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CNP POS 2041

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Published on February 28, 2009

Author: jdgranger

Source: slideshare.net

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This is the Power Point Notes for POS 2041 UCF and VCC Courses
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“ The Will of the People: The Supreme Law” WELCOME TO POS 2041: U.S. GOVERNMENT J. David Granger M.P.A. PhD/ABD [email_address]

Notes and Study Packet for POS 2041: United States Government This is the study and notes packet for the POS 2041 class. This packet was designed as a supplemental aid in conjunction with the text and other materials that the instructor may give you. Contents Module 1: Foundations and Institutions of U.S. Government Section 1A: Philosophical foundations of U.S. Government Section 1B: The Constitution: Formation Section 1C: Article I: Legislature Section 1D: Article II: Presidency Section 1E: Articles IV - VI Section 1C: Federalism Module 2: Civil Liberties and Civil Rights Section 1A: Article III: Judiciary Section 2B: Amendment XIV: Due Process and Incorporation Section 2C: First Amendment

Notes and Study Packet for POS 2041: United States Government Section 2D: Fourth Amendment Section 2E: Fifth Amendment Section 2F: Sixth Amendment Section 2G: Ninth Amendment Section 3H: Obscenity (First Amendment) Section 3I: Civil Rights

The Foundations of Government: Political Theory Western ideals of government stem from two dominant philosophical theories: Republicanism and Liberalism Republicanism has a long history. Its origin is Aristotle, and its strongest articulation is probably found in Machiavelli. Republicanism stresses the role of community and society, and other collective endeavors, called “civil society” in contemporary terms. The culturally imbedded moral or “civic virtue” of citizens and leaders is integral to fulfillment of human well being and to the preservation of the collective organization, the nation-state since 1648. Liberalism has a shorter history; its origin is Hobbes, but its best articulation is probably found in Adam Smith. Liberalism emphasizes the individual rather than the collective. The primary mover in liberalism is self interest. The state’s function is to provide the framework and order necessary for individuals to carry out their self interests, i.e. develop and enforce property laws.

The Foundations of Government: Aristotle Aristotle (384 – 322 BC) argued that human beings are political animals. Therefore, political actuation can only truly occur in the polis (city-state). “The city exists for the sake of living well.” Aristotle’s political thought is teleological; the city-state is the natural apex of human organization. “ The function of a man is the exercise of his soul, in accordance with a rational principle.” “The function of a good man is to exert such activity well.” “The best societies and states are therefore rational and moderate ones that foster a collective spirit of mutual cooperation and respect.” This means that individuals must think of themselves as citizens first and actively participate in political life, not just passively obey the law. Aristotle’s political philosophy isn’t exactly startling, but it avoids the utopianism of Plato’s Republic. If infallible experts do not exist, then politics has to be something rather more pragmatic. Aristotle’s influence can be seen in contemporary theories of government that emphasize “civil society.” Moral “civic virtue” is culturally imbedded; therefore, its inculcation through education is necessary.

The Foundations of Government: Political Theory - Machiavelli Niccolo Machiavelli (1469-1527) was a Florentine diplomat who did something unusual – he described the behavior of politicians and wrote about politics as it is rather than prescribing what it should be. Historically, The Prince has earned Machiavelli much disrepute for what is often taken to be the avocation of treachery and opportunism. To believe that is, however, to misunderstand Machiavelli’s true intentions. Machiavelli also wrote a book called The Discourses , which discusses the role of citizens and not just rulers. What Machiavelli did was to reincorporate Aristotle with pragmatism and without teleology. The basic premise of The Prince and The Discourses involves laying out what is necessary for the preservation of the republic. The preservation of the state imparts different characteristics and actions for leaders and citizens. A leader who wants to preserve his state had best be prepared to do whatever is necessary - even if it involves the abandonment of religious ethics. A good example in The Prince involves the use of an “economy of violence.” Violence is wrong in itself, but a measured use of it is necessary if the republic is threatened. A republic is sustained through the characteristics and actions of its citizens. Civic virtue is very important to the preservation of the republic. Thus, a republic cannot afford for its citizens to be strongly autonomous. Citizens must have a sense of allegiance to the republic or it will not be sustained. “The good man is identified with the citizen, with the result that his goodness, rather than being purely individual, depends crucially on that of others.”

The Foundations of Government- Hobbes Hobbes’(1588-1679) argument is profoundly different from preexisting Republican ideals. It is different because his argument is based on the assumption that humans are inherently anti-social. In the state of nature, life was “solitary, poor, nasty, brutish, and short.” “Individuals will act quite rationally in order to produce a situation that none of them wants.” The way out of the state of nature was for people to form a contract between themselves and a sovereign. The sovereign provides a modicum of security for the people. This sovereign cannot be removed unless he violates “the natural right of self preservation.” Hobbes contract theory is significant because it departs from Republican ideals. However, it has inherent problems in that does not account for altruism and generosity. Furthermore, Hobbes assumes that individuals go directly from the state of nature to the political state without recourse to an intermediate state such as civil society.

John Locke (1632-1704) was an important source of ideas for the burgeoning U.S. government. In essence, Locke’s ideals represent a much softened version of Hobbes. Like Hobbes, Locke envisions a state of nature, but this state is more benign in that individuals are conscientious of their actions towards others. In Locke’s theory the role of property becomes paramount. According to Locke, all own property by virtue of their labor. But what Locke wants to emphasize is that the institution of property existed long before any kind of political state came into being. Property ownership gives individuals inviolable rights and freedom from state interference. Government in Locke’s ideal is minimal. The state exists to ensure that there are systematic rules governing the transference of property and not to redistribute wealth or maintain public welfare. Locke realized that the idea of everyone consenting to be ruled by governments was problematic. He agrees that the consent of most people is merely tacit – citizens are deemed to have agreed to obey the state because they do not emigrate or because they benefit from what it provides. The Foundations of Government: Locke

Module 1C: Formation of the U.S. Government and the Constitution Objectives: Understand the underlying pre-revolutionary foundations of the United States Understand what the Articles of Confederation represented and why they failed Understand the development of the 1789 Constitution 4. Cover Articles I, II, III, IV, V, and VI of the U.S. Constitution

Objectives:

Understand the underlying pre-revolutionary foundations of the United States

Understand what the Articles of Confederation represented and why they failed

Understand the development of the 1789 Constitution

4. Cover Articles I, II, III, IV, V, and VI of the U.S. Constitution

Formation of the U.S. Government and the Constitution Tudor (16 th century Political Ideals) 1. Supremacy of state over church 2. Organic union of society and government 3. Harmonization of authority within government 4. The subordination of government to fundamental law 5. The intermingling of legal and political realms 6. The balance of powers between Crown and Parliament 7. The vitality of local governmental authorities 8. Reliance on the militia for defense

Formation of the U.S. Government and the Constitution Civic classes taught us that the post-colonial government was a essentially an experiment without precedent. However, in reality, the post-colonial government that would form the United States was already well institutionalized. The Articles of Confederation and the 1789 Constitution were essentially modifications to a preexisting “Tudor” political system. All of the English colonies had legislative bodies, called by various names, in which representative officials were elected. Suffrage was limited by property qualifications, but most colonists were not landless peasants. The literacy rate of the English colonists was fairly high and the press was highly developed and accessible. Thus, most colonists were reasonably informed. Note that the success of the ratification of the 1789 Constitution was accomplished largely through the dissemination of political pamphlets. Samuel Huntington (1968) makes the argument that the U.S. governmental system is an anomaly; hence, its odd position in comparison with European democracies today. Huntington argues that the U.S. government was essentially modeled on the Tudor ideals of 16 th century Europe. English colonists carried 16 th century ideals of government beginning with their arrival in the 1630s. From c.a.1630 to c.a. 1754, the English interfered relatively benignly in their American colonies. Thus, the colonists preserved a system that was essentially medieval.

Huntington argues that the colonial era government was essentially medieval: reflecting the Tudor institutions of 16 th century England. This was the political system of England and some of the continental European countries prior to the development of the nation-state (1648) and the concept of sovereignty. The Tudor political system did not have a locus of sovereignty; instead, authority was essentially divided among different political institutions: parliament, monarch, common law, courts, custom, church and people (Huntington 1968, 100). “Society and government, Crown and people, existed in a harmony in a “single body politic”(100). Political modernization in the West begins in the 17 th century in England with the centralization of authority and the location of sovereignty within the nation-state. Natural law, manifested in English common law, was deemed to exist as a discoverable, external authority whose purpose was to impose restraint on human action. “Law is the true sovereign, and they are not under the necessity of considering whether King or Lords, or Commons or all three together are the ultimate authority in the state” (Figgis 1922, 230). In continental Europe, the “divine right of kings” established sovereignty in the monarch. In England, sovereignty was established in the Parliament through Parliament’s victory over the Crown in the English Civil Wars of the 17 th century. Formation of the U.S. Government and the Constitution Tudor Political Ideals

Huntington argues that the colonial era government was essentially medieval: reflecting the Tudor institutions of 16 th century England. This was the political system of England and some of the continental European countries prior to the development of the nation-state (1648) and the concept of sovereignty. The Tudor political system did not have a locus of sovereignty; instead, authority was essentially divided among different political institutions: parliament, monarch, common law, courts, custom, church and people (Huntington 1968, 100). “Society and government, Crown and people, existed in a harmony in a “single body politic”(100). Political modernization in the West begins in the 17 th century in England with the centralization of authority and the location of sovereignty within the nation-state. Natural law, manifested in English common law, was deemed to exist as a discoverable, external authority whose purpose was to impose restraint on human action. “Law is the true sovereign, and they are not under the necessity of considering whether King or Lords, or Commons or all three together are the ultimate authority in the state” (Figgis 1922, 230). In continental Europe, the “divine right of kings” established sovereignty in the monarch. In England, sovereignty was established in the Parliament through Parliament’s victory over the Crown in the English Civil Wars of the 17 th century.

Formation of the U.S. Government and the Constitution The Constitution codifies colonial political institutions that were based on Tudor ideals of government. For example, 16 th century English parliamentarians were representatives of their local constituencies making the Parliament a plural institution. The monarch embodied the whole of the country, but was not the locus of authority. The English Civil Wars effectively ended the affective representative functions of the monarch. Parliamentarians became representatives of the country rather than their constituencies. These changes never occurred in the United States; the Constitution has not been amended in order to have a sort of “congressional sovereignty.” The President, as explicitly stated in the Jackson and T. Roosevelt administrations, represents the nation as a whole. In the English Parliamentary system, the loyalty of MPs belong to the party; whereas, in the U.S. the loyalty of Congresspersons (Senators and Representatives) is to their constituencies and special interests. Tudor ideals are also found in the sharing of powers (functions) between U.S. political institutions. The idea of separation of powers in U.S. political institutions is a misnomer. The institutions are differentiated but their functions are definitely shared (See Neustadt 1960, 33). Thus, the three institutions of U.S. government – Congress, the President, and the Judiciary - have both legislative and judicial-legal functions. For example, the Congress has both impeachment and trial and lawmaking functions. Likewise, the use of judicial review by U.S. courts is essentially a lawmaking rather than a purely interpretative function.

The Constitution codifies colonial political institutions that were based on Tudor ideals of government. For example, 16 th century English parliamentarians were representatives of their local constituencies making the Parliament a plural institution. The monarch embodied the whole of the country, but was not the locus of authority. The English Civil Wars effectively ended the affective representative functions of the monarch. Parliamentarians became representatives of the country rather than their constituencies. These changes never occurred in the United States; the Constitution has not been amended in order to have a sort of “congressional sovereignty.” The President, as explicitly stated in the Jackson and T. Roosevelt administrations, represents the nation as a whole. In the English Parliamentary system, the loyalty of MPs belong to the party; whereas, in the U.S. the loyalty of Congresspersons (Senators and Representatives) is to their constituencies and special interests. Tudor ideals are also found in the sharing of powers (functions) between U.S. political institutions. The idea of separation of powers in U.S. political institutions is a misnomer. The institutions are differentiated but their functions are definitely shared (See Neustadt 1960, 33). Thus, the three institutions of U.S. government – Congress, the President, and the Judiciary - have both legislative and judicial-legal functions. For example, the Congress has both impeachment and trial and lawmaking functions. Likewise, the use of judicial review by U.S. courts is essentially a lawmaking rather than a purely interpretative function.

Huntington’s most significant argument, made in Political Order in Changing Societies (1968), is that political modernization, electoral democracy, creates political instability. Essentially, countries that do not have institutionalized democratic institutions will experience political instability as a result of an increase in political participation. Huntington argues that “America was the first to achieve widespread political participation but the last to modernize their political structures” (122). “Why did this early and rapid expansion of political participation fail to breed violence and instability in the United States?” (128). The diversity of political institutions and the sharing of functions among political institutions, at both the state and federal levels, provided multiple avenues for political participation. “In Europe the expansion of participation was linked to the centralization of power” (129). “[T]he democratic movement had to be unitary and centralizing, because it had to destroy before it could construct” (Palmer 1959, 350). Hence, the occurrence of “social revolutions” in a country like France (1789). The extension of Huntington’s argument to contemporary history is that non-western countries cannot have both political modernization and democratic pluralism. The centralization of authority, accumulation and concentration of power, not its dispersion, manifested in Leninist, one party systems is what is needed in non-western countries. And, this indeed was the pattern for most non-western countries from 1945 to 2000. Formation of the U.S. Government and the Constitution

Huntington’s most significant argument, made in Political Order in Changing Societies (1968), is that political modernization, electoral democracy, creates political instability. Essentially, countries that do not have institutionalized democratic institutions will experience political instability as a result of an increase in political participation. Huntington argues that “America was the first to achieve widespread political participation but the last to modernize their political structures” (122). “Why did this early and rapid expansion of political participation fail to breed violence and instability in the United States?” (128). The diversity of political institutions and the sharing of functions among political institutions, at both the state and federal levels, provided multiple avenues for political participation. “In Europe the expansion of participation was linked to the centralization of power” (129). “[T]he democratic movement had to be unitary and centralizing, because it had to destroy before it could construct” (Palmer 1959, 350). Hence, the occurrence of “social revolutions” in a country like France (1789). The extension of Huntington’s argument to contemporary history is that non-western countries cannot have both political modernization and democratic pluralism. The centralization of authority, accumulation and concentration of power, not its dispersion, manifested in Leninist, one party systems is what is needed in non-western countries. And, this indeed was the pattern for most non-western countries from 1945 to 2000.

Formation of the U.S. Government and the Constitution Colonial leaders constructed a contract called the Articles of Confederation (hereafter referred to as The Articles) during the Revolution. The Articles were based on the idea of a confederacy of states with a weak central government. The federal or central government had virtually no power, especially lacking was a means to effectively collect revenue by taxation. Instead, contributions had to be essentially solicited from the states. Without taxation the central government, after the Revolution, could not pay back its debts to other countries nor could it support a navy, which was necessary to protect trade. A standing army was considered pernicious. The newly formed United States suffered a revolt, Shay’s Rebellion (1786-87), from former soldiers and farmers angry over Massachusett’s failure to relieve crushing debt and hyperinflation caused largely by the printing of worthless paper money. In 1787 representatives gathered to discuss the possibility of modifying The Articles in order to increase the federal government’s commerce powers. In 1789 they met in Philadelphia to discuss the modification. However, by the end of the summer, they had decided to construct a Constitution based on a substantially stronger central government. Agreeing on the necessity of a stronger central government was difficult, but ratification by the states would be even more difficult. In fact, some states did not ratify the Constitution for decades. The ultimate question of power between the states and the central government (pluralism vs. political modernization) would be settled by bloodshed during the American Civil War of 1861-1864. [Read The Federalist Papers #15, #21, #22, #23 for Federalist arguments concerning the failure of The Articles ]

Formation of the U.S. Government and the Constitution: The Articles of Confederation Establishes the name of the confederation as the United States of America. Asserts the precedence of the separate states over the confederation government, i.e. "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated." Allocates one vote in the Congress of the Confederation (United States in Congress Assembled) to each state, which was entitled to a delegation of between two and seven members. Members of Congress were appointed by state legislatures; individuals could not serve more than three out of any six years. Expenditures by the United States will be paid by funds raised by state legislatures, and apportioned to the states based on the real property values of each. (The federal government lacked any power of taxation.) Defines the powers of the central government: to declare war, to set weights and measures (including coins), and for Congress to serve as a final court for disputes between states.

Formation of the U.S. Government and the Constitution The Constitution was opposed by both the public and most states. Anti-Federalists opposed the Constitution on various grounds that it promulgated an inevitable monarchy via the presidency and that it violated individual and states’ rights by centralization of authority. The Federalists, supported the Constitution largely on the grounds that it would provide a stronger central government capable of promoting economic modernization (international trade) via legislative control of interstate commerce. The Federalist Papers , written by James Madison, John Jay, and Alexander Hamilton, is a collection of 85 essays arguing the need for the Constitution. The Federalist Papers remains the primary source for the interpretation of the Constitution, having been cited in 289 Supreme Court opinions. According to historian Richard Morris they are an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer" (1987, 309). James Madison (1821), on the other hand, stated The Federalist Papers should not be held as a direct expression of the ideas of the Founders and that the “debates and incidental decisions of the Convention should not be viewed as having any authoritative character.” Some of the most cited essays are Federalist # 10, #51, #67, and #78. Federalist #10 outlines the problems of democracy in a large republic. Federalist #51 makes the argument for separation of functions. Federalist #67 provides support for a presidency. Federalist #78 makes argument for judicial review.

Formation of the U.S. Government and the Constitution: Federalist #51 Separation of Powers (Functions): Structural Checks and Balances Federalist #51 delineates how the “separation of powers” (functions) can make liberty possible. The political institutions, Congress, Executive, and Judiciary, should have autonomy in the appointment of their officials. The ideal would be that the people elect all political officials. However, the judiciary is not well suited for elections given that the people are not well informed of the qualifications of potential judges. Judges also need to be free of political pressure, hence, their lifetime tenure. There is a natural tendency for power to concentrate in a political institution via the ambitions of leaders within it. Madison thought the legislature was most prone to this, hence, the bicameral division. We may not like to admit that men abuse power, but the very need for government itself proves they do “ [I]f men were angels, no government would be necessary." Unfortunately, all men are imperfect, the rulers and the ruled. Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. The dependence of the government on the will of the people is undoubtedly the best control, but experience teaches that other controls are necessary.” Ironically, Baron Montesquieu completely misunderstood the English Parliamentary system. As stated by Lehman (1992, 58), “The great strength of the British system lay in the centralizing of all three functions , as Hobbes had admonished, under one supreme authority where “the supreme determining power is all points the same.”

The underlying philosophical idea in Federalist #51 is that both institutional and sociological plurality can provide a kind of “checks and balances” against concentration of power within one institution or abuse by the majority. Institutional plurality is found in the multiplicity of electoral offices at different levels of government. And, sociological plurality is found in the multiplicity of interests. “While all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” Justice Brandeis’ dissenting opinion in Myer v. U.S . (1920) states, “The doctrine of the separation of powers was adopted by the Convention of 1789 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of inevitable friction incident to the distribution of government powers among the three departments, save the people from autocracy.” Federalist #51, like Federalist #10 , reflects Madison’s fears of “tyranny of the majority”: that a political or popular majority would by nature abuse political minorities. Madison, also notes that “larger” societies would support the Republican form of government due to an inherent plurality of interests. (See the chart “Checks and Balances”, p. 29 in Wilson.) Ironically, Madison, along with Jefferson, is a founding father of party politics in the U.S. Madison and Jefferson formed the Democratic-Republican Party in the early 1790s in order to counter the Federalists, whom were led by George Washington and Alexander Hamilton. Formation of the U.S. Government and the Constitution: Federalist #51 Separation of Powers (Functions): Structural Checks and Balances

The underlying philosophical idea in Federalist #51 is that both institutional and sociological plurality can provide a kind of “checks and balances” against concentration of power within one institution or abuse by the majority. Institutional plurality is found in the multiplicity of electoral offices at different levels of government. And, sociological plurality is found in the multiplicity of interests. “While all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” Justice Brandeis’ dissenting opinion in Myer v. U.S . (1920) states, “The doctrine of the separation of powers was adopted by the Convention of 1789 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of inevitable friction incident to the distribution of government powers among the three departments, save the people from autocracy.”

Federalist #51, like Federalist #10 , reflects Madison’s fears of “tyranny of the majority”: that a political or popular majority would by nature abuse political minorities. Madison, also notes that “larger” societies would support the Republican form of government due to an inherent plurality of interests. (See the chart “Checks and Balances”, p. 29 in Wilson.)

Ironically, Madison, along with Jefferson, is a founding father of party politics in the U.S. Madison and Jefferson formed the Democratic-Republican Party in the early 1790s in order to counter the Federalists, whom were led by George Washington and Alexander Hamilton.

Formation of the U.S. Government and the Constitution: Article I - Legislature The U.S. Legislature, Congress, was not meant to emulate the English Parliament. Parliaments are party based; whereas, a Congress is constituent based. Sovereignty, concentration of authority, was not to be based in one institution; instead, it was to be diffused and decentralized to the people via the House and to the states via the Senate. The Senate provides equal representation of states. Individual legislators in a congressional system are essentially more independent than members of Parliament (MPs). This begins with the electoral process. In a parliamentary system, a candidate must persuade his political party to put her on a ballot list. Wilson (2008, 118) states, “In the election voters in the district choose not between two or three personalities running for office, but between two or three national parties.” A “government” in a parliamentary system consists of the Prime minister and her cabinet. The majority party selects the Prime Minister and cabinet. The Prime minister remains in office until removed by a “vote of no confidence” by her party. MPs have little connection to their constituency and serve primarily to debate national issues. “The principle work of a congress is representation and action, most of which takes place in committee” (119). Ironically, action is not a characteristic of the U.S. Congress as the need to please interests and constituents for funds and votes often creates indecisiveness and delay.

The powers provided in Article I, section 8 are the enumerated powers of Congress. These enumerated powers are quite limited in number and scope if applied literally. However, the Supreme Court, beginning with the case of McCulloch v. Maryland (1819), interpreted the existence of implied powers. The Supreme Court’s decision in McCulloch was that the formation of a central bank was constitutional as an implied power derived from the enumerated power of Congress to regulate interstate commerce. Over time, the Commerce Clause of section 8, would become the most significant clause in interpreting implied congressional powers. From 1890 to 1937, called the Lochner Era , a conservative Court consistently upheld individual “contract” rights, under the Due Process Clause of the Fifth Amendment, contra both state and federal regulation of labor. During the Lochner Era , the Court refused to expand the use of the Commerce Clause to allow Congress an implied power to regulate labor. However, after World War II, the Court interpreted an expansive use of the Commerce Clause for implied powers to mitigate racial discrimination during the Civil Rights movement of the 1960s. In Katzenbach v McClung (1964) and Heart of Atlanta Motel, Inc. v. U.S. (1964), the Court found that the 1964 Civil Rights Act’s prohibition against discrimination in places of public accommodation was constitutional as an implied power of Congressional regulation of interstate commerce. But, in the 1990s, a conservative Court returned to limited interpretation of the reach of the Commerce Clause. In U.S. v. Lopez (1995), the Court found that a federal law prohibiting possession of handguns within a school zone was unconstitutional. Similarly, in U.S. v. Morrison (2000), the Court found the Violence Against Women Act to be unconstitutional because violence against women could not be shown to have a substantial enough effect on interstate commerce. Formation of the U.S. Government and the Constitution

The powers provided in Article I, section 8 are the enumerated powers of Congress. These enumerated powers are quite limited in number and scope if applied literally. However, the Supreme Court, beginning with the case of McCulloch v. Maryland (1819), interpreted the existence of implied powers. The Supreme Court’s decision in McCulloch was that the formation of a central bank was constitutional as an implied power derived from the enumerated power of Congress to regulate interstate commerce. Over time, the Commerce Clause of section 8, would become the most significant clause in interpreting implied congressional powers. From 1890 to 1937, called the Lochner Era , a conservative Court consistently upheld individual “contract” rights, under the Due Process Clause of the Fifth Amendment, contra both state and federal regulation of labor. During the Lochner Era , the Court refused to expand the use of the Commerce Clause to allow Congress an implied power to regulate labor. However, after World War II, the Court interpreted an expansive use of the Commerce Clause for implied powers to mitigate racial discrimination during the Civil Rights movement of the 1960s. In Katzenbach v McClung (1964) and Heart of Atlanta Motel, Inc. v. U.S. (1964), the Court found that the 1964 Civil Rights Act’s prohibition against discrimination in places of public accommodation was constitutional as an implied power of Congressional regulation of interstate commerce. But, in the 1990s, a conservative Court returned to limited interpretation of the reach of the Commerce Clause. In U.S. v. Lopez (1995), the Court found that a federal law prohibiting possession of handguns within a school zone was unconstitutional. Similarly, in U.S. v. Morrison (2000), the Court found the Violence Against Women Act to be unconstitutional because violence against women could not be shown to have a substantial enough effect on interstate commerce.

Section 2: House Requirements 1. 25 years of age, 7 years citizenship 3. Two year terms 4. Apportionment by population 5. Impeachment Section 3: Senate Requirements 1. 30 years of age, 9 years citizenship 2. Six year terms 3. Two senators from each state 4. Vice President is President of the Senate 5. Impeachment trial conducted by Senate Section 8: Enumerated Powers 1. Taxation 2. Interstate Commerce 3. Immigration 4. Bankruptcy 5. Postal Service 6. Print Money 7. Tribunals 8. Declare War 9. Navy and Army 10. “Necessary and Proper” Clause Section 7: Bills and Resolutions 1. Revenue Bills originate in House 2. Bills must pass House and Senate Section 9: Restrictions 1. Writ of Habeas Corpus 2. No Bill of Attainder or Ex Post Facto Laws 3. No direct taxation 4. No export taxes 5. Prohibition of Titling Section 10: Restrictions on State Powers 1. States cannot make treaties and declare wars, etc. Article I: Congressional Requirements and Powers

Section 2: House Requirements

1. 25 years of age, 7 years citizenship

3. Two year terms

4. Apportionment by population

5. Impeachment

Section 3: Senate Requirements

1. 30 years of age, 9 years citizenship

2. Six year terms

3. Two senators from each state

4. Vice President is President of the Senate

5. Impeachment trial conducted by Senate

Section 8: Enumerated Powers

1. Taxation

2. Interstate Commerce

3. Immigration

4. Bankruptcy

5. Postal Service

6. Print Money

7. Tribunals

8. Declare War

9. Navy and Army

10. “Necessary and Proper” Clause

Section 7: Bills and Resolutions

1. Revenue Bills originate in House

2. Bills must pass House and Senate

Section 9: Restrictions

1. Writ of Habeas Corpus

2. No Bill of Attainder or Ex Post Facto Laws

3. No direct taxation

4. No export taxes

5. Prohibition of Titling

Section 10: Restrictions on State Powers

1. States cannot make treaties and declare wars, etc.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;  To borrow Money on the credit of the United States;  To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;  To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;  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;  To establish Post Offices and post Roads;  To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;    Enumerated Powers Granted to Congress: Article I, Section. 8. 

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 

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; 

To establish Post Offices and post Roads; 

To define and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations; 

 

Enumerated Powers Granted to Congress Article I, Section. 8.  To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court;  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;  To raise and support Armies, but no Appropriation of Money to that Use shall be for longer Term than two Years;  To provide and maintain a Navy;  To make Rules for the Government and Regulation of the land and naval Forces To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 

Enumerated Powers Granted to Congress

Article I, Section. 8. 

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and

Discoveries;

To constitute Tribunals inferior to the supreme Court; 

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning

Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that Use shall be for

longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and naval Forces

To provide for calling forth the Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions; 

Enumerated Powers Granted to Congress: Article I, Section. 8.  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;    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;--And  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. 

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; 

  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;--And 

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. 

Congress: Commerce Clause McCulloch v Maryland 17 U.S. 316 (1819) Facts: Congress established a central bank in 1816 much to the chagrin of the states who opposed the expansion of federal powers. Maryland attempted to tax a branch of the central bank. James McCulloch, the administrator of the bank refused to pay the tax. Question: What, if any, authority did Congress have to establish a central bank? 2. Can a state tax a federal entity in this manner? Findings: Congress has the authority to establish a central bank through its powers of interstate commerce. The power to establish a central bank is an implied power that stems from the power to regulate interstate commerce. No, a state cannot tax a federal entity. Chief Justice John Marshall stated, “The power to tax is the power to destroy.” See Gibbons v. Ogden (1824). In Gibbons the Court interpreted the use of broad, “plenary”, congressional powers under the Commerce Clause. The Commerce Clause implies the power to regulate interstate navigation on rivers even when the action occurs within the state. See also U.S. v. Gettysburg Electric Railway Co. (1896).

Question:

What, if any, authority did Congress have to establish a central bank?

2. Can a state tax a federal entity in this manner?

Congress: Commerce Clause Facts: In 1890, Congress passed the Sherman Anti-trust Act in order to control the formation of monopolies. It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal. The E.C. Knight Company was a monopoly controlling over 98 percent of the sugar-refining business in the United States. U.S. v. E.C. Knight Co. 156 U.S. 1 (1895) Question: Is the Sherman Anti-Trust Act a legitimate constitutional use of the commerce clause power? Finding: Yes. The Sherman Anti-Trust Act is constitutional, but the congressional power to regulate interstate commerce does not extend to manufacturing. The Knight case is a good example of the formal or “categorical” interpretation of the Commerce Clause. The categorical interpretation looks at whether the activity is “local or interstate”, “inside or outside the stream of commerce”, or whether the effects of the activity are “direct or indirect.” The opposite interpretive approach, called “empirical” interpretation, focuses on the magnitude of the effect on interstate commerce. See Houston E & W Railroad Co. v. U.S. ( Shreveport Case ) (1914). In Shreveport , the Court upheld a federal agency's regulation of freight rates on travel completely within Texas because freight transportation within Texas was found to be substantially affecting interstate commerce.

Congress: Commerce Clause Lochner v. New York 198 U.S. 45 (1905) Facts: The state of New York passed the Bakeshop Act of 1896 restricting the working hours of bakers to sixty hours a week or ten hours a day. Lochner was fined twice for overworking employees Question: Does the New York law violate the Fourteenth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The New York state regulation of working hours was unconstitutional: not a legitimate exercise of state police power, as it violated the right of contract, Due Process, within the Fourteenth Amendment.

Congress: Commerce Clause Adkins v. Children’s Hospital 261 U.S. 525 (1923) Facts: Congress passed a law providing a minimum wage for women employees working in he District of Columbia. Female employees of the Children’s Hospital earned less than the $16.50 per week requirement. The Hospital sued the D.C. Minimum Wage Board in order to prevent the enforcement of the law. The option for the Hospital would have been to fire workers. Question: Does the federal law violate the Fifth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The Congressional law providing a minimum wage for women in the District of Columbia was unconstitutional, The Court stated that the law would “dangerously extend the policy powers of the state.” And, that the law was vague, amounted to price fixing, and had discrepancies in terms of varying minimum wages for different types of jobs. This case is similar to Lochner in that the Court found that law violated the Fifth Amendment Substantive Due Process right to contract between employees and employers.

Congress: Commerce Clause Hammer v. Dagenhart 247 U.S. 251 (1918) Facts: Congress passed the 1916 Keating-Owen Act prohibiting the interstate commerce of goods produced by children under the age of fourteen or where children between the ages of fourteen or sixteen worked more than eight hours daily. There was much public sentiment to regulate child labor, but state regulations were not forthcoming as some states argued it would make them uncompetitive with states that allowed child labor. Ruben Dagenhart sued on behalf of his fourteen year old son arguing that such a Congressional law violated his son’s due process and contract rights under the Fifth Amendment. Question: Does the law violate the Commerce Clause and the Tenth and Fifth Amendments? Finding: Yes. Regulation of manufacturing, not interpreted as interstate commerce, is a right relegated to the states under the Tenth Amendment. Child labor did not meet a moral standard, an ”inherent evil”, as interpreted to exist in previous cases involving the regulation of prostitution ( Hoke v. U.S .) and lotteries, ( Champion v. Ames ). Justice Holmes dissented arguing that the Court had essentially upheld a problematic moral relativism, and all forms of manufacturing were clearly within the purview of Congress to regulate under the interstate commerce power. This case was overturned in U.S. v Darby Lumber (1941).

Congress: Implied Powers and the Commerce Clause Schechter Poultry Corp. v. U.S. 295 U.S. 495 (1935) Facts: During the Depression, Congress delegated powers to the President to approve “codes” written by private industrial organizations. These codes regulated wages, prices, and collective bargaining in various industries. The Schechter Poultry Corp. was indicted on 60 counts of violating the Live Poultry Code by noncompliance with wage regulations and by selling diseased chickens. Question: Does the approval of the codes by the President, allowed under the National Industrial Recovery Act (NIRA) constitute an unconstitutional delegation of power? Finding: Yes. The Court found this to be an unconstitutional delegation of power. The Schechter Poultry Company was not engaged in interstate commerce as they sold chicken only within the state of New York. The codes were regulating businesses like the Schechter’s that were operating in intrastate commerce only. The Court held that Section 3 of NIRA was "without precedent" and violated the Constitution. The law did not establish rules or standards to evaluate industrial activity. In other words, it did not make codes, but simply empowered the President to do so. A unanimous Court found this to be an unconstitutional delegation of legislative authority. Schechter is referred to as the “Sick Chicken” case.

Congress: Commerce Clause NLRB v. Jones and Laughlin Steel Co. 301 U.S. 1 (1937) Facts: Jones and Laughlin Steel Co. fired workers who attempted to unionize. The National Labor Relations Board (NLRB), under the Wagner Act, ordered that the company rehire and provide backpay for the fired workers. However, the company refused in light of the Court’s previous decisions against President Roosevelt’s New Deal legislation. Question: Is the Wagner Act, which allows labor to be regulated under the interstate commerce power, constitutional? Finding: Yes. The Wagner Act is constructed narrowly enough to allow the regulation of labor under the interstate commerce clause. The Court found that labor had a direct effect, verses the indirect effect found in previous cases dealing with New Deal legislation, on interstate commerce. See also U.S. v Carolene Products Co . (1938). In Carolene , the Court upheld a 1923 law banning the interstate shipment of filled milk. However, it is the famous “footnote 4,” which developed the “strict scrutiny” and “rational basis” standards. Legislation affecting “discrete and insular minorities” is to be examined more closely than economic legislation. Government must provide a compelling interest and legislation can only be narrowly applied. Ironically, this strict scrutiny standard was first applied in Korematsu v. U.S . (1944).

Congress: Commerce Clause U.S. v. Darby 312 U.S. 100 (1941) Facts: The Darby Lumber Co. violated the 1938 Fair Labor Standards Act (FLSA) by paying below the minimum wage and working employees more than 60 hrs. weekly. An appellate court upheld the ruling set in the Dagenhart case: that this was essentially production and thus not subject to congressional control under the Commerce Clause. Question: Was the FLSA a legitimate exercise of congressional power to regulate interstate commerce? Finding: Yes. The FLSA is a legitimate exercise of congressional power under the Commerce Clause. The regulation of labor, when it involves interstate commerce, does not violate the Fifth and Tenth Amendments. The Court’s unanimous decision affirmed its right to “exercise to its utmost extent” the powers reserved to it under the Commerce Clause.

Congress: Commerce Clause During the 1930s, a recalcitrant Supreme Court consistently struck down legislation proposed by President Roosevelt. President Roosevelt’s initiatives for economic recovery during the Great Depression are called the “New Deal.” The Court’s conservative jurisprudence strongly favored individual “right of contract” finding that Congress had exceeded its powers under the Commerce Clause and that states had violated the Fourteenth Amendment. See Lochner v. New York (1905) and Hammer v. Dagenhart (1925). President Roosevelt and the Court literally came to blows culminating in a bill, proposed by President Roosevelt, called the Judiciary Reorganization Act or “Court Packing Law”. This law would have allowed the President to appoint a new justice for every justice over the age of seventy, which have resulted in an additional six justices being appointed. The appointment of Justices by President Roosevelt would have allowed him to control the Court mitigating the dogged resistance of the conservative, “Four Horsemen” wing of the Court and conservative Democrats who controlled the House. Justice Owen Roberts swung the vote in the 1937 case of West Coast Hotel v. Parrish , which involved the constitutionality of a Washington State minimum wage law. West Coast Hotel is called the “Stitch in Time that Saved Nine.” Shortly after the case, Justice Van Devanter resigned and the Court shifted in favor of President Roosevelt allowing several favorable interpretations of the Commerce Clause (See NLRB v. Jones & Laughlin Steel Co . 1937, Steward Machine Co. v. Davis 1937, and U.S. v. Darby 1941).

Congress: Commerce Clause – Time Line of New Deal Legislation 1935 Jan 7: Panama Refining Co. v. Ryan (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional 1935 May 6: Railroad Retirement Bd. v. Alton R. Co. (1935) Held, 5-4: Railroad Retirement Act unconstitutional 1935 May 27: Schechter Poultry Corp. v. United States (1935) Held, 9-0: National Industrial Recovery Act unconstitutional 1936 Jan 6: United States v. Butler (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional 1936 May 18: Carter v. Carter Coal Company (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional 1937 Feb 5: Conference Committee vote on West Coast Hotel 1937 Feb 5: Judiciary Reorganization Bill of 1937 ("JRB37") announced. 1937 Mar 29: West Coast Hotel Co. v. Parrish (1937) Held, 5-4: State of WA minimum wage law constitutional 1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp. (1937) Held, 5-4: NLRA constitutional 1937 May 24: Steward Machine Company v. Davis (1937) Held, 5-4: Social Security tax constitutional 1937 Jun 2: "Horseman“ Willis Van Devanter resigns, Sen. Hugo Black appointed 1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions. 1938 Jan 18: "Horseman“ George Sutherland resigns, Stanley Forman Reed appointed

Congress: Commerce Clause Facts: The 1964 Civil Rights Act banned discrimination in places of public accommodation. The Heart of Atlanta Motel refused to rent rooms to black patrons violating the Act. The owner of the motel filed a civil suit arguing that the Act exceeded the authority given to Congress to regulate interstate commerce. The motel owner also argued that the Act violated his Fifth due process right and forced him into a condition of involuntary servitude, violating his Thirteenth Amendment right, by not allowing him to choose his customers. Question: Did Congress exceed its interstate commerce power by regulating local incidents of commerce and by depriving owners of their right to choose customers? Heart of Atlanta Motel Inc. v. U.S. 379 U.S. 241 (1964) Finding: No. The Court upheld Title II of the Civil Rights Act as constitutional on the grounds that Congress could regulate local incidents of commerce that had a significant effect on interstate commerce. Having observed that 75 percent of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was located near two interstate highways, the Court found that the business clearly affected interstate commerce. The Court, therefore, upheld the permanent injunction issued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of all races. See also Katzenbach v. McClung (1964), concerning discrimination in restaurants.

Congress: Commerce Clause Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985) Facts: The Fair Labor Standards Act FLSA (1938) initially did not allow the federal government to regulate the wages and hours of employees working for state and local governments, The Court in 1976 in National League of Cities found that only “traditional government functions” could be regulated via the Commerce Clause. The San Antonio Metropolitan Transit Authority (SAMTA) then refused to pay its workers overtime pay. In 1979 The Labor Dept. decided that SAMTA was not a traditional government function and thus subject to the FSLA. SAMTA then filed suit arguing that public transit was a traditional government function. Question: Are state and local government functions beyond the power of Congress to regulate under the Commerce Clause? Finding: No. The Court rejected the theoretical underpinnings of the National League of Cities decision—that the Constitution's recognition of the sovereignty of the states necessarily implies limits on the power of the federal government to regulate employment. The Commerce Clause invalidates state regulations that interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. According to the majority, the Framers believed that state sovereignty could be maintained by the peculiar structure they adopted: a Senate in which each state was given equal representation, regardless of its population, an electoral college that gave the states the power to choose electors, and the indirect election of Senators by the legislature of each state prior to the adoption of the Seventeenth Amendment, which provided for popular election of Senators.

Congress: Commerce Clause Facts: Antonio Lopez, a student, carried a handgun and ammunition into a San Antonio High School. Lopez was initially charged under state law for a firearms violation, but was then charged under the 1990 Gun Free School Zones Act, a federal law. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the Act a legitimate exercise of congressional power under the Commerce Clause? Finding: No. The Court found that possession of firearms in school zones does not have a substantial connection to interstate commerce. This case reverses the precedent, set since the late 1930s, allowing extensive use of congressional power via the Commerce Clause. See also U.S. v. Morrison (2000) in which the Court held that the Violence Against Women Act exceeded congressional power under the Commerce Clause. The protection against violence against women is not economic. Lopez and Morrison uphold what is called the “Empirical” or “Substantial Effects” theory of interstate commerce as contrasted with the “Direct and Indirect” or “Local or National” theory. U.S. v. Lopez 514 U.S. 549 (1995) C. Brzonkala

Gonzalez v. Raich 545 U.S. 1 (2005) Facts: In 1996, California passed Proposition 215 (The Compassionate Use Act), legalizing the medical use of marijuana. Angel Raich used marijuana grown by Diane Monson, which was legal under the California law but illegal under the Controlled Substances Act (CSA). The DEA raided Monson’s home and destroyed the plants. Raich and Monson sued arguing that the enforcement of the CSA violated their rights under the Commerce Clause, the 5 th , 9 th , and 10 th Amendments. The Ninth Circuit Court ruled, following the precedents of Lopez (1995) and Morrison (2000) that the cultivation and use of marijuana within the state did not affect interstate commerce. Question: Is the enforcement of the CSA, under the Commerce Clause, to regulate the intrastate cultivation and medical use of marijuana an overstretch of congressional power? Finding: No. The Court distinguished their decision from Lopez and Morrison by stating that marijuana cultivation and use was within a class of activities that affected interstate commerce. The cultivation and sale of marijuana within a state always has an affect on the national market for marijuana. Justice Thomas dissented stating, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.” Congress: Commerce Clause

Congress: Enforcement Power Katzenbach v. Morgan 384 U.S. 641 (1966) Facts: Section 4e of the Voting Rights Act of 1965 provided that persons who had completed the sixth grade in Puerto Rican schools could not be denied the right to vote by way of literacy tests which required fluency in English. The district court ruled that Congress had exceeded its powers and violated the Tenth Amendment as voting regulations are governed by the states. Question: Can Congress enforce Section 4e of the Voting Rights Act through Section 5 of the Equal Protection Clause of the Fourteenth Amendment? Finding: Yes. Essentially, the Court used Section 5 of the Fourteenth Amendment like the Necessary and Proper Clause of Article I Section 8. “Section 5 of the Fourteenth Amendment is a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees. The test of McCulloch v. Maryland (1809) is to be applied to determine whether a congressional enactment is "appropriate legislation" under Section 5 of the Fourteenth Amendment” The Court came to a different conclusion in City of Boerne v. Flores (1997) when it ruled that Congress had exceeded its power in trying to enforce, through Section 5 of the Fourteenth Amendment, the 1993 Religious Freedom Restoration Act (RFRA).

Congress: Regulatory Taxation Bailey v. Drexel Furniture Corp . 259 U.S. 20 (1924 ) Facts: After the Court’s decision in Hammer v. Dagenhart (1918), Congress passed the Child Labor Tax Law, which imposed a federal tax on employers employing children under the age of fourteen. Drexel Co. was assessed a tax, at about ten percent of net profits, for employment of children in 1919. Question: Is this a legitimate exercise of congressional taxation power under Article I, section 8 of the Constitution? Finding: No. The Court’s interpretation is essentially the same as Dagenhart only this time applied to federal taxation. “The analogy of the Dagenhart Case is clear.. When Congress threatened to stop interstate commerce in ordinary and necessary commodities, unobjectionable as subjects of transportation, and to deny the same to the people of a state in order to coerce them into compliance with Congress' regulation of state concerns, the court said this was not in fact regulation of interstate commerce, but rather that of state concerns and was invalid. So here the so-called tax is a penalty to coerce a state to act as Congress wishes them to act in respect of a matter completely the business of the state government under the federal Constitution.... ” The Court reversed its decision on regulatory taxes in 1937 in Steward Machine .

Congress: Spending Power South Dakota v. Dole 438 U.S. 203 (1987 ) Facts: South Dakota allowed persons nineteen and over the right to purchase alcohol not exceeding 3.2 percent. In 1984, Congress enacted 23 U.S.C.158 allowing the Secretary of Transportation to withhold federal highway funds from states in violation. South Dakota was denied five percent of federal highway funds for violating the law. The State of South Dakota then sued the Secretary of Transportation Elizabeth Dole. Question: Does the law exceed the spending powers of Congress under Article I, section 2 and the Twenty First Amendment? Finding: No. “In United States v. Butler (1936) and Steward Machine Co. v. Davis (1937), the Court had addressed issues relating to the spending powers of Congress. Through such cases, it had developed a four-part test t

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