ http://supreme.justia.com/cases/federal/us/163/537/

975.[1] See Index under “Privileges & Immunities

976.[1] ⊗ http://www.answers.com/topic/allgeyer-v-louisiana, Allgeyer v. Louisiana, 165 U.S. 578 (1897) @ http://laws.findlaw.com/us/165/578.htm

977.[1] See Index under “Federal Taxing Power”

978.[1] POLLS. “The place where electors cast in their votes. Heads; individuals persons singly considered. A challenge to the polls (in capita) is a challenge to the individual jurors composing the panel, or an exception to one or more particular jurors. 3 Bl. Comm. 358, 361.” Black’s Law Dictionary (1910) @ http://tinyurl.com/cstlvfy

979.[1] Story, Familiar Exposition §156 @ http://tinyurl.com/9jwa2q7

980.[1] Article 1, §8, Cl. 1. “The Congress shall have Power . . . To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

981.[1] Capitation taxes are upon the person. Black’s Law Dictionary 5th 191.

982.[1] U.S. Const., Art. 1, §3.

983.[1] U.S. Const., Art. 1, §9, Cl. 4.

984.[1] 16th  Amendment. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

985.[1] http://www.answers.com/topic/laissez-faire-constitutionalism Bibliography: William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998).

Oxford Companion article by William M. Wiecek

986.[1] http://www.answers.com/topic/plessy-v-ferguson, 163 U.S. 537 (1896) @ http://supreme.justia.com/cases/federal/us/163/537/, Oxford Companion: [A]rgued 13 Apr. 1896, decided 18 May 1896 by vote of 7 to 1; Brown for the Court, Harlan in dissent, Brewer not participating.

987.[1] http://www.answers.com/topic/plessy-v-ferguson

988.[1] http://www.answers.com/topic/brown-versus-board-of-education, 347 U.S. 483 (1954) @ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=347&page=483

989.[1] Oxford Companion: A New Orleans group of Creoles and blacks organized themselves as the Citizens’ Committee to Test the Constitutionality of the Separate Car Law. Their challenge enjoyed some support from the railroads, who objected to the additional costs of providing separate cars. http://www.answers.com/topic/plessy-v-ferguson

990.[1] http://www.answers.com/topic/laissez-faire-constitutionalism

991.[1] http://www.answers.com/topic/united-states-v-e-c-knight-co 156 U.S. 1 (1895) @ http://laws.findlaw.com/us/156/1.html

992.[1] http://www.answers.com/topic/hammer-v-dagenhart 247 U.S. 251 (1918) @ http://laws.findlaw.com/us/247/251.html

993.[1] http://www.answers.com/topic/bailey-v-drexel-furniture-co, 259 U.S. 20 (1922) http://laws.findlaw.com/us/259/20.html Oxford Companion: [A]rgued 7–8 Mar. 1922, decided 15 May 1922 by vote of 8 to 1; Taft for the Court, Clarke, without opinion, in dissent. Immediately following the unexpected invalidation of the first federal child labor law in 1918, Congress sought another way to protect dependent and exploited children in the workplace. With the two houses again virtually unanimous, the Child Labor Tax law was enacted (1919), its justification resting upon contemporary precedents, notably Chief Justice Edward D. White’s opinion in McCray v. United States [195 U.S. 27 (1904) @ http://laws.findlaw.com/us/195/27.html] [@ http://www.answers.com/topic/mccray-v-united-states], which sustained the imposition of confiscatory excises to end the production of offending articles.

While White lived, the Court did not render a decision in the first child labor tax case, Atherton v. Johnston (1922), but, following his death, the new chief justice, William Howard Taft, massed the bench in Bailey to invalidate the Child Labor Tax. His opinion sought to distinguish McCray and the other cases in which the Court had legitimated using the taxing power for regulatory purposes. The constitutionally sanctioned regulatory measures, he asserted, had involved “only . . . incidental restraint and regulation,” while the stigmatized statute imposed a penalty whose “prohibitory and regulatory effect” was palpable (pp. 36–37). As in Hammer v. Dagenhart (1918) [@ http://www.answers.com/topic/hammer-v-dagenhart], the Court found in Bailey that Congress had exceeded its authority and invaded the states’ internal affairs. Although Taft’s distinction lacked merit, the lone dissenter, Justice John H. Clarke, failed to challenge it. With the coming of the New Deal, this distinction began to erode but Congress relied primarily thereafter upon the commerce power to protect the social and economic welfare of the country.

Oxford Companion article by Stephen B. Wood

994.[1] 156 U.S. 1 (1895). http://laws.findlaw.com/us/156/1.html. Oxford Companion: In the first case to arise under the Sherman Antitrust Act, United States v. E. C. Knight Co. (1895), the government attempted to dissolve a monopoly of sugar processing, charging the American Sugar Refining Company was illegally restraining trade across state lines. The fact that an article was manufactured for export to another state, said the Court, did not make it part of interstate commerce. http://www.answers.com/topic/commerce-power

995.[1] 156 U.S. 1 (1895) @ http://www.answers.com/topic/united-states-v-e-c-knight-co

996.[1] http://www.answers.com/topic/hammer-v-dagenhart, 247 U.S. 251 (1918) @ http://laws.findlaw.com/us/247/251.html

997.[1] http://www.answers.com/topic/united-states-v-darby-lumber-co-1, United States v. Darby Lumber Co, 312 U.S. 100, 312 U.S. 657 (1941) @ http://laws.findlaw.com/us/301/1.html (1941).

998.[1] http://www.answers.com/topic/bailey-v-drexel-furniture-co, 259 U.S. 20 (1922) @ http://laws.findlaw.com/us/259/20.html

999.[1] http://www.answers.com/topic/laissez-faire-constitutionalism

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