Footnotes Vol. 3, The Kiss of Judice fns. 1000-1461

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.

1000 158 U.S. 564 (1895) @

1001 208 U.S. 274 (1908) @

1002, 208 U.S. 274 (1908) @

1003 158 U.S. 564 (1895) @, Oxford Companion: [A]rgued 25–26 Mar. 1895, decided 27 May 1895 by vote of 9 to 0; Brewer for the Court.

1004, 208 U.S. 274 (1908) @

1005 Loewe v. Lawlor, 208 U.S. 274 (1908) @ Oxford Companion: [A]rgued 4–5 Dec. 1907, decided 3 Feb. 1908 by vote of 9 to 0; Fuller for the Court.

Oxford Companion article by Barbara C. Steidle

1006, 208 U.S. 274 (1908) @

1007 Oxford Companion: Antitrust law consists of a body of statutes, judicial decisions, and enforcement activities designed to check business activities posing a threat to free‐market competition. The core antitrust concern with competition reflects a fundamental belief that economic questions are generally best determined in the American economy through a process of independent, competitive decision‐making by profit‐seeking firms striving to serve customers who seek maximum satisfaction through their choices among market alternatives. Antitrust law aims to protect economic competition by prohibiting collusive, exclusionary, and monopolistic practices that restrain competition and thereby pose a danger of increased prices and reduced output, quality, and innovation. It contrasts with other forms of economic regulation that directly prescribe the number, rates, and service offerings of particular firms, for example, in “natural monopoly” settings where economies of scale are thought to preclude active multifirm competition.

Basic Provisions and Long‐run Patterns

Anti‐trust law originated in reaction to tremendous economic changes in late nineteenth‐ and early twentieth‐century America. Since that time, federal antitrust developments have dominated the field, although state antitrust efforts also were prominent prior to World War I and have regained significance in recent years. Federal antitrust law is founded on three main enactments. Section 1 of the Sherman Antitrust Act of 1890, the most important of these acts, focuses on group behavior in broadly banning “[e]very contract, combination . . . or conspiracy” in restraint of interstate or foreign trade commerce; section 2 primarily targets the activities of individual firms in its prohibition of monopolization and attempted monopolization. The Clayton Act of 1914 specifically addresses the competitive dangers arising from price discrimination, “tying” arrangements, exclusive dealing, mergers, and interlocking directorates. The Federal Trade Commission Act of 1914 sweepingly empowers the administrative agency it establishes to police “unfair methods of competition.”

Violations of the Sherman Antitrust Act are punishable by substantial criminal penalties. In addition, private parties as well as the United States Department of Justice can seek injunctive relief against threatened violations of either the Sherman or Clayton Acts. The Federal Trade Commission is authorized to issue cease and desist orders ultimately enforceable through the federal courts to remedy breaches of either the Clayton Act or Federal Trade Commission Act. The United States and private parties also can collect three times the amount of the actual damages they have suffered as a result of conduct prohibited by the Sherman or Clayton Acts. Under parens patriae legislation passed in 1976, individual states can seek treble damages on behalf of natural persons residing within their borders who have been injured by Sherman Act violations.

Although grounded in legislative enactments, substantive antitrust doctrine since its inception has developed primarily through Supreme Court interpretation of federal antitrust statutes. Indeed, the centrality of the Court’s doctrinal role and the widespread belief that these measures are fundamental to the maintenance of the American free enterprise system often have prompted suggested parallels between constitutional and antitrust jurisprudence.

Over time, antitrust enforcement and interpretation repeatedly have changed course, reflecting larger changes and patterns in American economic, political, and intellectual life. Ever since the first antitrust acts were passed, moreover, the nature and purpose of antitrust law have been the subject of recurring debate. Some jurists, scholars, and enforcement officials have conceived of antitrust law’s protection of competition solely or primarily as a means to enhance economic efficiency and the overall maximization of social wealth. Others have placed greater stress on such ends as fairer wealth distribution, the preservation of individual business opportunity, and the protection of political freedom from potential threats posed by increased concentrations of private economic power. In recent years, even as such disagreements have continued, antitrust law has placed sharply increased emphasis on neoclassical economic perspectives stressing the promotion of economic efficiency. Today this trend prevails with respect to all four of the main types of conduct addressed by antitrust law: horizontal agreements among competitors, single‐firm activities directed toward the acquisition or maintenance of monopoly power, vertical arrangements among firms in a supplier‐purchaser relationship, and mergers.

Origins and Early Development

Late‐nineteenth‐century antitrust legislation and case law built upon earlier English and American responses to monopolies and restraints of trade. Early English and American restrictions on anticompetitive private behavior chiefly were contained in common‐law precedents on contracts, combinations, and conspiracies in restraint of trade. These precedents varied significantly among state jurisdictions and over time; no uniform body of American common law existed when the first antitrust laws were enacted.

As American markets expanded geographically in the post–Civil War decades, new technological innovations repeatedly boosted productivity in excess of demand, contributing to a sharp intensification of competitive rivalry in many lines of business. These developments prompted large numbers of late nineteenth‐ and early twentieth‐century American businesses to seek greater security and higher returns through various forms of multifirm combination. At first turning primarily to loose arrangements such as simple cartels, American businesses increasingly embraced tighter, more fully integrated combinations such as trusts, holding companies, and mergers beginning in the 1880s. As a series of major new trusts appeared in the later years of that decade, public concerns, which earlier had centered on disturbing railroad practices, shifted to focus more broadly on predatory business behavior, cartelization, and industrial concentration in general, prompting a burst of new antitrust activity at the state level. The perceived practical and legal limitations of state efforts, however, soon led to mounting popular pressure for new federal antitrust legislation, resulting in adoption of the Sherman Act of 1890.

In the debates preceding passage of the act, congressmen expressed strong support for the protection of competition and concerns to safeguard economic opportunity, fair consumer prices, efficiency, and political liberty. Scholars long have differed as to which of these values Congress primarily or even exclusively sought to promote. In late nineteenth‐century thinking, however, these goals and values typically were thought to be largely complimentary so that most congressmen may well have hoped to serve all of these ends simultaneously.

Neither the statute itself nor the congressional debates provided any detailed guidance as to the practical application of the act’s general language. Congress generally sought to incorporate the traditional common‐law restraint of trade approaches of the state courts, without any detailed understanding of what those doctrines had become by 1890. Congress intended to delegate significant authority to the federal courts to develop more precise doctrine. Passage of the act was an important symbolic affirmation of the basic ideal of competitive free markets, and the statute’s enforcement provisions went substantially beyond earlier common‐law doctrines that provided merely for the legal unenforceability of restrictive trade agreements.

The first decade after passage of the act saw only limited federal enforcement, partly as a result of the Supreme Court’s restrictive reading of congressional commerce‐clause authority in its rejection of a challenge to a monopolistic merger of sugar refineries in United States v. E.C. Knight Co. (1895), the Court’s first consideration of the statute. Within a few years, however, the Court strongly supported the application of the act in a variety of other contexts, beginning with cases against railroad cartels in the late 1890s. A dramatic acceleration in the growth of overall economic concentration as a result of a major new wave of mergers in the late 1890s and early 1900s heightened public apprehension and led to increased federal enforcement efforts under Presidents Theodore Roosevelt and William Howard Taft. These efforts produced a number of Supreme Court victories, climaxing in the Court’s decisions in Standard Oil v. United States (1911) [@] and United States v. American Tobacco Co. (1911). In those cases, the Court ordered the dissolution of two of the greatest industrial combinations of the day to remedy violations of the Sherman Act, although in a way that did not effectively dissipate the concentrated economic power established by those combinations.

During these years, the Supreme Court debated the proper general standard of Sherman Act analysis. Initially dominant was Justice Rufus W. Peckham’s rejection of any defense of “reasonableness” for challenged restraints and his view that the act condemned any agreement directly and immediately restraining competition and therefore trade in interstate or foreign commerce. Chief Justice Edward D. White was the chief proponent of the alternative rule “rule of reason” position that ultimately triumphed in the Court’s Standard Oil and American Tobacco opinions. Despite its name, Chief Justice White’s framework contemplated that certain types of agreements, because of their inherent nature, could be summarily condemned as anticompetitive without any extended inquiry into reasonableness. This aspect of the opinion foreshadowed the Court’s subsequent, more extensive development of the central, but often troubled, antitrust distinction between activities condemnable “per se” and those to be judged only after a “rule of reason” examination of purposes, market power, effects, and possible less restrictive alternatives available to achieve particular legitimate ends.

The Supreme Court’s affirmation of a “rule of reason” approach revitalized political controversy over antitrust law. This subject became a main focus of the three‐way presidential race between Theodore Roosevelt, William Howard Taft, and Woodrow Wilson in 1912. Following Wilson’s election, efforts to buttress the Sherman Act resulted in the 1914 passage of the Clayton and Federal Trade Commission Acts.

During World War I and the 1920s, concern over anticompetitive and monopolistic behavior substantially declined as Americans came to accept the increased level of economic concentration established during the Progressive Era, associating it with heightened economic prosperity. In these years, federal officials and the Supreme Court continued to condemn nakedly anticompetitive arrangements such as price fixing but encouraged other forms of cooperation among competing businesses such as the sharing of general data on business conditions.

From the New Deal to the 1970s

Public confidence in business and in the health of American markets collapsed with the stock market crash of 1929. Yet the federal government in the early years of President Franklin D. Roosevelt’s New Deal turned not to renewed antitrust enforcement but instead to expanded business cooperative efforts under the National Industrial Recovery Act. The Supreme Court held that act to be unconstitutional in Schechter Poultry Corp. v. United States [295 U.S. 495] (1935) [@], however, and later New Deal efforts proceeded in a very different direction. Spurred by a new economic downturn in 1937, concerns over the consequences of contemporary cartelization in Europe, and growing economic scholarship criticizing concentrated markets as typically productive of troublesome economic performance, federal antitrust activity soon expanded greatly. The intensified antitrust efforts begun in the later 1930s did not result in any significant rollback of the levels of economic concentration established in the early years of the twentieth century. They did, however, set the stage for a continued, bipartisan commitment in the succeeding decades to a much higher level of antitrust activity than had prevailed before the New Deal.

In this setting of expanded enforcement, anti‐trust case law grew substantially. In numerous decisions through the early 1970s the Supreme Court strongly supported the vigorous application of federal antitrust law, repeatedly displaying substantial skepticism toward cooperative business agreements, single‐firm activities promoting market preeminence, and mergers. While the Court continued to acknowledge that certain types of cooperation among competitors, such as general data dissemination or reasonably limited joint ventures, could improve efficiency and competitive performance in particular circumstances, the Supreme Court greatly increased its use of summary, per se rules to condemn such collective agreements as price fixing, output limitation, market division, and concerted refusals to deal, as well as vertical resale price maintenance agreements, non‐price restrictions imposed by individual manufacturers on dealers, and most tying arrangements whereby the purchase of one good is conditioned on the simultaneous purchase of another.

The Court strongly endorsed the landmark monopolization opinion in United States v. Aluminum Co. of America (Alcoa) (2d Cir., 1945), which exhibited considerable suspicion of the legitimacy of dominating market power in general and stressed the social and political as well as economic importance of antitrust law. While requiring both dominant market power and its acquisition or maintenance through wrongful conduct distinguishable from competition on the merits as elements of Sherman Act monopolization, the Alcoa decision limited the range of conduct deemed to be mere skill, foresight, and industry to a very narrow ambit.

Supreme Court merger decisions in the post–New Deal decades initially departed from these trends, permitting very large acquisitions under the Sherman Act. The Clayton Act’s original 1914 ban on anticompetitive mergers rarely was invoked because it applied only to stock and not asset acquisitions and did not extend beyond horizontal mergers to reach vertical and conglomerate acquisitions. Renewed economic, social, and political concerns for rising economic concentration in the 1940s, however, prompted Congress to amend the act to close these loopholes in 1950, leading the Court to limit permissible mergers by the 1960s. The Court then greatly limited the range of permissible merger activity, for example, condemning horizontal mergers creating companies with combined market shares as low as 5 percent. Exhibiting strong concerns for even early market trends toward increasing concentration, the Court acted to protect smaller competitors endangered by the creation of new, more efficient merged entities even where such protection sacrificed new cost savings and lower consumer prices potentially obtainable through the mergers the Court condemned.

Modern Antitrust Law

Over the last quarter‐century, major changes in the structure and patterns of global and national economic life have combined with fundamental shifts in the scholarly analysis of market behavior to alter antitrust enforcement and interpretation dramatically. Many areas of economic life have become more globalized, intensifying the competition faced by many firms in the United States at the same time that sentiment supporting government regulation in general has declined. Beginning in the latter half of the 1970s, the Supreme Court, lower federal courts, and federal enforcement agencies increasingly embraced strong economic critiques of previously prevailing antitrust doctrine that were urged most prominently by economists and law professors associated with the University of Chicago. These influential critical analyses heavily stressed the efficiency‐enhancing potential of diverse types of horizontal and vertical agreements, single‐firm activities, and mergers that previously had been viewed with considerable suspicion or hostility in antitrust law, and reflected a fundamental belief that in general markets powerfully tend to remain competitive without the need for potentially counterproductive government intervention.

Such neoclassical economic critiques powerfully continue to hold sway over much of current antitrust doctrine and enforcement philosophy. Over the last decade, however, economic life and scholarly outlook have continued to evolve and to affect the course of antitrust development in new ways. For example, antitrust scholars, enforcers, and courts have focused intently on the applicability of antitrust law to high‐technology companies in a new “information age” economy in which intellectual property development and protection have assumed magnified importance. At the same time, scholars, enforcers, and courts have debated the desirability of refining aspects of antitrust doctrine once again in light of still‐developing “post‐Chicago” economic perspectives. These perspectives posit a greater prevalence of market imperfections facilitating anticompetitive behavior than have been acknowledged by leading Chicago School theorists. To date, such post‐Chicago analyses have influenced the work of scholars and government enforcement agencies more than that of judges.

In the realm of case law development, the Supreme Court over the last twenty‐five years has retreated substantially, but not completely, from the invocation of per se rules for judging horizontal and vertical agreements. The Court’s movement away from per se analysis was signaled in its landmark opinion overturning the Court’s decade‐old per se condemnation of nonprice vertical restrictions on dealers (Continental T.V., Inc. v. GTE Sylvania, Inc., 1977). The Court found that such “intrabrand” restraints pro‐competitively can induce more aggressive interbrand promotional efforts by dealers desiring to reap the benefits of their own promotional efforts, by restricting the intensity of intrabrand rivalry and eliminating “free riders” who costlessly might take advantage of other dealers’ expensive promotional activity.

The Court similarly has narrowed the scope of per se treatment for horizontal agreements. While stressing that Sherman Act analysis focuses narrowly on whether a challenged restraint promotes or suppresses competition, the Court nevertheless has looked not simply to whether any business rivalry has been tempered, but also to whether any such effects have been offset by new gains in efficiency and output. At the same time, government criminal enforcement efforts against naked cartel restraints, which remain subject to per se condemnation, have intensified since the early 1980s. The number of prosecutions brought annually has increased greatly and government prosecutors recently have won convictions against long‐standing global cartels generating enormous amounts of illegal profits. Government prosecutors also successfully have pushed for the imposition of substantially increased fines and jail sentences for criminal antitrust convictions. In the merger area, the Supreme Court in the mid‐1970s substantially altered its previously restrictive approach to mergers, requiring a more thorough economic assessment of the likely competitive impact of particular acquisitions before mergers could be declared unlawful (see United States v. General Dynamics Corp., 1974). Since then, the Supreme Court has said little regarding substantive merger law standards, leaving further development to the lower federal courts. The federal courts of appeal have undermined reliance on presumptions from market share and market concentration data in merger cases, and have emphasized that strong evidence that new entry into a market will undercut inferences that a merger in that market will increase market power or facilitate its exercise.

Much of the change in the antitrust treatment of mergers since the 1970s has resulted from changes in federal enforcement policy. Although still reflecting concern that particular mergers may increase the risks of multi‐firm collusion or single‐firm market power, the revised merger guidelines adopted by the Department of Justice in the 1980s emphasized the potential economic benefits of merger activities and established substantially higher thresholds for antitrust challenges than had prevailed in earlier in earlier case law and department philosophy. The 1992 joint Department of Justice and Federal Trade Commission revised guidelines heightened the emphasis given to the unilateral exercise of market power by newly merged entities and provided more detailed guidance for assessing the potential for new entry to counteract the adverse effects of a merger. More recent guideline revisions expressed a greater willingness to allow otherwise problematic mergers where sufficiently strong evidence demonstrates that a merger likely would generate important, otherwise unattainable, efficiency gains.

In its limited modern treatment of monopolization issues, the Supreme Court contributed to continuing controversy over the extent of any obligation to cooperate with smaller rivals, the legality of various practices raising rivals’ costs, and the appropriate treatment of claims of predatory pricing. The Court has held, for example, that a dominant firm may not severely disadvantage a smaller competitor by discontinuing a long‐established cooperative marketing arrangement, at least in the absence of any plausible efficiency justification (Aspen Skiing v. Aspen Highlands Skiing Corp., 1985). On the other hand, the Court has tightened the criteria for proving unlawful predatory pricing, requiring more careful attention to both market structure and the relationship between a defendant firm’s costs and the prices it charged during the period of alleged predation. Two major milestones in government anti‐monopolization efforts were reached in 1982. In that year, the government dismissed its multiyear suit against the International Business Machines Corporation and settled its suit against the American Telephone and Telegraph Company. The latter settlement resulted in the largest divestiture in antitrust history, separating the company’s long distance service from its local operating companies. The AT&T litigation stood as the government’s last major monopolization case until the mid‐1990s, when the United States and several states charged the Microsoft Corporation with illegal monopolization and other antitrust violations.

The Microsoft case captured public attention as only relatively few cases, like the Standard Oil case of 1911, had in the history of antitrust law. The case highlighted the rise of expanded concerns over the applicability of antitrust law to “new economy,” high‐technology industries in which “network effects” (or “scale economies of consumption”) play a central role. In “network” industries, where the consumer value of a particular product, such as a telephone or a personal computer operating system, increases as the number of consumers using that product increases, firms have a tremendous incentive to compete to have their own product accepted as the industry standard. Once a standard is established, however, it may be difficult for other firms to challenge a dominant industry incumbent.

At its core, the complaint against Microsoft charged that the company had engaged in a variety of practices not justified as means to further business efficiency, that were undertaken with the aim of thwarting the possible rise of effective new competition to Microsoft’s monopoly in operating systems for Intel‐based personal computers. The United States District Court hearing the case found Microsoft guilty of illegal monopolization and ordered the parties to submit plans for the break up of the company into an operating system company and a software applications firm. The United States Court of Appeals for the D.C. Circuit upheld the great majority of the district court’s findings as to liability, concluding that Microsoft had failed to rebut government prima facie showings of exclusionary conduct through demonstration of efficiency justifications for Microsoft’s challenged conduct. After the Court of Appeals remanded the case for further proceedings as to remedy, the federal government and most, but not all, of the state plaintiffs joined in a settlement limiting Microsoft’s conduct but not requiring corporate restructuring. The United States District Court for the D.C. Circuit approved the settlement, retaining continuing jurisdiction to take any appropriate action necessary in the future to enforce the decree. That action currently is on appeal in the D.C. Circuit, along with the district court’s rejection of the non‐settling states’ request for further relief.

While most antitrust cases today still are brought by private parties rather than by government enforcers, the Supreme Court since the 1970s has made the maintenance of private antitrust actions more difficult by tightening standing requirements and encouraging lower courts to screen out more cases on the ground that the plaintiff’s theory is economically implausible. At the same time, the efforts of federal antitrust enforcers have been supplemented by the antitrust enforcement activities of attorneys general in various states and, in a global context, by the efforts of antitrust enforcement officials in other nations. More and more nations now have adopted their own antitrust laws, and in recent years there has been substantially increased cooperation among antitrust authorities in various countries designed to check more effectively anticompetitive activity crossing national borders.


Although the major developments discussed here have dominated antitrust law since the late nineteenth century, antitrust analysis also has focused on such other important issues as the scope of various exceptions to antitrust coverage, including exceptions for restraints attributable to state rather than private decision making and for First Amendment–protected activities. Today, in the midst of ongoing debate over economic analysis and substantive doctrine, the meaning of antitrust law’s protection of competition continues to evolve as American economic, intellectual, and political contexts continue to change.


Phillip Areeda and Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, 2d ed. (2000).

Robert Bork, The Antitrust Paradox: A Policy at War with Itself (1978).

Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America 1880–1990 (1992).

Ernest Gellhorn and William Kovacic, Antitrust Law and Economics, 4th ed. (1994).

Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and its Practice, 2d ed. (1999).

James May, Antitrust in the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis, 1880–1918, Ohio State Law Journal 50 (1989): 257–395.

Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law, rev. ed. (2001).

Martin J. Sklar, The Corporate Reconstruction of America, 1890–1916: The Market, the Law, and Politics (1988).

Hans Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (1955).

Oxford Companion article by James May

1008 156 U.S. 1 (1895) @

1009 See Index under “Commerce Power”

1010 See Index under “Commerce Power”

1011 See Index under “Citizens & Citizenship

1012 E.g.: Shapiro v. University for Women v. Hogan, 458 U.S. 718 (1982) @ 58&page=718 (gender segregation in schools); Califano v. Goldfarb, 430 U.S. 199 (1977) @ , (discrimination in social security benefits for women); Phyler v. Doe, 457 U.S. 202 (1982) @  (statute barring children of illegal aliens from public schools).

1013 Berger, The 14th Amendment and the Bill of Rights, p. 123. Senator Wilson stated, “Thousands and tens of thousands of harmless black men . . . have been wronged and outraged by violence, and hundreds upon hundreds have been murdered.”

1014 Berger, The 14th Amendment and the Bill of Rights, pp. 122-123.

1015 Bibliography:

Michael Kent Curtis, No State Shall Abridge: The 14th Amendment and the Bill of Rights (1986).

Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.

Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528

Oxford Companion article by Mark V. Tushnet

1016 ⊗ 118 U.S. 394 (1886) @

1017 347 U.S. 497 (1954) @

1018 347 U.S. 497 (1954). Oxford Companion: [A]rgued 10–11 Dec. 1952, reargued 8–9 Dec. 1953, decided 17 May 1954 by vote of 9 to 0; Warren for the Court.

Oxford Companion article by Dennis J. Hutchinson

1019, 347 U.S. 483 (1954) @

1020 See Index under “Equal Protection

1021 Oxford Companion @

1022 To George Washington, Ford 3:466 (1784), Real Jefferson, p. 419 AFL.

1023 Ford 10:39 (1816), Real Jefferson, p. 419 AFL.


1025 ⊗ 100 U.S. 303 (1880) @

1026 ⊗ 118 U.S. 356 (1886) @

1027 109 U.S. 3 (1883) @

Oxford Companion: [D]ecided 15 October 1883 by vote of 8 to 1; Bradley for Court, Harlan in dissent. Few decisions better illustrate the Supreme Court’s early inclination to interpret narrowly the Civil War Amendments than the Civil Rights Cases. There the Court declared unconstitutional provisions of the Civil Rights Act of 1875 that prohibited racial discrimination in inns, public conveyances, and places of public amusement. The decision curtailed federal efforts to protect African‐Americans from private discrimination and cast constitutional doubts on Congress’s ability to legislate in the area of Civil Rights, doubts that were not completely resolved until enactment of the Civil Rights Act of 1964.

The Civil Rights Cases presented two conflicting views of the Thirteenth and 14th Amendments. The conservative view saw the amendments in narrow terms: the Thirteenth Amendment simply abolished slavery; the 14th granted the freed people citizenship and a measure of relief from state discrimination. The more radical view believed the amendments helped secure to the freed people and others all rights of free people in Anglo‐American legal culture. Moreover, the amendments gave the national government authority to protect citizens against both state and private deprivations of rights.

Justice Joseph P. Bradley’s majority opinion rejected the more radical interpretation of the new amendments. He held that the 14th Amendment only prohibited state abridgement of individual rights. In Bradley’s view the 1875 Civil Rights Act was an impermissible attempt by Congress to create a municipal code regulating the private conduct of individuals in the area of racial discrimination. He asserted in dicta that even private interference with such rights as voting, jury service, or appearing as witnesses in state court were not within the province of Congress to control. An individual faced with such interference had to look to state government for relief. Bradley also rejected the contention that the Thirteenth Amendment allowed Congress to pass the 1875 legislation, declaring that denial of access to public accommodations did not constitute a badge or incident of slavery. In his view such a broad construction of the Thirteenth Amendment would make the freed person “the special favorite of the laws.”

In his dissent, Southerner and former slave‐holder Justice John Marshall Harlan rejected the majority’s narrow construction of the Civil War Amendments. Asserting that the decision rested on grounds that were ‘narrow and artificial,’ Harlan argued that the Thirteenth Amendment gave Congress broad powers to legislate to insure the rights of freed people (p. 26). He contended that the freedom conferred by the Thirteenth Amendment went beyond the simple absence of bondage. It encompassed freedom from the incidents of slavery, including all ‘badges of slavery’ (p. 35).

Along with the decision in the Slaughterhouse Cases (1873), which effectively stripped the 14th Amendment’s Privileges or Immunities Clause of significant meaning, and U.S. v. Cruikshank (1876), [] which upheld congressional efforts to protect blacks and others against private deprivations of constitutional rights,[] the Civil Rights Cases fashioned a 14th Amendment jurisprudence considerably less protective of individual rights than many of its framers had envisioned. The extent to which the Court’s narrow reading of 14th Amendment protections helped usher in and foster the era of extensive segregation in southern and other states is open to debate. But the Supreme Court’s decision in the Civil Rights Cases largely mandated the withdrawal of the federal government from civil rights enforcement. That withdrawal would not be reversed until after World War II.

[] Editor’s note: The italicized description of Cruikshank at first seems wrong. However, the decision, on defective allegations grounds, threw out a 16-count indictment against the defendants, including a denial of voting rights allegation that was based on the 15th Amendment. As the court noted, “In United States v. Reese et al., supra, p. 214, we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been.”

Oxford Companion: In 1964 Congress again passed legislation prohibiting discrimination in public accommodations. Ironically the Bradley opinion, which expressly did not rule on whether or not the Constitution’s Commerce Clause provided a basis for congressional legislation in this area, played a role in the drafting of the 1964 statute . . . . The 1964 act’s public accommodations provision was based on the Commerce Clause.”


Eugene Gressman, The Unhappy History of Civil Rights Legislation, Michigan Law Review 50 (1952): 1323–1358.

Oxford Companion article by Robert J. Cottrol

1028 See Index under “Privileges & Immunities


1030 ⊗, 163 U.S. 537 (1896) @



1033, 283 U. S. 359 (1931), 283 U. S. 369-370

1034 @ 303 U. S. 444 (1938), 303 U. S. 452

1035 @ 273 U. S. 536

1036 @ 286 U. S. 73

1037 @ 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722

1038 @ 297 U.S. 233 (1936)

1039 ⊗ @ 303 U.S. 444 (1938)

1040, 283 U. S. 369

1041 ⊗ 274 U.S. 380 (1927)

1042 @ 274 U. S. 380

1043 301 U. S. 242

1044, 268 U. S. 652, 268 U. S. 673

1045, 299 U. S. 353, 299 U. S. 365

1046, 268 U. S. 510

1047, 262 U. S. 390

1048 262 U. S. 404

1049 273 U. S. 284

1050 273 U.S. 536 (1927) @

1051, 286 U.S. 73 (1932) @

1052 303 U. S. 177, 303 U. S. 184 n 2


1054, 323 U.S. 214 (1944) @


1056 ⊗ 316 U.S. 535 (1942) @



1059; 394 U.S. 618 (1969) @

1060 411 U.S. 1 (1973) @

1061 Oxford Companion.



1064 See Index under “Equal Protection

1065 Oxford Companion article by Joel B. Grossman

1066 401 U.S. 424 (1971) @

1067 490 U.S. 642 (1989) @

1068 417 U.S. 622 (1974) @




1072; 458 U.S. 718 (1982) @

1073 518 U.S. 515 (1996) @

1074 453 U.S. 57 (1981) @



1077 473 U.S. 432 (1985) @


1079, 429 U.S. 190 (1976) @

1080 ⊗ 517 U.S. 620 (1996) @

1081, 539 U.S. 306 (2003) @

1082 Senator Wilson’s explanation of “immunities” was: “It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . .” Berger, Government by Judiciary, p. 179 @

1083 Slaughterhouse Cases, 83 U.S. 36 (1873) @

1084 Berger, Government by Judiciary, p. 37,; Currie, David, The Constitution in the Supreme Court: Limitations on State Power, 1865-1873, 51 U. Chi. L. Rev. 329, 348 (1983); Justice Hugo Black dissenting in Adamson v. California, 332 U.S. 46 (1947),; Pilon, Roger, “Freedom, Responsibility, and the Constitution”, 68 Notre Dame L. Rev. 3 527-28.

1085, Yick Wo v. Hopkins, 118 U.S. 356 (1886) (unequal administration of law) @

1086 “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Mass. Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979) @ Sex classifications “must serve important governmental objectives and must be substantially related to achievement of those objectives.”, Craig v. Boren, 429 U.S. 190, 197 (1976) @

1087 In forthcoming V4. See V1 “Prologue”

1088 E.g., Morey v. Doud, 354 U.S. 457, 463-64 (1957)

1089 “Judicial Verbicide: An Affront to the Constitution”, Modern Age, The First Twenty-Five Years, Panichas, George, Ed., Liberty Press, Indianapolis, Ind. (1988), p. 460, quoting Milton.

1090 See Index under “Constitution Generally”

1091 See Tables in “Table of Contents” in this Volume

1092 See Tables in “Table of Contents” in this Volume

1093 See Tables in “Table of Contents” in this Volume

1094, 469 U.S. 528 (1985) @

1095, 410 U.S. 113 (1973) @

1096, 469 U.S. 528 (1985)

1097, 5 U.S. 137 (1803) @

1098, 469 U.S. 528 (1985) @

1099 312 U.S. 100 (1941) @

1100 Berger, Federalism, p. 77, quoting from 312 U.S. 100, (1941) @ http:/

1101 Berger, Federalism, p. 81.

1102 Of the inclusion of a bill of rights, Madison initially said that it would be “highly politic for the tranquillity of the public mind, and the stability of the government, that we should offer something . . . to be incorporated in the system of government, as a declaration of the rights of the people.” 1 Annals of Congress 439-40, quoted in Erler, Edward J., “The 9th Amendment and Contemporary Jurisprudence”, The Bill of Rights, Original Meaning and Current Understanding, p. 436.

1103, Reynolds v. Sims, 377 U.S. 533 (1964) @

(and five others decided that day).

1104, Reynolds v. Sims, 377 U.S. 533, 624-25 (1964) @

1105, 370 U.S. 421 (1962) @

1106, Engel v. Vitale, 370 U.S. 421 (1962) @

1107 “[The court] sat almost as a continuous constitutional convention which, without submitting its proposals to any ratification or rejection, could amend the basic law.” Struggle for Judicial Supremacy, New York, N.Y. (1941), pp. x-xi.

1108, 370 U.S. 421 (1962) @

1109 See Cord, Robert L., Separation of Church and State, Historical Fact and Current Fiction, Baker Book House, Grand Rapids, MI (1988), p. 4.

1110 Letter to Danbury Connecticut Baptist Association, January 1, 1802, quoted in Cord, Separation of Church and State, p. 115.

1111 Cord, Separation of Church and State, p. 4.

1112 Cord, Separation of Church and State, p. 14, n. 43.

1113 Quoted in Berger, The 14th Amendment and the Bill of Rights, p. 6

1114 Story, Commentaries §1879 @

1115 §16

1116 Actually the establishment clause was first incorporated into the 14thdue process clause in Everson v. Board of Education, ⊗, 330 U.S. 1 (1947) @; see also Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948) @ Engel only repeated the same error.

1117 Quoted in Cord, Separation of Church and State, p. 162, n. 70.

1118, Engel v. Vitale, 370 U.S. 421 (1962) @

1119 Cord, Separation of Church and State, pp. 136-37.

1120 Rahe, Paul A., Vol. III, Republics, Ancient & Modern, University of North Carolina Press, Chapel Hill, N.C. (1994), p. 165, n. 88.

1121, Illinois ex rel McCollum v. Board of Education, 333 U.S. 203, 247 (1948) @

1122 “Religious Freedom at a Crossroads,” The Bill of Rights in the Modern State, p. 119-20.

1123 “The Supreme Court’s Civil Theology,” Modern Age—The First Twenty Five Years, p. 445.

1124, 32 U.S. 243 (1833) @

1125, 32 U.S. 243 (1833) @

1126 ⊗, 32 U.S. 243 (1833) @

1127 §16

1128Hamilton v. Regents, 293 U.S. 245 (1934);, Cantwell v. Connecticut, 310 U.S. 296 (1940) @

1129, Everson v. Board of Education, 330 U.S. 1 (1947) @; see also Illinois ex rel. McCollom v. Board of Education, 333 U.S. 203 (1948) @

1130, Gitlow v. New York, 268 U.S. 652 (1925) @; Fiske v. Kansas, 274 U.S. 380 (1927) @; Stromberg v. California, 283 U.S. 359 (1931).

1131, Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) @

1132, DeJonge v. Oregon, 299 U.S. 353 (1937) @

1133, DeJonge v. Oregon, 299 U.S. 353 (1937) @, Hague v. CIO, 307 U.S. 496 (1939) @; Bridges v. California, 314 U.S. 252 (1941)

1134 McDonald v. Chicago (2010) @

1135, Wolf v. Colorado, 338 U.S. 25 (1949) @;, Mapp v. Ohio, 367 U.S. 643 (1961) @

1136, Benton v. Maryland, 395 U.S. 784 (1969) @; Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel)

1137, Malloy v. Hogan, 378 ⊗ U.S. 1 (1964) @;, Griffin v. California, 380 U.S. 609 (1965) .html

1138, Chicago, B & Q Railroad v. City of Chicago, 166 U.S. 226 (1897) @

1139, Klopfer v. North Carolina, 386 U.S. 213 (1967) @

1140In re Oliver, 333 U.S. 257 (1948) @

1141, Duncan v. Louisiana, 391 U.S. 145 (1968) @

1142Irvin v. Dowd, 366 U.S. 717 (1961) @ Turner v. Louisiana, 379 U.S. 466 (1965) @

1143In re Oliver, 333 U.S. 257 (1948) @

1144, Pointer v. Texas, 380 U.S. 400 (1965) @ Douglas v. Alabama, 380 U.S. 415 (1965) @

1145Washington v. Texas, 388 U.S. 14 (1967) @

1146, Powell v. Alabama, 287 U.S. 45 (1932) @, Gideon v. Wainwright, 372 U.S. 335 (1963) @

1147, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) @,, Robinson v. California, 370 U.S. 660 (1962).

1148, Roe v. Wade, 410 U.S. 113, (1973) @, (9th Amendment mentioned as possible ground for overruling state abortion laws)

1149, Hurtado v. California, 110 U.S. 516 (1884) @

1150 Amendment 7

1151 Amendment 8

1152 Amendment 8

1153 291 U.S. 97 (1934) @

1154, 302 U.S. 319 (1937) @

1155, Malloy v. Hogan, 378 U.S. 1 (1964) @

1156 “Some Thoughts on Applied Federalism,” 6 Harv. J. of Law & Pub. Policy 51, 58 (1982).

1157 ⊗, 384 U.S. 436 (1966) @

1158 ⊗, 367 U.S. 643 (1961) @

1159, 367 U.S. 643 (1961) @

1160 People v. Defore , 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926)

1161 In the late 1980s, I wrote an article for A magazine, “Exclusively Yours” in which I cited the statistics in the text.

1162 Fine, Escape of the Guilty (1986) @

1163, 410 U.S. 113 (1973) @

1164, 410 U.S. 113 (1973) @

1165Roe and the decisions reaffirming it are equal in their audacity and abuse of judicial office to Dred Scott v. Sandford.” † Bork, Robert, Slouching Toward Gomorrah, Modern Liberalism and the American Decline, Harper Collins Publishers, New York, N.Y. (1996), p. 173. †

1166 As Hamilton said in 1789, the terms “due process” have a precise technical import, and are only applicable to the process and proceedings of courts . . . [and] never . . . to an act of the legislature.” Quoted in Berger, Government by Judiciary, p. 196, n. 11 @

1167 Bork, Slouching Toward Gomorrah, Modern Liberalism and the American Decline, p. 173.

1168 We should note that a law banning “partial birth abortions” was recently upheld by a narrow majority in the U.S. Supreme Court.

1169 ⊗ 383 U.S. 413 (1966) @

1170 See Index under “Due Process

1171 Blackstone, Commentaries @

1172 ⊗, 491 U.S. 397 (1989) @

1173, Texas v. Johnson, 491 U.S. 397 (1989) @

1174, Roth v. United States, 354 U.S. 476, 482-83 (1957).

1175, Texas v. Johnson, 491 U.S. 397 (1989) @

1176 “May Society Preserve a Modicum of Decorum in Public Discourse?”, The Bill of Rights, Original Meaning and Current Understanding, p. 107.

1177 State v. Janssen, 213 Wis.2nd 431 @ In its unanimous opinion throwing out the defendant’s flag desecration charge, the court described the facts: “The facts giving rise to the flag desecration charge are substantially undisputed. Matthew Janssen and a group of his friends began stealing American flags from various locations in the City of Appleton. One of the flags stolen was from the flag pole located at the Reid Municipal Golf Course. The golf course flag was replaced, and again removed by Janssen and his friends. Janssen then defecated on the flag, and placed it at the front entry of the clubhouse. The soiled flag was cleaned and once more displayed on the golf course flag pole. Again Janssen stole the flag, this time leaving behind a handwritten note. The note was inscribed with an encircled “A” in the upper-right-hand corner, and read as follows:

Golf Course Rich F__ks: When are you dumb f__ks going to learn? We stole you’re [sic] first flag and burnt [sic] it, then we used your second flag for a sh__-rag and left it on your doorstep with a peice [sic] of sh__. The ANARCHIST PLATOON HAS INVADED Appleton and as long as you put flags up were [sic] going to burn them you yuppie f__ks. Shove you’re [sic] cluB [sic] up you’re [sic] a__.” * * *

Janssen was charged with flag desecration under “§946.05 Flag desecration. (1) Whoever intentionally and publicly mutilates, defiles, or casts contempt upon the flag is guilty of a Class E felony. (2) In this section ‘flag’ means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.

The Wisconsin Court of Appeals based its decision on the grounds that the flag desecration statute, was unconstitutionally “overbroad”.


1179, Texas v. Johnson, 491 U.S. 397 (1989) @

1180, Texas v. Johnson, 491 U.S. 397 (1989) @



Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1982).

Philip P. Frickey and Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases, Yale Law Journal (2002): 1707–1756.

Kermit L. Hall, ed, Federalism: A Nation of States—Major Historical Interpretations (1987).

Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973).

Paul L. Murphy, The Constitution in Crisis Times, 1918-1969 (1972).

Robert Post, The Supreme Court, 2002 Term: Foreword: Fashioning the Legal Constitution: Culture, Courts and Law, Harvard Law Review 117 (2003): 4–112.

Harry N. Scheiber, Federalism and Legal Process: Historical and Contemporary Analysis of the American System, Law and Society Review 10 (1980): 663–672.

Harry N. Scheiber, Redesigning the Architecture of Federalism—An American Tradition, Yale Law and Policy Review/Yale Journal of Regulation, Symposium Issue (1996): 227–296.

Harry N. Scheiber and Malcolm M. Feeley, eds. Power Divided: Essays on the Theory and Practice of Federalism (1988).

Bernard Schwartz, From Confederation to Nation: The American Constitution, 1837–1877 (1973)

Oxford Companion article by Harry N. Scheiber


1183 11 U.S. 32 (1812) @

1184 Oxford Companion: 11 U.S. 32 (1812), submitted without oral argument, decided 13 Feb. or 14 Mar. 1812 by unknown vote.

Oxford Companion article by Suzanna Sherry


1186 23 U.S. 152 (1825) @

1187 23 U.S. 152 (1825) @


1189 19 U.S 264 (1821) @

1190 19 U.S 264 (1821) @

1191 See Index under “Sovereign Immunity

1192 17 U.S. 316 (1819) @

1193 “That a final judgment or decree in any suit in the highest court of law or equity of a state in which a decision in the suit could be had . . . where is drawn in question the validity of a statute or of an authority exercised under any state on the ground of their being repugnant to the Constitution, treaties, or laws of the United States and the decision is in favor of such their validity . . . may be reexamined and reversed or affirmed in the Supreme Court of the United States.”

1194 See Index under “Federal Judicial Jurisdiction”


1196 ⊗ 22 U.S. 1 (1824) @

1197 ⊗ 27 U.S. 245 (1829) @

1198 See Index under “Commerce Power”

1199 See Index under “Commerce Power”

1200, 27 U.S. 245 (1829) @

1201 ⊗ 32 U.S. 243 (1833) @


1203 See Index under “Due Process


1205 See Index under “Constitution Generally”


Oxford Companion article by Douglas W. Kmiec

1207 See Index under “Commerce Power”


Oxford Companion article by Douglas W. Kmiec

1209 There is a list of the impairment cases within another list. See


1211 Forthcoming V4, §18


1213, 19 U.S. 264 (1821) @

1214, 17 U.S. 316 (1819) @

1215 See Index under “Necessary & Proper”


1217, 10 U.S. 87 (1810) @

1218 17 U.S. 518 (1819) @

1219, 22 U.S. 1 (1824) @

1220 ⊗, 32 U.S. 243 (1833) @

1221 Forthcoming V4. §18.

1222 See Index under “State Powers Denied”

1223 Article 1, §10


1225, 36 U.S. 102 (1837) @


1227 See Index under “Commerce Power”


1229, 53 U.S. 299 (1851) @


1231 48 U.S. 283 (1849)



1234, 62 U.S. 506 (1858) @

1235 ⊗ 62 U.S. 506 (1859) @ Oxford Companion: [A]rgued 19 Jan. 1859, decided 7 Mar. 1859 by vote of 9 to 0; Taney for the Court.


Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975)

Oxford Companion article by Aviam Soifer

1236⊗,62 U.S. 506 (1858) @

1237, 17 U.S. 316 (1819) @

1238, 60 U.S. 393 (1856) @


1240 See Index under “Declaration”

1241 See Index under “Federal Judicial Jurisdiction”



1244 See Index under “Federal Judicial Jurisdiction”


1246 53 U.S. 443 (1851) @

1247 On federal courts’ admiralty jurisdiction, see §5.36—“To all cases of admiralty and maritime jurisdiction


1249; 41 U.S. 1 (1842) @

1250 304 U.S. 64 (1938) @

1251 41 U.S. 1 (1842), Oxford Companion: [A]rgued 14 Jan. 1842, decided 25 Jan. 1842 by vote of 9 to 0; Story for the Court.

1252 41 U.S. 1 (1842) @

1253 304 U.S. 64 (1938). Oxford Companion: [A]rgued 31 Jan. 1938, decided 25 Apr. 1938 by vote of 8 to 0; Brandeis for the Court; Butler, McReynolds, and Reed concurring; Cardozo not participating.


John H. Ely, “The Irrepressible Myth of Erie”, Harvard Law Review 87 (1974): 693–740.

Edward A. Purcell, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth‐century America (2000).

Oxford Companion article by William M. Wiecek

1254 41 U.S. 1 (1842) @ http: //


1256 304 U.S. 64 (1938) @




1260 96 U.S. 1 (1877) @



1263 See Index under “Federal Judicial Jurisdiction”

1264 See Index under “Commerce Power”


1266 ⊗ 94 U.S. 113 (1876) @

1267 118 U.S. 557 (1886) Oxford Companion: [A]rgued 14–15 Apr. 1886, decided 25 Oct. 1886 by vote of 6 to 3; Miller for the Court, Bradley, Waite, and Gray in dissent.

1268 See Index under “Commerce Power”

1269 See Index under “Commerce Power”

1270 See Index under “Separation of Powers

1271 Hayek, Constitution of Liberty, p. 153

1272 94 U.S. 113 (1877) @

1273 See Index under “Cases”

1274 Article 1, §10. “No Bill of Attainder or ex post facto Law shall be passed.

1275 See Index under “Cases”

1276 118 U.S. 557 (1886). Oxford Companion: [A]rgued 14–15 Apr. 1886, decided 25 Oct. 1886 by vote of 6 to 3; Miller for the Court, Bradley, Waite, and Gray in dissent.

Oxford Companion article by Stephen A. Siegel

1277 ⊗ 53 U.S. 299 (1851) @

1278 See Index under “Commerce Power”

1279 See Index under “Commerce Power”

1280 Article I, §11, Wisconsin Constitution @


1282 See Index under “Commerce Power”



1285 ⊗ 291 U.S. 502 (1934) @

1286 ⊗ 290 U.S. 398 (1934) @


1288 295 U.S. 495 (1935) @

1289 V1


1291 297 U.S. 1 (1936) @

1292 V1

1293 297 U.S. 1 (1936). Oxford Companion: [A]rgued 9–10 Dec. 1935, decided 6 Jan. 1936, by vote of 6 to 3; Roberts for the Court, Stone, Brandeis, and Cardozo in dissent.

1294 297 U.S. 1 (1936) @



1297 §11; see also Index under “General Welfare”




1301 301 U.S. 548 (1937) @

1302 ⊗ 307 U.S. 38 (1939) @



1305 §11



1308 See Index under “Commerce Power”




1312 West’s Encyclopedia of American Law @ “The Wagner Act, also known as the National Labor Relations Act of 1935 (29 U.S.C.A. § 151 et seq.), is the most important piece of labor legislation enacted in U.S. history. It made the federal government the arbiter of employer-employee relations through the creation of the National Labor Relations Board (NLRB) and recognized for the first time the right of workers to organize and bargain collectively with their employers. The act overturned decades of court decisions that asserted that labor unions violated an employee’s liberty of contract.

Senator Robert F. Wagner, a Democrat from New York, introduced the legislation in 1935, when the United States was in the midst of the Great Depression. President Franklin D. Roosevelt initially opposed the legislation out of fear that labor organizing might interfere with economic recovery, but gave his support when passage became inevitable.

Congress based its right to pass national labor-management legislation on the U.S. Constitution’s Commerce Clause. The act states that unequal bargaining power between employees and employers leads to economic instability, whereas the refusal of employers to recognize the right to bargain collectively leads to strikes. Because these disturbances impede the flow of interstate commerce, Congress may take steps to continue the free flow of commerce by encouraging collective bargaining and unionizing.

The Wagner Act established the rights of employees to organize, join, or aid labor unions and to participate in collective bargaining through their representatives. The act also authorized unions to take “concerted action” for these purposes. This meant that workers could lawfully strike and take other peaceful action as a way of placing pressure on an employer. This provision was coupled with another that prohibited employers from engaging in unfair labor practices that interfere with the union rights of employees. Unfair labor practices include prohibiting employees from joining unions, firing employees because of their union membership, or establishing a company-dominated union. In addition to requiring employers to bargain collectively with the union duly selected by the employees, the act set up procedures for establishing appropriate bargaining units (homogeneous groups of employees) where employees can elect a bargaining agent (a representative for labor negotiations) by a secret ballot.

The act also created the NLRB, a federal administrative agency, to administer and enforce its unfair labor practice and representation provisions. The NLRB hears cases involving unfair labor practices and makes decisions that the federal courts of appeals may review.

At the time of its enactment, some observers doubted that the Wagner Act would be found constitutional by the U.S. Supreme Court. The Court had struck down numerous New Deal statutes on the basis that business and labor laws were matters that should be left to the marketplace or to state legislatures. In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), however, the Court reversed course and held that the Wagner Act was constitutional.

The Wagner Act was one of the most dramatic legislative measures of the New Deal. Not only did the legislation indicate that the federal government was prepared to move against employers to enforce the rights of labor to unionize and to bargain collectively, but it imposed no reciprocal obligations on unions.

The law was amended by the Taft-Hartley Act of 1947, also known as the Labor Management Relations Act (29 U.S.C.A. § 141 et seq.), which balanced some of the advantages given to unions under the Wagner Act by imposing corresponding duties upon unions to deal fairly with management. The act was further modified by the Landrum-Griffin Act of 1959 (29 U.S.C.A. § 401 et seq.), which sought to end abuses of power by union officials in handling union funds and internal affairs.”


1314, Wickard v. Filburn, 317 U.S. 111 (1942) @



1317 ⊗ 367 U.S. 740 (1961) @

1318 297 U.S. 1 (1936) @

1319, 394 U.S. 618 (1969) @

Oxford Companion article by C. Herman Pritchett


1321 304 U.S. 64 (1938) @


1323 347 U.S. 483 (1954) @


1325 347 U.S. 483 (1954) @

1326 See Index under “Equal Protection


1328, Reynolds v. Sims, 377 U.S. 533 (1964) @ (and five others decided that day)

1329 See Index under “Equal Protection

1330, Reynolds v. Sims, 377 U.S. 533 (1964) @ (and five others decided that day)


1332 379 U.S. 241 (1964) @

1333 ⊗ 383 U.S. 301 (1966) @


1335 379 U.S. 241 (1964). Oxford Companion: [A]rgued 5 Oct. 1964, decided 14 Dec. 1964 by vote of 9 to 0; Clark for the Court, Black, Douglas, and Goldberg concurring.

Oxford Companion article by Steven Puro

1336 ⊗ 22 U.S. 1 (1824) @

1337 See Index under “Commerce Power”




1341 379 U.S. 294 (1964) @


379 U.S. 294 (1964), Oxford Companion: [A]rgued 5 Oct. 1964, decided 14 Dec. 1964 by vote of 9 to 0; Clark for the Court, black, Douglas, and Goldberg in separate concurrences.

Oxford Companion article by Thomas R. McCoy

1343 317 U.S. 111 (1942) @








1351 410 U.S. 113 (1973), Oxford Companion: [A]rgued 13 Dec. 1971, reargued 11 Oct. 1972, decided 22 Jan. 1973 by vote of 7 to 2; Blackmun for the Court, Douglas, Stewart, and Burger concurring, White and Rehnquist in dissent.

1352 V4




1356 The federal act was struck down: “Because the Act’s take-title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives—either accepting ownership of waste or regulating according to Congress’ instructions—the provision lies outside Congress’ enumerated powers, and is inconsistent with the 10th Amendment. On the one hand, either forcing the transfer of waste from generators to the States or requiring the States to become liable for the generators’ damages would “commandeer” States into the service of federal regulatory purposes. On the other hand, requiring the States to regulate pursuant to Congress’ direction would present a simple unconstitutional command to implement legislation enacted by Congress. Thus, the States’ ‘choice’ is no choice at all.” Syllabus.

1357 521 U.S. 98 (1997)., Oxford Companion: [A]rgued 3 Dec. 1996, decided 27 June 1997 by vote of 5 to 4; Scalia for the Court, O’Connor and Thomas concurring, Stevens, Souter, Ginsburg, and Breyer in dissent.

In his attempt to assassinate President Ronald Reagan in 1981, John Hinckley gravely wounded White House press secretary James Brady. After years of lobbying, Congress, relying on the Commerce Clause of the Constitution, finally passed in 1993 the Brady Handgun Violence Prevention Act, which required, among other things, a waiting period of five days to purchase a handgun and charged the chief local law enforcement officials, such as county sheriffs, to conduct background checks on persons seeking to purchase weapons. Under these provisions of the law, approximately sixty‐six hundred applications a month were rejected because the would‐be purchasers fell into one of several proscribed categories, such as felons and drug users. Two sheriffs, Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, challenged the law successfully in separate lower federal court lawsuits, arguing that the federal law had placed an undue burden on local law enforcement officials. The United States Court of Appeals for the 9th Circuit subsequently heard the appeal from the federal government and upheld the law. Printz then appealed.

A bitterly divided Court agreed with Printz. Justice Antonin Scalia’s opinion alluded to both the limits of the Commerce Clause and to the 10th Amendment to the Constitution, which grants to the states powers that the Constitution does not give to the national government. Scalia’s opinion, however, rested mostly on his and the majority’s understanding of the federal structure of the nation in striking down the background‐check provision of the law (see Federalism). Scalia insisted that the federal principle of dividing power between the states and the national government was one of the primary means by which the Constitution protected liberty. As a result, the federal government could no more order state officials to administer federal law than state officials could order federal officials to administer state law. Moreover, Scalia insisted that the principle was categorical, meaning that there could be no test that would balance state and federal interests in such a way as to give the advantage to the federal government. Scalia’s opinion was one of the most remarkable assertions by the Court in favor of state authority in the history of the nation.

The dissenters were diametrically opposed to the majority. Justice John Paul Stevens argued that when Congress acted within one of its express grants of authority, such as the commerce power, it was supreme and had to be obeyed. Indeed, Stevens and the other dissenters could not imagine the American nation in any other way. The legislation passed by Congress, he claimed, was as binding on the states as were laws passed by the legislatures of the states themselves. The federal government, he continued, was entirely within its authority to require local officials to help administer the background‐check provisions of the Brady bill, Such enforcement action, Stevens concluded, imposed a minor burden on the states and not the massive incursion that Scalia described in his opinion.

The actual impact of the decision on the administration of justice was limited. The decision did relieve the chief local law enforcement officials from performing background checks, but under the terms of the Brady bill their duties were scheduled to end in 1998 in any case, to be replaced by a federal record‐checking system administered by gun dealers. Still the constitutional importance of the decision was clear enough. It marked the ascension of state power in Supreme Court decision making and a continuation of the aggressive effort by Chief Justice William H. Rehnquist and the conservative majority on the Court to readjust the state‐federal balance in favor of the states. Indeed, Justice Clarence Thomas, in a concurring opinion, concluded that, given the Second Amendment’s reference to the “right of the people to keep and bear Arms,” Congress probably had no authority to regulate intrastate gun sales under any circumstances.

Oxford Companion article by Kermit L. Hall


1359 See Index under “State Sovereign Immunity

1360 See Index under “Federal Judicial Jurisdiction”


1362 2 U.S. 419 (1793) @


1364 2 U.S. 419 (1793) @ Oxford Companion: [A]rgued 5 Feb. 1793, decided 18 Feb. 1793 by vote of 4 to 1; seriatim opinions by Jay, Cushing, Wilson, and Blair, Iredell in dissent. The first great case decided by the Court, Chisholm presented a conflict between federal jurisdiction and state sovereignty. The plaintiff, a citizen of South Carolina and the executor of a South Carolina merchant, sued the state of Georgia for the value of clothing supplied by the merchant during the Revolutionary War. Georgia refused to appear, claiming immunity from the suit as a sovereign and independent state. The Constitution (Article III, sec. 2) extended federal judicial power to controversies between “a State and Citizens of another State” . . . . The Court entered a default judgment against Georgia. The opinions of James Wilson and John Jay were ringing declarations of the nationalist view that sovereignty resided in the people of the United States “for the purposes of Union” and that as to those purposes Georgia was “not a sovereign state” (p. 457). Chisholm roused old Antifederalist fears of “consolidation” while raising the prospect of creditors flocking to the federal courts. The immediate consequence of the decision was action by Congress ultimately leading to the 11th Amendment (1798), which took away jurisdiction in suits commenced against a state by citizens of another state or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment.

Oxford Companion article by Charles F. Hobson


1366 ⊗ 19 U.S. 264 (1821) @, Oxford Companion: [A]rgued 13 Feb. 1821, decided 3 Mar. 1821 by vote of 6 to 0; Marshall for the Court. Philip and Mendes Cohen sold lottery tickets in Virginia under the authority of an act of Congress for the District of Columbia. The Cohens appealed their conviction for violating the state statute, which had banned such lotteries. Virginia asserted that the 11th Amendment precluded the Supreme Court from hearing the case and that section 25 of the Judiciary Act of 1789 did not apply.

The Cohens case reflected the effort by several states, including Virginia, to challenge John Marshall’s opinion in McCulloch v. Maryland (1819). Marshall seized on Cohens, which some historians believed was contrived, to reemphasize federal judicial power. He asserted that the Constitution made the Union supreme and that the federal judiciary was the ultimate constitutional arbiter. While the states could interpret their own laws, any federal question must ultimately be resolved, as section 25 provided, only by the federal courts. The 11th Amendment did not prevent federal courts from deciding properly a legitimate federal question, even where a state was the appellee.

Marshall avoided Virginia noncompliance by holding that the lottery statute applied only in the District of Columbia, but Virginia states’ rights advocates nonetheless blasted his judicial nationalism.

Oxford Companion article by Kermit L. Hall

1367 See Index under “Federal Judicial Jurisdiction”

1368 Article 3, §3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

1369 The congress had no power to expand admiralty jurisdiction into fresh waterways. The powers most-closely related to admiralty jurisdiction lies in Article 1, §8, Cls. 10-11, granting congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; and “To . . . make Rules concerning Captures on Land and Water”. There also is this grant of jurisdiction to the federal courts in Article 3, §2: The judicial Power shall extend to * * * all Cases of admiralty and maritime Jurisdiction”.



1372 133 U.S. 529 (1890) @



1375 New Hampshire v. Louisiana, 108 U.S. 76 (1883) @

1376 Combined with New Hampshire v. Louisiana.

1377 Per syllabus.


1379 134 U.S. 1 (1890)




1383 377 U.S. 184 (1964) @

1384 “That statute provides that ‘every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,’ and that ‘under this chapter an action may be brought in a district court of the United States . . . .’” 45 U.S.C. 51, 56.

1385 See Index under “Commerce Power”


1387 “Section 504 provides that no handicapped person shall, solely by reason of his handicap, be subjected to discrimination under any program receiving federal financial assistance under the Act. Section 505(a) makes available to any person aggrieved by any act of any recipient of federal assistance under the Act the remedies for employment discrimination set forth in Title VI of the Civil Rights Act of 1964.”

1388 Per syllabus.



1391 517 U.S. 44 (1995) @

1392 134 U.S. 1 (1890) @


1394 See Index under “Constitution Generally”

1395 527 U.S. 706 (1999) @


1397 527 U.S. 706 (1999) @

1398 410 U.S. 113 (1973) @


1400 527 U.S. 706 (1999) @


1402 426 U.S. 833 (1976) @

1403 379 U.S. 294 (1964) @

1404 384 U.S. 641 (1966) @

1405 See Index under “Commerce Power””










1415 317 U.S. 111 (1942) @

1416, Civil Rights Cases, 109 U.S. 3 (1883) @

1417 See Index under “Cases”


1419 494 U.S. 872 (1990) @

1420 See Index under “Due Process

1421 See Index under “Constitutional Amendments”


1423 494 U.S. 872 (1990) @

1424 98 U.S. 145 (1878) @

1425 See Index under “Privileges & Immunities


1427⊗ 494 U.S. 872 (1990) @


1429 521 U.S. 507 (1997) @



1432 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”




Engel, Steven A. “The McCulloch Theory of the 14th Amendment: City of Boerne v. Flores and the Original Understanding of Section 5.” Yale Law Journal 109 (1999): 115–154.

McConnell, Michael W. “Institutions and Interpretations: A Critique of City of Boerne v. Flores.Harvard Law Review 111 (1997): 153–195.

Symposium: “State and Federal Religious Liberty Legislation: Is It Necessary? Is It Constitutional? Is It Good Policy?” Cardozo Law Review 21 (1999): 415–806.

Oxford Companion article by William M. Wiecek

1435 521 U.S. 507 (1997) @

1436 5 U.S. 137 (1803) @




1440 See Index under “Federal Judicial Jurisdiction”


1442 See Index under “General Welfare


1444 ⊗ 517 U.S. 620 (1996) @

1445 ⊗


1447 ⊗ 517 U.S. 620 (1996) @

1448 See Index under “Privileges & Immunities


1450 ⊗








1458 See Index under “Due Process



1461 See Index under “Privileges & Immunities

Published in: on December 4, 2013 at 12:53 pm  Leave a Comment  

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