Foundations of Law in America from Pacific Perspectives

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FOUNDATIONS OF LAW IN AMERICA

FROM PACIFIC PERSPECTIVES

Kevin O. George

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Foundations of Law in America - from Pacific Perspectives Introduction The U.S. Constitution dominates both U.S. legal heritage and everyday life. The American governmental structure is complex, with power shared between the federal and 50 state governments, and among the judicial, legislative and executive branches of government. While the Constitution is the foundation of the U.S. legal system the common law tradition is fundamental to American law even though it has been superseded in many areas by a myriad of statutory and regulatory authority that now guides judicial decision making. This course book is designed to serve as the primary resource for Foundations of American Law from Pacific Perspective, a course of study offered first in 2009 at the University of the South Pacific School of Law. The course and this book introduce USP Law students to the basic concepts of the law of the United States of America, provide an overview of U.S. legal processes and institutions and illustrate that the law of the United States is a complex integration of sometimes interacting constitutional, statutory and common law. The course book is digitally “self-contained” with links to ninety-three judicial opinions and sixty-three other constitutional, statutory and analytical documents. Part I of this course book will prove an understanding of the U.S. Constitution and other sources of U.S. Law, the historical influence of the common law and its relevancy today, and an overview of the U.S. Judicial System. The division of powers is basic to the understanding of law in the United States. In Part II the division of powers is illustrated through court cases and other materials concerning judicial review of constitutional matters, executive powers, legislative control over the executive powers and the sometimes unclear boundaries that cause tension among the branches of government. Part III visits the protection of human and civil rights under U.S. Law. In particular we will examine issues involving substantive and procedural due process, equal protection of the laws and fundamental freedoms under the U.S. Constitution. Part IV will provide the student with an understanding of the process of litigation in the federal courts with particular attention given to the jurisdiction of federal courts in respect to subject matter and persons. Distinctions will be shown between the jurisdiction of federal and state courts. The Federal Rules of Civil Procedure will be explored with students being asked to compare and contrast the process of litigation in the U.S. with their home countries. The course will conclude in Part V with an examination of the relevancy of American law in the Pacific providing an overview of the theoretical and practical application of American Law. The weekly seminars topics provide an opportunity for students to actively participate in discussions on aspects of American law and to draw comparisons to relevant legal, social and cultural factors in their own country. Kevin George, L.LM., J.D. Washington, D.C.

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Click on Hyperlink to Go to Topic

Part 1 - America Law - Sources and Nature

Topic 1 The Constitution of the United States as the Foundation

A) Historical Factors Influencing the Development of the Constitution

i) Political and Economic

ii) States Rights

iii) Perception of Common Law Excesses

iv) Articles of Confederation

B) Key Aspects of the U.S. Constitution

i) Federal System

ii) Separation of Powers

iii) Understanding the Federal Court System

iv) Powers of the States

C) Influence of Judiciary on Political Systems and Discourse

i) Examination of Key “Constitutional” cases with significant “political” or “social” ramifications

Readings:

o U.S. Constitution and Bill of Rights,

o Outline of the U.S. Legal System, Bureau of International Information Programs, Dept. of StateU OF INTERNATIONAL INFORMATION PROGRAMS

STATE

Seminar 1 - Comparative Analysis of Constitutions of the U.S. to a Pacific Island Country (student’s country) in terms of Structure of Governments and the Judiciary

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Topic 2 The Role and Authority of the Branches of Federal Government and

States

A) A Closer Look at the Constitutional Authority for the Branches of Government

i) The President

ii) Congress

iii) States

B) The American Judiciary and Judicial Systems i) Structure and Jurisdiction of the Federal and State Courts

(1) Subject matter jurisdiction

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ii) Selection of Judges (1) Republican Party of Minnesota v. White

(a) Contrast and Comparison - the Federal and State Judicial Systems iii) Law Applied in Federal and State Courts

(1) Forum–Shopping Between Federal and State Courts (2) Diversity Jurisdiction (3) What laws get applied in disputes between persons from two states?

Seminar Topic: Selection of Judges and Parallel Court Systems

Topic 3 The Traditional Common Law System Applied in the U.S.

A) State Common Law: Creation of "Products Liability Law" in New York

(1) Early Attitudes toward Products Liability

(a) Seixas v. Woods

(b) Thomas v. Winchester

(2) Manufacturer’s Liability to Third Parties for Negligence

(a) MacPherson v. Buick Motor Co.

(3) Gradual Change in Common Law (a) Greenberg v. Lorenz (b) Goldberg v. Kollsman Instrument Corp (c) The ‘‘Tort’’ of Products Liability

Codling v. Paglia

B) The Nature of U.S. Federal Common Law

i) Erie Railroad Co. V. Tompkins (1938) (overruling SWIFT) ii) East River Steamship Corp. v. Transamerica Delaval, Inc iii) {Develop here background material for reading on the “Nature of Federal

Common Law” and its limitations in respect to civil and criminal matters and the increasing tendency of federal courts to look to legislative intent for a remedy} .

Seminar Topic: Comparative Analysis of U.S. and Australia Federal Systems

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Topic 4 The American Mixture of Common Law and Code

A) The Federal Code and the Background of Common Law

i) The Common Law Foundation of U.S. Federal Law

Domino’s Pizza, Inc. v. McDonald (contractual relationships in common law and plaintiffs attempt to secure relief under civil rights statute through these relationships)

Preiser v. Rodriguez (illustrating the superceding of common law habeas corpus relief by habeas corpus statute)

Statutory Interpretation and Stare Decisis

o Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)

B) The Constitution and the Background of Common Law

(1) Tennessee v. Garner

(2) Collins v. City of Harker Heights

(3) The Hierarchy of Law in the U.S. – Federalism, the States and the Supremacy Clause

C) The Development of Codes and Departures From Common Law

(1) The range of American ‘‘Codes’’

(2) The Presence of Codes as Departures From Common Law

o U.S. Code, Code of Federal Regulations

Judiciary Act, Title 28

o Code of Federal Regulations

o Uniform Commercial Code as an example of trend to codification

Seminar Topic: Stare Decisis and Statutory Interpretation in the U.S. and Pacific

o Reading - Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology? The Georgetown Law Journal, Vol. 96, No. 6, 1863-1911 (2008)

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Part II. Constitutional Law and the Division of Governmental Power

Topic 5 Federal Judicial Power—The Supreme Court and the Constitution

A. Judicial Review of Constitutional Issues: The Constitution as

‘‘Law”

i) The Rationale of the Marbury Case

(1) Marbury v. Madison

ii) Constitutional Review and Federalism

(1) Martin v. Hunter’s Lessee

iii) Decline of Marbury’s Rationale and the Rise of Case Law

(1) Harper v. Virginia State Board of Elections

B) Limitations on Judicial Review: The Political Question Doctrine

i) ‘‘Structural’’ and ‘‘Organic’’ Constitutional Law

(a) Baker v. Carr

ii) Political Power and the Political Question Doctrine

(a) Reynolds v. Sims

C) Other Limitations on Judicial Review: The Eleventh Amendment

i) The Federal Judiciary and the Eleventh Amendment

(a) Cohens v. Virginia

Seminar Topic: Re-Arguing Marbury v. Madison in the Modern Era as Madison v. Marbury

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Topic 6 Federal Executive Power

A) Domestic Affairs

i) Constitutional Sources Of Presidential Power

(a) Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure case)

(b) United States v. Cox

(c) Prosecutorial Discretion – Can the Court’s Override the Executive’s Discretion to Prosecute?

ii) Presidential Privileges and Immunities

(a) Presidential Privilege and Impeachment as a Limit on Presidential Power

United States v. Nixon

(b) Immunity From Civil Damages Liability

Harlow v. Fitzgerald

Clinton v. Jones

B) The Executive Bureaucracy: Executive Lawmaking

i) Judicial Control of Lawmaking by the Exucutive

(a) Chevron U.S.A., Inc. v. Natural Resources Defense Council

(b) ‘‘Administrative Law’’

ii) Presidential Control of Executive Lawmaking?

(a) Morrison v. Olson

(b) Appointment and Removal of Executive–Branch Officers

C) Foreign Affairs

i) Sources of Presidential Power Over Foreign Affairs

(a) United States v. Curtiss-Wright Export Corp.

ii) Foreign Relations, Diplomacy, and the Treaty Power

(a) Dames & Moore v. Regan

Seminar Topic: Comparative Analysis of Domestic Powers of Heads of Government (U.S. and Pacific)

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Topic 7 Federal Legislative Power—Congressional Control of the Executive

A) Congressional Control of Policy and Its Limits

i) Legislative Authority and Control: Congress as Executive?

(1) Bowsher v. Synar

(2) Article I and Formalism in Interpretation

ii) Congressional Review of Executive Decisions: The Legislative Veto

(1) INS v. Chadha

(2) Formalism and Realism in Defining Congressional Intention and Retroactive Legislation

(a) Plaut v. Spendthrift Farm, Inc.

B) Congressional Privileges

i) Hutchinson v. Proxmire

Seminar Topic: Three Views on Separation of Powers Models

Topic 8 Federalism—Distribution of Legislative Powers

A) ‘‘Enumerated Powers’’ and the Supremacy Clause —Original Conceptions

i) McCulloch v. Maryland

B) The Commerce Power

i) The Commerce Clause and ‘‘Dual Sovereignty’’: Expansion and Limitation

(1) Gibbons v. Ogden

(2) How is Commerce “limited” by the Federal Government

ii) The Dual Sovereignty Doctrine

(1) Wickard v. Filburn

(2) United States v. Lopez

(3) Decline and Rise of Doctrine

iii) Federal Control of State Government in respect to Commerce

(1) Garcia v. San Antonio Metropolitan Transit Authority

(2) Federal Regulation of State Organs—and its Limits

C) Other Powers of the Federal Government through the Constitution

Seminar Topic: Comparative analysis and discussion about the relationship between the states and national legislatures in Australia and the United States

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Topic 9 State and Local Government Power in American Federalism

A. State Power to Regulate Commerce

i) Early Historical Foundations

ii) The Modern Focus: the Dormant Commerce Clause

(1) Impermissibly discriminatory

(2) Excessive burdens on interstate commerce

iii) Preemption by Congress

B. State and Local Government Power to Tax

C. Local Community Government and Law

i) Constitutional Authority for Local Governance

ii) Role of County and Municipal Governments

Seminar Topic: The Constitutional Authority for Local Government in the United States and Pacific Island Countries

PART III. CONSTITUTIONAL LAW AND THE PROTECTION OF HUMAN RIGHTS

Topic 10 Individual Rights and Liberties: Due Process of Law

A) Substantive Due Process and ‘‘Liberty’

i) The Post–Civil War Constitutional Amendments and Economic Rights

(1) Lochner v. New York

(2) Lochner and Its Definition of ‘‘Liberty’’

(3) Retreat to Text and the Incorporation Movement

ii) The Movement to Recognize ‘‘Personal Rights’’—Procreation?

(1) Griswold v. Connecticut

(2) Judicial Identification of ‘‘Fundamental’’ Rights

(3) Roe v. Wade

(4) Abortion Right and ‘‘Strict Scrutiny’’

iii) The Movement to Recognize ‘‘Personal Rights’’—Sex?

(1) Bowers v. Hardwick

(2) Lawrence v. Texas

Seminar Topic: Privacy as a Fundamental Right in the U.S. and the Pacific Islands

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Topic 11 Procedural Due Process and Fairness

A. Ex Post Factor Law

B. Procedural Due Process: Civil Cases

i. Board of Regents of State Colleges v. Roth

C. Application of Due Process in Mattes Involving Non-Citizens Accused of Terrorism

i. Boumediene v. Bush

Seminar Topic: Due Process as a Universal Right?

Topic 12 Individual Rights and Liberties: The Equal Protection Clause

A) A. Segregation and Racial Discrimination—High–Level Scrutiny Brown v. Board of Education

i) Social Background of the Brown Case

ii) ‘Intentional’’ Discrimination

B) Other Legislative Classifications—Low–Level (or Zero) Scrutiny

i) Williamson v. Lee Optical

ii) Differing Levels of Scrutiny

C) Gender/Sex Discrimination—Mid–Level Scrutiny

i) Craig v. Boren

ii) United States v. Virginia

iii) Judicial Standards and Values in Sex Discrimination Cases

D) Affirmative Action to Aid African–Americans and Women— ‘‘Reverse Discrimination’’

i) City of Richmond v. J.A. Croson Co.

ii) Decline of Affirmative Action After Croson

Seminar Topic: Equal Protection and Social Influences

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Topic 13 Individual Rights and Liberties: Freedom of Speech

A) Origins of Free Speech in the U.S.

B) The Basic Doctrine of Freedom of Expression

i) Marketplace of Ideas Theory

ii) Abrams v. United States (1919)

iii) New York Times v. Sullivan (1964)

iv) Brandenburg v. Ohio (1969)

(1) Clear and Present Danger Test

v) Four-Part Test for Time, Place & Manner Regulations

C) Freedom from Compelled Expression

i) U.S. Flag Pledges as an Example

(1) West Virginia Bd. of Educ. vs. Barnette, (1943)

(2) State v. Lundquist (Md., 1971)

(3) Maryland Statute on Pledge of Allegiance, MD Code Educ. 7-105 Display of flag; patriotic exercises

Seminar Topic: Differing Concepts of Freedom of Speech in America and Pacific Island Countries?

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PART IV. LITIGATION IN A FEDERAL SYSTEM

Topic 14. Jurisdiction of Federal and State Courts

A) Subject–Matter Jurisdiction

i) Constitutional and Statutory Bases of Federal Subject–Matter Jurisdiction

(a) State Courts

(b) Federal Courts

U.S. Constitution, Article III

Title 28, United States Code

(c) Rationale for Subject Matter Jurisdiction

ii) Subject–Matter Jurisdiction of Federal Trial Courts: Federal Questions (§ 1331)

(a) Louisville & Nashville Railroad v. Mottley

(b) Rationale for Federal Question Jurisdiction

iii) Subject–Matter Jurisdiction of Federal Trial Courts: Diversity of Citizenship (§ 1332)

(a) Baker v. Keck

(b) Diversity–of–Citizenship Jurisdiction

iv) Concurrent State–Court Jurisdiction and the Role of the U.S. Supreme Court

(a) Yellow Freight System v. Donnelly

(b) State Court Jurisdiction Over Federal and State Law

B) ‘‘Personal’’ Jurisdiction of State and Federal Courts

i) World–Wide Volkswagen Corp. v. Woodson

ii) Physical Presence and ‘‘Minimum Contacts’’

C) Jurisdictional IBssues in Transnational Litigation

i) Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County

ii) Bank of Hawaii v. Ataji L. Balos, et. Al., 701 F.Supp. 744, United States District Court, Hawaii (1988)

Seminar Topic: Advising a Pacific Island Nation on whether a U.S. Court has jurisdiction of it on a legal action brought against it U.S. District Court by a citizen of the United States.

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PART V. Extraterritorial Influence of American Law

Topic 15 American Law in the Pacific

A. Introduction B. The Historical Foundations of American Influence

1. The Case of American Samoa and Guam 2. Trust Territory of the Pacific Islands

i. Historic Foundations ii. The Relationship of the Pacific Islands and the U.S. under the TTPI

a) Governance b) Trust Territory Code c) Judiciary d) Transitions from the TTPI

C. The Compacts of Free Association - FSM, RMI and Palau

3. Nature of the Compact Relationship 4. Executive and legislative Functions 5. Influence of the U.S. on Judicial Systems and Sources of Law 6. Custom and Traditional Practices 7. U.S. Law as a Framework and Source – Reflecting Social Norms and Values? 8. Access to U.S. Courts

D. Overseas “Flag Territories” – Samoa, CNMI and Guam 9. Three Degrees of Limited Self-Governance 10. Nature of Government 11. Judiciary and Law

i. Judiciary

ii. Application of U.S. Constitution – Territorial Clause and Insular Cases

iii. Land and Equal Protection Clause

iv. Protection of Tradition of Custom

Seminar Topic: A political status and jurisprudence that promotes and protects the cultural and social norms, values and institutions of American Samoa

American Law - Sources and Nature

HISTORICAL INFLUENCES ON U.S. GOVERNMENT AND LAW

1 T O P I C

The Foundations of Law in America - Pacific Perspectives 1.2

Study Time 12 hours

Top ic Ou t l i ne 1. Introduction to Sources of “American” Law

2. Historical Factors Influencing the Development of the Constitution

3. Influence of Judiciary on Political Systems and Social Discourse

Lea rn ing Ou tcomes

At the conclusion of this Unit you will demonstrate an understanding of:

How the U.S. Constitution, government and legal system was influenced by key historical events and social, economic and political factors.

The general framework of the U.S. federated government and legal system.

The sources and nature of law in the United States and the relative hierarchy of law.

How compromises in the development of the constitution and in judicial reasoning continued the greatest human rights tragedy in U.S. history.

Read and post your comments and questions to the Moodle Discussion Group.

Check l i s t o f Ac t i v i t i es To complete this unit you must:

1. Contribute to the Moodle Discussion Group; 2. Study the readings below; 3. Complete the study tasks; and, 4. Answer the reflection questions at the end of the unit. 5. Provide a thorough response to the seminar topic/questions

Presc r i bed Read ing Declaration of Independence

U.S. Constitution and Bill of Rights

Hinds v. Brazealle, 3 Miss. 837, 2 How. 837 (Miss. 1838)

Dred Scott Case


Excerpt on the “The Federalist Papers” from the Outline of U.S. Government, Dept. of State, Chapter 2. (2000)

A l te rna t i ve Re ad in g

The Iroquois Constitution http://www.fordham.edu/halsall/mod/iroquois.html

The Federalist Papers, http://www.foundingfathers.info/federalistpapers/fedi.htm


I n t rodu c t i on

In this topic we will examine the sources of law in the United States, the basic framework of government and legal systems in the U.S. and legal system, and how the U.S. Constitution and the courts dealt with the early social and political issues of slavery.

Sources o f Law and F ramework o f Gove rnmen t

The primary sources of American law are:

1. The U.S. Constitution and the constitutions of the fifty states;

2. Statutory Law, including laws passed by Congress, state legislatures, and local governing bodies such as counties and cities;

3. Regulations created by administrative agencies (such as the U.S. Food and Drug Administration, Immigration Service, etc.); and,

4. Case law and common law doctrines

Secondary sources of law are books and articles that summarize and clarify the primary sources of law (such as legal encyclopaedias, treatises, and articles in law reviews).

The following paragraphs provide a snapshot of each of these sources of law in America and their relative hierarchy. Common Law The oldest form of law in the United States is the common law. The common law was developed in England and brought to the United States by English colonists. The common law is judge-made law; in the United States, it is law that has been developed by the judges of both England and the United States. We will review more in Topic 3 and 4 about how the common law has developed in America through the concepts of precedent and stare decisis. As elsewhere, the Common law is fluid, always changing with societal values and expectations. As one U.S. court stated, "The common law of the land is based upon the human experience in the increasing effort of enlightened people to ascertain what is right and just between men". For example, as we will read in Topic 3, in MacPherson v. BuickMotor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), a new common law was recognized in a purchaser against a manufacturer for injuries caused by latent defects in an article purchased at retail. Thus common law changes due to technological and social developments. Initially, the 13 original states all adopted the common law. Today, only one State, Louisiana, has not adopted the common law in some form; most states have


expressly adopted the common law either by statute or by constitutional authority, although many adopted only parts of the common law others have codified the common law. A common law provision is only effective if it has not been precluded by statute or is not in conflict with a Federal or a State constitution. Statutory Law The legislative branches of the U.S. federal and state governments are responsible for creation of law. The legislature possesses the authority to modify, abolish or adopt the common law, in whole or in part. During the 19th century, states began a major movement away from the common law and instead began codifying the law essentially giving many States a codified summary of the common law. Although the power of the legislative branch is significant, there are limits. The constitutions of the United States and of the many states contain limits on such state and federal authority. Most of these limits are found in the Bill of Rights, which we will examine in further detail in Topic 2. For example, the First Amendment to the U.S. Constitution prohibits government from punishing an individual for exercising choice of religion. The written laws of municipalities are ordinances. Ordinances are enacted by city councils and commonly regulate zoning, building, construction, and related matters. Many cities have criminal ordinances that mirror state statutes, only they apply to those acts that occur within the jurisdiction of the city. According to the hierarchy of law in the U.S., ordinances may not conflict with state or federal law. Any ordinance that is inconsistent with higher law may be invalidated by a court. States limit the power of cities to punish for ordinance violations, and most city court trials are to the bench, not to a jury. Administrative Law Administrative agencies are governmental units in the federal, state, and local governments of the United States that administer the affairs of the government. Although often lumped together, they are actually two types of agencies, administrative and regulatory with both being part of the Executive Branch of government. The two names reflect the purposes behind each type. Administrative agencies put into effect government programs. For example, in one State government the Department of Public Welfare may administer the distribution of public money to those deemed needy. In contrast, state medical licensing boards are regulatory, because their duty is to oversee and regulate the practice of medicine in the various states. Both regulatory and administrative agencies receive their powers from the legislative branch, but are part of the Executive Branch. Because legislatures do not possess the time or the expertise to write precise statutes, they often enact a very general statute which grants one or more administrative agencies the authority to make more precise laws. Just as legislative enactments are known as statutes (or codes), administrative laws are known as regulations.


Court Rules Just as administrative agencies need the authority to fill in the gaps of legislation, because statutes are not specific enough to satisfy all of an agency's needs, so do courts. The United States Congress and all of the state legislatures have enacted statutes establishing general rules of civil and criminal procedure. However, to fill in the gaps left by legislatures, courts adopt court rules which also govern civil and criminal processes. Although court rules deal with the procedural issues (such as service of process, limits on the length of briefs and memoranda, and timing of filing) rather than substantive issues, they are nevertheless important. Of course, court rules may not conflict with legislative mandates. If a rule does conflict with a statute, the statute is controlling. Most court rules are drafted under the direction of the highest court of the state and become effective either by vote of the court or after being presented to the state legislature for ratification. In the federal system, the rules are drafted by the Judicial Conference, under the direction of the Supreme Court, and then presented to Congress. If Congress fails to act to nullify the rules, they become law. Constitutional Law Constitutional law, particularly the United States Constitution and the Bill of Rights, has defined the U.S. government, legal system and the rights of citizens.. The United States Constitution is the foundation of American law, and no laws may be passed or enforced if they are in conflict with the Constitution. We will explore the Constitution in more detail in Topic 2.

Federa ted Government

The federated form of government established by the Constitution includes a distinct judicial branch at the national, state and local levels. What is the rationale for federalism? The Federalist Papers were written and published during the years 1787 and 1788 in several New York State newspapers to persuade New York voters to ratify the proposed constitution. In total, the Federalist Papers consist of 85 essays outlining how this new government would operate and why the proposed federal government was the best choice for the United States of America. All of the essays were signed "PUBLIUS" and the actual authors of some are under dispute, but the general consensus is that Alexander Hamilton wrote 52, James Madison wrote 28, and John Jay contributed the remaining five. All three were well-known statesmen of the time. The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution. You may go to http://www.foundingfathers.info/federalistpapers/fedi.htm to find the essays (optional reading).


Read chapter 2 on the “The Federalist Papers” from the Outline of U.S. Government, Dept. of State, (2000) to understand the basic reasoning behind federalism. In Topic 2, we will explore the relationship of the three branches of “federal” government and also their relationship to the states.

State and Local Government State and local governments generally mirror the three branches of the Federal government in terms of roles and a balancing of powers. Their constitutions or charters (in the case of local governments) are directed at producing representative democracy at the State and local levels. However, these laws may not be in conflict with the U.S. Constitution or federal law. The hierarchy of Federal government is illustrated below.


Federal Government

State Governments (50)

Local County or City Government

S T U D Y T A S K 1

Hierarchy of Government in the United States

Besides issues of jurisdiction there are important differences between the courts at the Federal, state and local level. One key difference is that the judges to Federal courts are appointed for life, while judges on many State and local courts may be elected. See diagram of U.S. Government (national) government.

Examine the constitution and structure of the U.S. government. Describe how the constitution and government of your country differs from the structure of the U.S. government and constitution.

His to r i ca l Fac to r s I n f l uenc ing t he Deve lopmen t o f t he Cons t i t u t i on and Amer i can Fede ra ted Gove rnmen t

An exploration of the legal system of America is incomplete without at least a basic understanding of the historical factors that influenced the social, political and economic development of the land that is now the United States. Even in American law schools these historical factors are often overlooked in the effort to train lawyers for the immediate challenges of the modern profession. The great source of American law is indeed the U.S. Constitution, but it is the product of centuries of history not limited by geography or culture. In can be said that not only did history shape the Constitution and the American legal system, but that it brought forward issues that Americans are still struggling to grasp today.


Indigenous Influences Prior to the colonization of the American continents by Europeans in the sixteenth century the Americas were populated by indigenous peoples, who are likely to have migrated from Europe through a land bridge across the Bering Sea. These peoples, the ancestors of today’s so called “American Indians” or “Native Americans” arrived in North America as early as 12,000 BC with complex social systems in place by 300 BC. By 1640 the British had solid colonies established in two areas along the eastern coast of the present day United States. In between were the Dutch, and a tiny Swedish community. To the vast largely unexplored west were the original Americans, then called Indians, but now called Native Americans. It is now thought that when the first Europeans settled in the 16th century in the Americas, as many people lived in North and South America as in Western Europe -- about 40 million. Estimates of the number of Native Americans living in what is now the United States at the onset of European colonization range from two to 18 million, with most historians tending toward the lower figure. What is certain is the devastating effect that European disease had on the indigenous population practically from the time of initial contact. Smallpox, in particular, ravaged whole communities and is thought to have been a much more direct cause of the precipitous decline in the Native American population than the numerous wars and skirmishes with European settlers. Native American customs and culture at the time were extraordinarily diverse, as could be expected, given the expanse of the land and the many different environments to which they had adapted. Most tribes, particularly in the wooded eastern region and the Midwest, combined aspects of hunting, gathering, and the cultivation of maize and other products for their food supplies. These societies were closely tied to the land and identification with nature was integral to religious beliefs. Their life was essentially clan-oriented and communal, but politically some grew into sophisticated units that had all the characteristics of a sovereign nation. Chief among these is the Iroquois Nation. The Iroquois, a confederation of five and then six Native American nations in the north-eastern United States formed a powerful confederation of sovereign nations held together by a constitution. The Iroquois Confederacy had many of the traits of a democracy with an emphasis on checks and balances on the powers of central government and protection for individual rights. The Iroquois Confederation arguably became at least one model of governance that the framers of the Constitution would turn to in designing a nation that was, in theory, a set of sovereign nations: the United States. It recognized a balance of powers, a role for a legislative body and a distinct role for women, who had the power to veto acts of war. It is said that two leading “founding fathers’ of the United States, Thomas Jefferson and Benjamin Franklin, extensively studied and respected the Iroquois system of governance. You may access the Iroquois Constitution at http://www.fordham.edu/halsall/mod/iroquois.html


European Influences The European colonization of the American continents began in the sixteenth century. Not all of the areas that ultimately were to form part of the United States of America were initially settled by the English. There were, for example, Spanish settlements in what is today the state of Florida, where the first permanent European settlement was established in St. Augustine. The Dutch settled New York, the French colonized the present day State of Louisiana and “owned” virtually all the territory West and North of the original thirteen English colonies. Each group brought its own culture and institutions.

The first Europeans came in the late fifteenth century to explore for gold, spices and other riches. A second, larger and three centuries long wave of migration from Europe to North America began in the early 17th century. These Europeans migrants became the population base for the thirteen English controlled colonies that eventually became the thirteen founding States of the United States. The reasons that European migrants came to America are directly related to the reasons why so many fought to liberate the American colonies from the rule of Great Britain. Some fled Europe to escape instability brought by over 30 wars in the 18th century. Others fled political and religious tyranny. Still others were driven by economic reasons and the opportunity apparent from the vast tracks of land in North America. Most European emigrants left their homelands to escape political oppression, to seek the freedom to practice their religion, or to find opportunities denied them at home. Between 1620 and 1635, economic difficulties swept England. Many people could not find work. Even skilled artisans could earn little more than a bare living. Poor crop yields added to the distress. In addition, the Commercial Revolution had created a burgeoning textile industry, which demanded an ever-increasing supply of wool to keep the looms running. Landlords enclosed

Colonial Heritage and Choice of Legal System As a result of colonial heritage, the laws of some of the states of the United States still contain elements that derive from the civil rather than the common law. The State of Louisiana in the southern United States is a prime example of a State that was greatly influenced by French culture during its colonial period. Louisiana shunned the common law for a “French style” code based system and adopted a relatively pure civil code when it became a State in 1812. While codification is now widespread the codes of other States are actually collections of common law rules mixed with ad hoc statutes that do not have the logical relationship of a pure civil code system. The course of political and economic development was to be such that, as far as law was concerned, the English tradition – as modified to take into account the conditions of the New World – ultimately achieved almost complete dominance.


farmlands and evicted the peasants in favor of sheep cultivation. Colonial expansion became an outlet for this displaced peasant population. Political considerations also influenced many people to migrate to America. In the 1630s, arbitrary rule by England's King Charles I gave impetus to the migration. The subsequent revolt and triumph of Charles' opponents under Oliver Cromwell in the 1640s led many of the “king's men" to acquire land in the American colony of Virginia. In the German speaking regions of Europe, the oppressive policies of various regimes, particularly with regard to religion, and the devastation caused by a long series of wars helped swell the movement to America in the late 17th and 18th centuries. Those who came to America from Europe tasted a degree of freedom from feudal and authoritarian regimes raising their expectations about broader independence. These rising expectations were certainly at odds with an England that was near the aegis of its power and not quite ready to cede authority. For the most part, the American colonists had come to the "New World" seeking political, religious and economic liberty. Consequently, when King George III and the British parliament began encroaching on these new-found freedoms, the colonists were greatly alarmed. There was no single act or event which led the colonists to “revolt” against their British King. Rather, there were a series of perceived abuses, micro-managing, lack of representation, over-taxation and other attempts to control the desire for more autonomy which, taken together, convinced the majority of colonists that revolution was their only acceptable course of action. Individuality, equality and philosophical foundations A third set of influences on the American Revolution and the formation of the United States is found in the philosophical and political thought of the 18th century. The colonists were perhaps the most likely of people to commence a revolution against a tyrannical government. Generally well-read, the colonists had "devoured" the writings of 17th Century English Civil War writers and their successors, such as Milton, Neville, Trenchard and Gordon. From these authors, many of the more educated of the colonists acquired a sense of moral indignation toward perceived political corruption. Montesquieu, one of the great French political philosophers of the Enlightenment, had a very important influence on the framers of the U.S. Constitution. He saw despotism, in particular, as a standing danger for any government and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law. His theory of the separation of powers had an enormous impact on liberal political theory, and on the framers of the constitution of the United States of America. who emphasized the need to have balanced forces pushing against each other to prevent tyranny. Montesquieu himself borrowed from the second century Greek historian, Polybius, who wrote about the importance of a government with checks and balances on power. The due process clause of the United States Constitution was also partly based on common law stretching back to the Magna Carta of 1215. In 1957 the American Bar Association acknowledged the debt American law and constitutionalism had to the Magna Carta by erecting a monument at Runnymede, England.


Development of U.S. Constitution The war of independence broke out in 1775 followed by the formal Declaration of Independence in 1776. The war was won by the Americans in 1783 in part due to the intervention of the French. After the war and prior to the adoption of its national Constitution in 1789, the United States was governed by the Articles of Confederation. Under the Articles, almost all functions of the national government were vested in a single chamber legislature called Congress. There was no separation of executive and legislative powers. The absence of a national judiciary was considered a major weakness of the Articles of Confederation. Consequently, the delegates gathered at the Constitutional Convention in Philadelphia in 1787 expressed widespread agreement that a national judiciary should be established. A good deal of disagreement arose, however, on the specific form that the judicial branch should take. As colonies, the states had developed independently and, even after the Revolutionary War, they remained distinct units not united by any central government. Bringing the states together in a federal system was a challenge to be sure with many newly independent Americans suspicious of a shared constitution or a strong central government. These fears and the desire of the “States” to retain sovereignty very much shaped the present day federated form of government in the United States. Competing with these factors was the need for some degree of collective security and a desire by the newly independent States to have a strong integrated commercial system that would support the economies of all the States. The controversy over the development of a federal constitution was very much fuelled by the question of how much independence would have to be given up to make the national government strong enough to achieve the ends it was being created to pursue. This controversy is still very much a part of the political discourse in America and is to a large degree part of the dogma of its two major political parties. In the end - the writers of the Constitution created a federal system with a national government strong enough to unify the states in their pursuit of common goals without completely robbing the states of their independence. If they had not done so, it is unlikely that the ratifying conventions in the several states would have approved the Constitution. Indeed, the inclusion of the federal principle in the Constitution was a critical factor in its ratification. Factors Influencing Development of Legal System The tension between the sovereignty of the States and the power of a central government influenced the nature of the present day legal system in the United States. The first proposal presented to the Constitutional Convention was the Virginia Plan, which would have set up both a Supreme Court and inferior federal courts. Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially disturbed by the idea of lower federal courts. They argued that the state courts could hear all cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to


protect national rights and provide uniform judgments throughout the country. The conflict between the states’ rights advocates and the nationalists was resolved by one of the many compromises that characterized the Constitutional Convention. The compromise is found in Article III of the Constitution, which begins, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” With the Declaration of Independence in 1776, the former colonies fully controlled the allocation of authority over the creation and adaptation of their public and private laws. Colonial history and the form taken by the struggle to obtain independence led to the new states breaking with English tradition by adopting written constitutions. These state constitutions constituted the ultimate source of state law; they formally allocated the authority to make and adapt law. The framers of the U.S. Constitution recognized the near sanctity of the various state constitutions by ensuring through Article VI, the “Supremacy Clause”, that these constitutions would remain the supreme law in each State unless a state constitution or law conflicted with the federal constitution. Slavery - Perversion of Human Rights by the Common Law and Constitution During the American colonial period, slavery was legal and practiced in all the commercial nations of Europe. The practice of trading in and using African slaves was introduced to the United States by the colonial powers, and when the American colonies received their common law from the United Kingdom, the legality of slavery was part of that law. By the time of the Constitutional Convention in 1787, slavery in the United States was a grim reality. In the census of 1790, there were slaves counted in nearly every state, with only Massachusetts and the "districts" of Vermont and Maine, being the only exceptions. In the entire country 3.8 million people were counted, 700,000 of them, or 18 percent, were slaves. In South Carolina, 43 percent of the population was slave. In Maryland 32 percent, and in North Carolina 26 percent. Virginia, with the largest slave population of almost 300,000, had 39 percent of its population made up of slaves. There was no great movement in America to abolish slavery in the period after the Declaration of Independence in 1776 and the signing of the U.S. Constitution in 1789. It appears that most of the “founding fathers” were opponents of slavery since the concept of enslaving men and women was philosophically at odds with the principle of equality of all men that was embedded in the Declaration of Independence. Historical evidence suggests that most thought it was a dying institution. Nonetheless it was an issue that the framers of the Constitution chose not to address “head on’ especially in the early days of a nation that was still very much uncertain about a strong central government that was viewed as “taking” what slave owners viewed as a property right. A compromise was adopted. In Article 1, Section 9, Congress is limited, expressly, from prohibiting the "importation" of slaves, before 1808. The slave trade was a bone of contention for many, with some who supported slavery abhorring the slave trade. The 1808 date, a compromise of 20 years, allowed the slave trade to continue, but placed a


date-certain on its survival. Congress eventually passed a law outlawing the slave trade, but not the ownership of slaves, that became effective on January 1, 1808. Slavery did not die out. At the turn of the 19th century the demand for cotton grew dramatically because of improved textile production. The rural southern part of the United States, ideal for the growing of cotton, suddenly needed large amounts of manual labour with slaves being seen as highly cost effective. Commercial need for slaves became dominant in the South, while many States in the North emancipated slaves and outlawed the ownership of slaves. The stage was set for two centuries of conflict in the United States including a civil war (1861-65) and the social battles over segregation and the rights of African-Americans in the 20th century. Two cases in your required reading illustrate how the common law inherited by the United States worked to support the repugnant practice of slavery, and how the courts justified slavery as a matter of property law rather than human rights. Hinds v. Brazealle, 3 Miss. 837, 2 How. 837 (Miss. 1838) In 1826, Elisha Brazealle, a white resident of Jefferson County, Mississippi, took “a negro woman” he enslaved and their son, John Monroe Brazealle, to Ohio to free, or manumit, them. After executing a deed of emancipation, he brought them back to Mississippi. At his death, he left a will devising his entire estate to John Monroe. Brazealle was survived by neither a wife nor other children. Collateral relatives, all white, challenged not only Brazealle’s testamentary gift of property to his son, but the emancipation itself, claiming John Monroe as part of the estate to which they were entitled as his legal heirs. The chancery court upheld the putative heirs’ challenge to the will and the Mississippi Supreme Court affirmed. But the court went beyond this and ordered John Monroe and his mother re-enslaved and distributed to their white relatives as part of Elisha’s estate. Fast forward twenty years to decision by the same State Supreme Court in the case of Shaw v. Brown, 35 Miss. 246 (1858). In 1850, James Brown, also a resident of Mississippi, took a “mulatto woman named Harriet” he enslaved and their four children, Francis, Jerome, Teresa, and Louisa, to Ohio to manumit them. After freeing them, he sent them on to Indiana where they lived as free men. At his death, he left a will instructing his executors to liquidate his estate (i.e., sell his plantation and remaining slaves), pay his debts, and deposit the surplus in the Bank of Louisiana for the benefit of his sons, who would remain in Indiana. Brown’s collateral heirs also challenged the emancipation and the testamentary gift of property to the former slave side of his family. In this case, the Mississippi Supreme Court overruled the chancery court and ordered the manumission and testamentary gifts. The court weighed heavily the fact that Mr. Brown expressed his intent to free his family from slavery in a State that permitted manumission.


S T U D Y T A S K 2

Dred Scott Case On March 6th, 1857, Chief Justice Roger B. Taney delivered the majority opinion of the U.S. Supreme Court in the Dred Scott case. Seven of the nine justices agreed that Dred Scott should remain a slave, but Taney did not stop there. He also ruled that as a slave, Dred Scott was not a citizen of the United States, and therefore had no right to bring suit in the federal courts on any matter. In addition, he declared that Scott had never been free, due to the fact that slaves were personal property; thus the so called Missouri Compromise of 1820 was unconstitutional, and the Federal Government had no right to prohibit slavery in the new territories. The court appeared to be sanctioning slavery under the terms of the Constitution itself, and saying that slavery could not be outlawed or restricted within the United States. The American public reacted very strongly to the Dred Scott Decision. Antislavery groups feared that slavery would spread unchecked. The new Republican Party, founded in 1854 to prohibit the spread of slavery, renewed their fight to gain control of the Congress and the courts. Their well-planned political campaign of 1860, coupled with divisive issues which split the Democratic Party, led to the election of Abraham Lincoln as President of the United States and South Carolina's secession from the Union. The Dred Scott Decision moved the country to the brink of Civil War.

ARTICLE I, Section 9 of the Constitution provides a significant, if disguised reference to slavery. It states:

Section 9 – Powers Forbidden to Congress

1) The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This paragraph refers to the slave trade. Dealers in slaves, as well as some slaveholders, wanted to make sure that Congress could not stop anyone from bringing African slaves into the country before the year 1808. That year, Congress did ban the importation of slaves.

The willingness of the framers of the Constitution and the courts to compromise on the human rights of slaves led to profound consequences for the United States including a civil war and a tumultuous period in the 20th century to reverse years of racist policies enshrined in the law. Put yourself in the shoes of the framers of the constitution and the challenges of arriving at a constitution that would be approved by three-fourths of the States. You are an American lawyer in 1787 assigned to work with the Constitutional Congress. Write a memoranda to the framers of the U.S.


Constitution proposing specific language to be added to the constitution to manumit those persons held as slaves? Reference the Declaration of Independence, the Constitution or the writings of the great “thinkers” of the time. Be creative, but recognize the economic and political issues associated with slavery at the time? Your memorandum can be as little as one paragraph, but no longer than one page.

Rev iew Ques t i ons

1. In what ways does federalism promote the protection of individual rights and liberties in the United States?

2. How would the United States of America be different if it had a consolidated, unitary government with no policy making authority in the states and localities?

3. What are the primary checks and balances between the three branches of the U.S. government?

4. What are primary historical influences on the development of the U.S. Constitution and why are they important?

5. Describe the reasoning of the courts in the pre-civil war period that continued the institution of slavery.

Semina r Top i c

Topic: Comparative Analysis of Constitutions of the U.S. to a Pacific Island Country (student’s country) in terms of Structure of Governments and the Judiciary

1. Prepare an oral presentation no longer than five minutes in length on the

following topics. a. What general systems of governance do we find among the Pacific

Islands? Identify the different models of governance and then contrast and compare these models with the U.S. version of a “three branch” and multi-level federal and state government.

b. Are the sources of law in the Pacific Islands different than the United States? If so, please briefly, but clearly describe.

American Law - Sources and Nature

KEY ASPECTS OF U.S. CONSTITUTION AND THEIR

INTERPRETATION

2 T O P I C


Study Time 7 hours Top ic Ou t l i ne

1. A Closer Look at the Branches of Government.

2. The Structure of the Judiciary Systems in the United States.

3. The Jurisdiction of the various Courts.



The role and constitutional authority for the three branches of the federal government

The nature of the state governments and their relationship to the federal government.

Understand that the American judicial system is actually made up of two separate court systems: the federal court system and the state court systems.

Know the structure of the federal court system and a typical state court system and be able to discuss the similarities and differences between the two.

Distinguish between the types of cases that are heard in the federal courts and those that are heard in the state courts.




Presc r i bed Read ing The Federal Court System in the United States, Leonidas Ralph

Mecham, Administrative Office of the U.S. Courts (2001), pages 7-40

Reference Article 1, 2, 3 and 4 in Constitution (from Topic 1)


Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), 98


Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault, University of Pennsylvania Law Review (2004)

I n t r oduc t i on

In this topic we will examine more closely the provisions of the Constitution and in particular the underlying constitution authority for each of the three branches of government. We will look at the personal rights addressed by the Constitution in Part 3 of the course. It should be remembered that the Constitution is a relatively short and basic document that in some cases only vaguely illuminates the powers of the three branches. The Constitution establishes a clear “division of powers”, but it also provides overlapping authority and responsibility among the three branches. While the constitution is a model of brevity, the writers of the constitution could not have possibly envisioned the range of issues that would challenge its interpretation and application. As we will see in greater detail in Part 2 of the course the judiciary has been kept busy over the past two centuries attempting to define the sometimes shadowing edges of the express powers given to the three branches of government.

A Closer Look at the Branches of Government under the Constitution The Constitution consists of a preamble, seven articles, and 27 amendments. It sets up a federal system by dividing powers between the national and state governments. It also establishes a balanced national government by separating powers among three independent branches — the executive, the legislative, and the judicial. The executive branch, the President, enforces national laws; the legislative branch, the Congress, makes national laws; and the judicial branch, the Supreme Court and other federal courts, applies and interprets laws when deciding legal disputes in federal courts. Voting citizens might be said to embody the fourth branch of government and are the ultimate “check and balance” in a representative democracy. Article I applies to the constitutional authority of the Congress, i.e. House of Representatives and Senate. Article II to the Executive Branch, i.e. President. Article III applies to the Judiciary and Article IV to the States. On September 25, 1789, one year after the Constitution went into effect, the First Federal Congress of the United States proposed to the state legislatures twelve amendments to the Constitution. Two were not approved, but the remaining ten,


became the first ten amendments to the U.S. Constitution and contained guarantees of essential rights and liberties omitted in the crafting of the original document. Coming on the heals of the signing of the Constitution these amendments were reassuring to citizens who may have been concerned about the federal government having unrestrained power in an age when most governments in the world were autocratic. Federal powers listed in the Constitution include the right to collect taxes, declare war, and regulate interstate and foreign trade. In addition to these delegated, or expressed powers (those listed in the Constitution), the national government has implied powers (those reasonably implied by the delegated powers.) The implied powers enable the government to respond to the changing needs of the nation. For example, Congress had no specific delegated power to print paper money. But such a power is implied in the delegated powers of borrowing and coining money. In some cases, the national and state governments have concurred powers — that is, both levels of government may act. The national government laws are supreme in case of a conflict. Powers that the Constitution does not give to the national government or forbid to the states, reserved powers, belong to the people or to the states. State powers include the right to legislate on divorce, marriage, and public schools. Powers reserved for the people include the right to own property and to be tried by a jury. The Supreme Court has the final authority to interpret the Constitution. It can set aside any law — federal, state, or local — that a majority of the justices believes conflicts with any part of the Constitution. The first three articles of the Constitution divide the powers of the United States government among three separate branches: (1) the legislative branch, represented by Congress; (2) the executive branch, represented by the President; and (3) the judicial branch, represented by the Supreme Court. This constitutional division, called the separation of powers, is designed to prevent any branch of the government from becoming too powerful. In addition, the Constitution creates checks and balances by providing the means by which each branch is required to work with the other branches in order to carry out its functions. For example, the President nominates federal judges but the Senate must confirm them. The Constitution also recognizes the authority of the State Governments, which in relation to the federal government is not another branch, but another level of government that is independent of the Federal government to the degree that the actions of the state government not interfere with the authority given by the Constitution to the Federal Government or deviate from a republican form of government. Each State has a Constitution similar in form to the U.S. Constitution. Under each State falls a myriad of local government including country and municipal governments.


The Congress Article I, Section 1, establishing the Legislative Branch, provides:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The two-house -- bicameral -- Congress was one of the most important compromises of the Constitutional Convention. The small states at the Convention supported the New Jersey Plan, under which each state would have had the same number of Representatives. The large states wanted the Virginia Plan, which provided representation based on population. As a compromise, one house was chosen according to each plan. Article 1, Section 2 provides:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article 1, Section 3 provides:

The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.

Senators are elected to six-year terms. Every two years, one-third of the Senators are elected and two-thirds are holdovers. This arrangement makes the Senate a continuing body, unlike the other House, whose entire membership is elected every two years. The 17th Amendment changed the method of filling vacancies. The governor chooses a Senator until the people elect one. Members of the House of Representatives are elected to two-year terms. The 15th, 19th, 24th, and 26th Amendments forbid the states to deny or restrict a citizen’s right to vote because of race, sex, or failure to pay a tax; or age if the person is at least 18 years old. Tax bills must originate in the House. The tradition that tax laws should originate in the lower house of the legislature comes from England. There, the lower house -- the House of Commons -- is more likely to reflect the people's wishes because the people elect its members. They do not elect the upper house, the House of Lords. In the United States, since the adoption of the 17th Amendment, this rule has little importance because the people elect both the Senate and the House. In addition, the Senate can amend a tax bill to such an extent that, in effect, it rewrites the whole measure. The Presidency Article 2 of the Constitution provides for the Presidency. The primary role of the President is to lead the executive branch of government, serve as commander in


chief and to authorize and implement legislation approved by the Congress. The President has broad domestic and foreign affairs powers. He is head of state, chief executive, commander in chief and has a pivotal role to play in the legislative process by refusing to sign legislation into effect. In examining the constitutional place of the President it is important to keep in mind that Article 2 and other provisions of the Constitution are rather vague in terms of the authority of the President, and it is necessary to cross-reference to other articles and amendments of the Constitution. For example, Article 1, which applies to the Congress, at Section 7, provides that the President has the authority to block legislation (called a veto) that has been approved through a vote of both houses of Congress. A bill passed by Congress goes to the President for the President’s signature. If the President disapproves the bill, he has 10 days not counting Sundays to return it to the chamber which originated it with a statement of the objections. This action is called a veto. Congress can pass a law over the President’s veto by a two-thirds vote of each house of those members present. The President can also let a bill become a law without signing it merely by letting 10 days pass. But a bill sent to the President during the last 10 days of a session of Congress cannot become a law unless it is signed. If a bill the President dislikes reaches the President near the end of the session, the bill may simply be held unsigned. When Congress adjourns, the bill is killed. This practice is known as a pocket veto. The States Before their independence, colonies were governed separately by the British Crown. In the early years of the republic, prior to the adoption of the Constitution, each state was virtually an autonomous unit. The delegates to the Constitutional Convention sought a stronger, more viable federal union, but they were also intent on safeguarding the rights of the states. While Article IV of the Constitution recognizes and gives authority to the States it is the 10th Amendment of the Bill of Rights that addresses the desire to safeguard the rights of the states. It states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The federal entity created by the Constitution is the dominant feature of the American governmental system. But the system itself is in reality a mosaic, composed of thousands of smaller units — building blocks that together make up the whole. There are 50 state governments plus the government of the District of Columbia, and further down the ladder are still smaller units that govern counties, cities, towns, and villages. This multiplicity of governmental units is best understood in terms of the evolution of the United States. The federal system was the last step in an evolutionary process. Prior to the Constitution, there were the governments of the separate colonies (later states) and, prior to those, the governments of counties and smaller units. One of the first tasks accomplished by the early English settlers


was the creation of governmental units for the tiny settlements they established along the Atlantic coast. Even before the Pilgrims disembarked from their ship in 1620, they formulated the Mayflower Compact, the first written American constitution. And as the new nation pushed westward, each frontier outpost created its own government to manage its affairs. The drafters of the U.S. Constitution left this multilayered governmental system untouched. While they made the national structure supreme, they recognized the need for a series of governments more directly in contact with the people and more keenly attuned to their needs. Thus, certain functions — such as defense, currency regulation, and foreign relations — could only be managed by a strong centralized government. But others — such as sanitation, education, and local transportation — could be better served by local jurisdictions. In general, matters that lie entirely within state borders are the exclusive concern of state governments. These include internal communications; regulations relating to property, industry, business, and public utilities; the state criminal code; and working conditions within the state. Within this context, the federal government requires that state governments must be democratic in form and that they adopt no laws that contradict or violate the federal Constitution or the laws and treaties of the United States. There are, of course, many areas of overlap between state and federal jurisdictions. Particularly in recent years, the federal government has assumed ever broadening responsibility in such matters as health, education, welfare, transportation, and housing and urban development. But where the federal government exercises such responsibility in the states, programs are usually adopted on the basis of cooperation between the two levels of government, rather than as an imposition from above. Like the national government, state governments have three branches: executive, legislative, and judicial; these are roughly equivalent in function and scope to their national counterparts. The chief executive of a state is the governor, elected by popular vote, typically for a four-year term (although in a few states the term is two years). Except for Nebraska, which has a single legislative body, all states have a bicameral legislature, with the upper house usually called the Senate and the lower house called the House of Representatives, the House of Delegates, or the General Assembly. In most states, senators serve four-year terms, and members of the lower house serve two-year terms. The constitutions of the various states differ in some details but generally follow a pattern similar to that of the federal Constitution, including a statement of the rights of the people and a plan for organizing the government. On such matters as the operation of businesses, banks, public utilities, and charitable institutions, state constitutions are often more detailed and explicit than the federal one. Each state constitution, however, provides that the final authority belongs to the people, and sets certain standards and principles as the foundation of government Article IV of the Constitution addresses the relations of states to one another and to the federal government. Much of Article IV was taken word for word from the Articles of Confederation that loosely governed the Untied States directly after


independence until the Constitution was ratified. Section1 and 2 are of particular importance.

Article IV, Section 1 - Relation of the States to Each Other Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 1 requires the states to honour one another's laws, records, and court rulings.

Article IV, Section 2 provides: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This means that citizens travelling from state to state are entitled to all the privileges and immunities that automatically go to citizens of those states. Some privileges, such as the right to vote, do not automatically go with citizenship, but require a period of residence and perhaps other qualifications. .

The Jud ic ia ry and Jud ic ia l Sys tems

The Constitution gives federal courts under Article 3 considerable independence from both the Congress and the President. The guarantee that judges shall hold office during "good behavior" means that, unless they are impeached and convicted, they can hold office for life. This protects judges from any threat of dismissal by the President who appointed them, or by any other President during their lifetime. The rule that a judge's salary may not be reduced protects the judge against pressure from Congress, which could otherwise threaten to fix the salary so low that the judge could be forced to resign. The Supreme Court has original jurisdiction in cases affecting foreign governments and their representatives and in cases to which a state government is one of the parties means that cases of this kind go directly to the Supreme Court. In other cases, the Supreme Court has appellate jurisdiction. This means that the cases are tried first in a lower court and may come up to the Supreme Court for review if Congress has authorized an appeal for such kinds of cases. Congress cannot take away or modify the original jurisdiction of the Supreme Court, but it can take away the right to appeal to that Court or fix the conditions one must meet to present an appeal. Though independent of the two other branches of government the Constitution creates some “checks’ on the power and authority of the federal courts. The President has the authority to appoint the judges of the federal court system.


Congress has three basic responsibilities under the Constitution that determine how the federal courts will operate. First, it authorizes the creation of all federal courts below the Supreme Court, defines the jurisdiction of the courts, and decides how many judges there should be for each court. Second, through the confirmation process, the Senate determines which of the President’s judicial nominees ultimately become federal judges. Third, Congress approves the federal courts’ budget and appropriates money for the judiciary to operate. The judiciary’s budget is a very small part - about two-tenths of one percent - of the entire budget of the Federal Government. Because of Federalism’s reach there are two distinct court systems in the United States: federal and state. Federal Court System The term federal court can actually refer to one of two types of courts. The first type of court is what is known as an Article III court. These courts get their name from the fact that they derive their power from Article III of the Constitution. These courts include (1) the U.S. District Courts, (2) the U.S. Circuit Courts of Appeal, and (3) the U.S. Supreme Court. They also include two special courts: (a) the U.S. Court of Claims and (b) the U.S. Court of International Trade. These courts are special because, unlike the other courts, they are not courts of general jurisdiction. Courts of general jurisdiction can hear almost any case. All judges of Article III courts are appointed by the President of the United States with the advice and consent of the Senate and hold office during good behavior. The second type of court also is established by Congress. These courts are (1) magistrate courts, (2) bankruptcy courts, (3) the U.S. Court of Military Appeals, (4) the U.S. Tax Court, and (5) the U.S. Court of Veterans' Appeals. The judges of these courts are appointed by the President with the advice and consent of the Senate. They hold office for a set number of years, usually about 15. Magistrate and bankruptcy courts are attached to each U.S. District Court. The U.S. Court of Military Appeals, U.S. Tax Court, and U.S. Court of Veterans' Appeals are called Article I or legislative courts.

U.S. District Courts There are 94 U.S. District Courts in the United States. Every state has at least one district court, and some large states, such as California, have as many as four. Each district court has between 2 and 28 judges. The U.S. District Courts are trial courts, or courts of original jurisdiction. This means that most federal cases begin here. U.S. District Courts hear both civil and criminal cases. In many cases, the judge determines issues of law, while the jury (or judge sitting without a jury) determines findings of fact. U.S. Circuit Courts of Appeal There are 13 U.S. Circuit Courts of Appeal in the United States. These courts are divided into 12 regional circuits and sit in various cities throughout the country. The U.S. Court of Appeals for the Federal Circuit


(the 13th Court) sits in Washington. With the exception of criminal cases in which a defendant is found not guilty, any party who is dissatisfied with the judgment of a U.S. District Court (or the findings of certain administrative agencies) may appeal to the U.S. Circuit Court of Appeal in his/her geographical district. These courts will examine the trial record for only mistakes of law; the facts having already been determined by the U.S. District Court. Therefore, the court usually will neither review the facts of the case nor take any additional evidence. When hearing cases, these courts usually sit in panels of three judges. U.S. Supreme Court The Supreme Court of the United States sits at the apex of the federal court system. It is made up of nine judges, known as justices, and is presided over by the Chief Justice. It sits in Washington, D.C. Parties who are not satisfied with the decision of a U.S. Circuit Court of Appeal (or, in rare cases, of a U.S. District Court) or a state supreme court can petition the U.S. Supreme Court to hear their case. This is done mainly by a legal procedure known as a Petition for a Writ of Certiorari (cert.). The Court decides whether to accept such cases. Each year, the Court accepts between 100 and 150 of the some 7,000 cases it is asked to hear for argument. The cases typically fit within general criteria for oral arguments. Four justices must agree to hear the case (grant cert). While primarily an appellate court, the Court does have original jurisdiction over cases involving ambassadors and two or more states. Special Article III Courts

o U.S. Court of Claims: This court sits in Washington, D.C., and handles cases involving suits against the government.

o U.S. Court of International Trade: This court sits in New York and handles cases involving tariffs and international trade disputes.

Special Courts Created by Congress under Article I

o Magistrate judges: These judges handle certain criminal and civil matters, often with the consent of the parties.

o Bankruptcy courts: These courts handle cases arising under the Bankruptcy Code.

o U.S. Court of Military Appeals: This court is the final appellate court for cases arising under the Uniform Code of Military Justice.

o U.S. Tax Court: This court handles cases arising over alleged tax deficiencies.

o U.S. Court of Veterans' Appeals: This court handles certain cases arising from the denial of benefits for military veterans.

State Court Systems No two state court systems are exactly alike. Nevertheless, there are sufficient similarities to provide an example of what a typical state court system looks like. Most state court systems are made up of (1) two sets of trial courts: (a) trial


courts of limited jurisdiction (probate, family, traffic, etc.) and (b) trial courts of general jurisdiction (main trial-level courts); (2) intermediate appellate courts (in many, but not all, states); and (3) the highest state courts (called by various names). Unlike federal judges, most state court judges are not appointed for life but are either elected or appointed (or a combination of both) for a certain number of years.

Trial Courts of Limited Jurisdiction Trial courts of limited jurisdiction are courts that deal with only specific types of cases. They are often located at the county level and are usually presided over by a single judge. A judge sitting without a jury hears most of the cases heard by these courts. Some examples of trial courts of limited jurisdiction include:

Probate court: This court handles matters concerning administering the estate of a person who has died (decedent). It sees that the provisions of a will are carried out or sees that a decedent's property is distributed according to state law if he/she died intestate (without a will). Family court: This court handles matters concerning adoption, annulments, divorce, alimony, custody, child support, etc. Traffic court: This court usually handles minor violations of traffic laws.

Juvenile court: This court usually handles cases involving delinquent children under a certain age, for example, 18 or 21.

Small claims court: This court usually handles suits between private persons of a relatively low dollar amount, for example, less than $5,000.

Municipal court: This court usually handles cases involving offenses against city ordinances.

Trial Courts of General Jurisdiction Trial courts of general jurisdiction are the main trial courts in the state system. They hear cases outside the jurisdiction of the trial courts of limited jurisdiction. These involve both civil and criminal cases. One judge (often sitting with a jury) usually hears them. In such cases, the judge decides issues of law, while the jury decides issues of fact. A record of the proceeding is made and may be used on appeal. These courts are called by a variety of names, including (1) circuit courts, (2) superior courts, (3) courts of common pleas, (4) and even, in New York, supreme courts. In certain cases, these courts can hear appeals from trial courts of limited jurisdiction.


Intermediate Appellate Courts Many, but not all, states have intermediate appellate courts between the trial courts of general jurisdiction and the highest court in the state. Any party, except in a case where a defendant in a criminal trial has been found not guilty, who is not satisfied with the judgment of a state trial court may appeal the matter to an appropriate intermediate appellate court. Such appeals are usually a matter of right (meaning the court must hear them). However, these courts address only alleged procedural mistakes and errors of law made by the trial court. They will usually neither review the facts of the case, which have been established during the trial, nor accept additional evidence. These courts usually sit in panels of two or three judges. Highest State Courts All states have some sort of highest court. While they are usually referred to as supreme courts, some, such as the highest court in Maryland, are known as courts of appeal. In states with intermediate appellate courts, the highest state courts usually have discretionary review as to whether to accept a case. In states without intermediate appellate courts, appeals may usually be taken to the highest state court as a matter of right. Like the intermediate appellate courts, appeals taken usually allege a mistake of law and not fact. In addition, many state supreme courts have original jurisdiction in certain matters. For example, the highest courts in several states have original jurisdiction over controversies regarding elections and the reapportionment of legislative districts. These courts often sit in panels of three, five, seven, or nine judges/justices.

Jurisdiction of Federal and State Courts For a good illustrated summary of the jurisdiction provided to the various levels of federal and state courts refer to page 17 of Understanding the Federal Court System. Federal Court Jurisdiction The jurisdiction of the federal courts is spelled out in Article III, Section 2, of the United States Constitution. Federal courts are courts of limited jurisdiction because they can hear only two main types of cases:

Diversity of Citizenship

Federal courts can have jurisdiction over a case of a civil nature in which parties are residents of different states and the amount in question exceeds the amount set by federal law (currently $75,000). The federal courts are often required to apply state law when dealing with these cases since the issues concern matters of state law. The fact that the parties are from


different states and that the amount in question is high enough is what manages to get such cases into federal court. Federal Question Federal courts have jurisdiction over cases that arise under the U.S. Constitution, the laws of the United States, and the treaties made under the authority of the United States. These issues are the sole prerogative of the federal courts and include the following types of cases:

Suits between states - Cases in which two or more states are a party.

Cases involving ambassadors and other high-ranking

public figures - Cases arising between foreign ambassadors and other high-ranking public officials.

Federal crimes - Crimes defined by or mentioned in the

U.S. Constitution or those defined and/or punished by federal statute. Such crimes include treason against the United States, piracy, counterfeiting, crimes against the law of nations, and crimes relating to the federal government's authority to regulate interstate commerce. However, most crimes are state matters.

Bankruptcy - The statutory procedure, usually triggered by

insolvency, by which a person is relieved of most debts and undergoes a judicially supervised reorganization or liquidation for the benefit of the person's creditors.

Patent, copyright, and trademark cases

Patent - The exclusive right to make, use, or sell an invention for a specified period (usually 17 years), granted by the federal government to the inventor if the device or process is novel, useful, and non-obvious.

Copyright - The body of law relating to a property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. Trademark - A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.

Admiralty - The system of jurisprudence that has grown

out of the practice of admiralty courts: courts that exercise


jurisdiction over all maritime contracts, torts, injuries, and offenses.

Antitrust - The body of law designed to protect trade and

commerce from restraining monopolies, price fixing, and price discrimination.

Securities and banking regulation - The body of law

protecting the public by regulating the registration, offering, and trading of securities and the regulation of banking practices.

Other cases specified by federal statute - Any other cases

specified by an applicable federal statute. In addition, the federal courts have jurisdiction over several other types of cases arising from acts of Congress. For example, the courts have jurisdiction in a wide variety of (1) civil rights, (2) labor relations, and (3) environmental cases. While these laws provide a "floor" for the states, they do not provide a "ceiling." If states regulate more extensively in these areas than the federal government, then state courts also will have jurisdiction in these areas.

Jurisdiction of the State Courts The jurisdiction of the state courts extends to basically any type of case that does not fall within the exclusive jurisdiction of the federal courts. State courts are common-law courts. This means that they not only have the authority to apply or interpret the law, but they often have the authority to create law if it does not yet exist by act of the legislature to create an equitable remedy to a specific legal problem. Examples of cases within the jurisdiction of the state courts usually include the following:

Cases involving the state constitution—Cases involving the interpretation of a state constitution. State criminal offenses—Crimes defined and/or punished by the state constitution or applicable state statute. Most crimes are state criminal offenses. They include offenses such as murder, theft, breaking and entering, and destruction of property. Tort and personal injury law—Civil wrongs for which a remedy may be obtained, usually in the form of damages; a breach of duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction. Contract law—Agreements between two or more parties creating obligations that are either enforceable or otherwise recognized as law.


Probate—The judicial process by which a testamentary document is established to be a valid will, the proving of a will to the satisfaction of a court, the distribution of a decedent's assets according to the provisions of the will, or the process whereby a decedent's assets are distributed according to state law should the decedent have died intestate. Family—The body of law dealing with marriage, divorce, adoption, child custody and support, and domestic-relations issues. Sale of goods—The law concerning the sale of goods (moveable objects) involved in commerce (especially with regards to the Uniform Commercial Code, see Topic 4). Corporations and business organization—The law concerning, among other things, the establishment, dissolution, and asset distribution of corporations, partnerships, limited partnerships, limited liability companies, etc. Election issues—The law concerning voter registration, voting in general, legislative reapportionment, etc. Municipal/zoning ordinances—The law involving municipal ordinances, including zoning ordinances that set aside certain areas for residential, commercial, industrial, or other development. Traffic regulation—A prescribed rule of conduct for traffic; a rule intended to promote the orderly and safe flow of traffic. Real property—Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.

Areas of Concurrent Jurisdiction for Federal and State Courts In addition to areas in which the states have regulated on a matter more extensively than the federal government, state courts have concurrent jurisdiction with federal courts concerning the following points of law:

Diversity of Citizenship - In civil cases involving citizens of two or more states in which the dollar amount in question exceeds $75,000, a state court may hear the case if the defendant in the case does not petition to have the case removed to federal court. Furthermore, if a civil case involves two or more citizens of different states but the amount in question does not exceed $75,000, the case must be heard by a state court. Federal Question - Any state court may interpret the U.S. Constitution, federal statute, treaty, etc., if the applicable Constitutional provision, statute, or treaty has direct bearing on a case brought in state court under a state law. However, by interpreting the U.S. Constitution, federal statute, or treaty, the state is subjecting itself to federal review. This means that after a state supreme court has acted on a case, the U.S. Supreme Court may review it. In such instances, the U.S. Supreme Court is concerned


S T U D Y T A S K 1

only with reviewing the state court's interpretation of the applicable federal Constitutional provision, statute, or treaty. It does not review any matters of law that are under the exclusive jurisdiction of the state courts.

We will review the subtleties of judicial review in greater detail at Topic 5 of the course.

What nations in the Pacific region may also have a dual judicial system (national-state) similar to the United States, i.e. national court system and state or regional government court system. What are the advantages or disadvantages of the dual system utilized in the United States? Are there reasons why the countries adopting a dual system in the Pacific region might have done so?


1. What are the three primary types of courts in the federal systems?

2. What types of cases do State and other local courts normally hear?

3. When would a State court decision be appealable to the Federal courts.

4. Does the Supreme Court ever have the right of “first impression”, to review a case not heard by lower courts?

5. What would be the normal course of review for a losing party in the federal system of a case decided by a district court?

6. What is the difference between an Article 1 and Article 3 court in the federal system?

7. How are judges selected in the federal system? In the state system?

Semina r Top i c

Topic: Selection of Judges and Parallel Court Systems 1. Read Republican Party of Minnesota v. White concerning the selection of

state court judges. White considered and invalidated the Minnesota Code of Judicial Conduct’s Announce Clause, which stated that a judicial candidate should not “announce his or her views on disputed legal or political issues.” The Court invalidated that part of the State’s Judicial Conduct Code because it deemed the Announce Clause as being in conflict with the First Amendment of the U.S. Constitution. It held that any interest on the part of the State of Minnesota in the election of judges who are deemed impartial was outweighed by the First Amendment interest in protecting even the speech of judges running for election to state judicial office. White is a case that also illustrates the delicate policy issues that may arise with the election of judges in the state court systems


as opposed with the appointment process in the federal court system. Prepare talking points for a discussion at this week’s seminar that respond to the following questions. It may be helpful to refer to pages 202-214 of Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault, University of Pennsylvania Law Review (2004)

a. Why did the Supreme Court declare unconstitutional the

“Announce Clause” but did not declare unconstitutional the “Pledges or Promises Clause”, which prohibits judges in Minnesota from making “promises” while campaigning for judicial office?

b. Contrast and Compare - the Federal and State Judicial Systems on

the following.

i. Subject matter jurisdiction ii. Personal jurisdiction

iii. Selection of Judges iv. Concurrent Jurisdiction

c. What are the advantages and disadvantages from your perspective

of having two parallel judicial systems such as the United States?

Part 1 - American Law - Sources and Nature

THE TRADITIONAL COMMON LAW SYSTEM APPLIED IN THE U.S.

3 T O P I C




1. State Common Law: Creation of "Products Liability Law" in New York

2. The Nature of U.S. Federal Common Law



How common law develops in the U.S. state court system illustrated by the creation of "Products Liability Law" in New York and the change of common law for this body of law from warranty to tort.

How federal common law is developed, the limits on federal court judges to make common law and how and why federal courts reference state common law in certain instances.




Presc r i bed Read ing Seixas v. Woods

Thomas v. Winchester

MacPherson v. Buick Motor Co.

Greenberg v. Lorenz

Goldberg v. Kollsman Instrument Corp

Codling v. Paglia

Erie Railroad Co. V. Tompkins

East River Steamship Corp. v. Transamerica Delaval, Inc


FOR SEMINAR - Common Law Within Three Federations, Mark Leeming, University of Sydney Law School Research paper No. 07/64 (Public Law Review, Vol. 18, No. 3, pp. 186-199, 2007)


Law in the United States, Abernathy, Pages 48-76

European Product Liability Directive (EC Directive).


I n t roduc t ion

In Topic 3 we will explore the evolution of common law authority in the United States. First we will look at the development of state common law through the prism of product liability law by the courts of New York State. Then we will examine how the U.S. Supreme court has limited the authority of the federal courts to review the determination of state courts while at the same time establishing a so-called specialized federal common law.

Sta te Comm on La w: Cre a t ion o f "Products L iab i l i t y Law" in New York

The development of product liability law in the state of New York demonstrates the adopting of English common law on the warranty of goods by American states and then its adaptation through about two hundred years of litigation and judicial reasoning. During this period there is a transition from “contract law” to “tort” from theories of caveat emptor to privity of contract to negligence and then to the modern rules concerning strict liability. As you read these cases identify the rules created by the court, how the court dealt with precedent and what factors or policies led to creation of law. State Common Law - Early Attitudes toward Product Liability Seixas v. Woods, decided by the NY Supreme Court in 1804, was the case through which the English doctrine of warranty of goods came into American jurisprudence. In short, that doctrine provided that unless a seller had expressly warranted his goods (probably through use of the words "I warrant") or had known of defects in the goods and deliberately misrepresented them, then no action for breach of warranty would lie. This case would be overturned later in the century by New York courts, but it is important to understanding the common law rule on warranty of goods that was in effect for 250 years. As the court says: "this was an action on the case for selling peachum wood for brazilletto. The former worth hardly any thing, the latter of considerable value." Defendant Woods was an agent for a lumber concern and picked up the wood for his employer along with an invoice that said the wood was brazilletto. He then sold the wood in question also with an invoice stating it was brazilletto. He did not know it was peachum, nor was evidence put on at trial that he knew it was peachum. Only later, after plaintiff had picked up the wood, paid for it (at the higher price) and defendant had remitted the money to his employer, did plaintiff discover the wood to be peachum. Suit was brought against the agent and verdict was taken for the plaintiffs.


The court stated the issues as: (1) whether an action could be maintained to recover back the consideration money paid in the circumstances of the case; and (2) whether the defendant, who acted as an agent, could be made responsible. The court first asked if there was an implied warranty in the sale. The doctrine of implied warranty (i.e., with the sale of new goods comes a warranty that they would be fit for ordinary purposes) wouldn't really develop until later in the 19th century, and so the court collapsed its question into the question of express warranty. The judge found that"(f)rom an examination of the decisions in courts of common law, I can find no case where an action has been sustained under similar circumstances: an express warranty, or some fraud in the sale, are deemed indispensably necessary to be shown". The Court concluded: "the defect now complained of was within the reach of his observation and judgment, had he bestowed proper attention. I am satisfied that according to the settled decisions in the English courts, either an express warranty, or some fraud or deceit on the part of the vendor, is necessary to be shown, in order to entitle the purchaser to the remedy sought after in the present case. I see no injustice or inconvenience resulting from this doctrine, but, on the contrary, think it is best calculated to excite that caution and attention which all prudent men ought to observe in making their contracts." Thomas v. Winchester - Diluting the Necessary Contractual Relationship In the case of Thomas v. Winchester (6 N.Y. 397 (1852)), Winchester mislabeled a bottle of poison as 'dandelion oil'. A druggist sold the bottle to Thomas who was poisoned. The court in Winchester relied on the doctrine of privity established in the precedent English case of Winterbottom v. Wright (1842). Under this doctrine, Thomas would not be able to sue Winchester because Thomas did not buy the product from him and was not under contract (the druggist bought the bottle from Winchester and resold it.) However, the Court decided to make an exception to the privity requirement when the case was exceptionally egregious. The druggist could not be held liable because it was unreasonable for him to be expected to test every single bottle. So even though the druggist was in privity with Thomas, he was not at fault. The responsible party was Winchester, so in the name of justice, the Court modified the rule to allow Thomas to recover. As we will see in the next case of MacPherson v. Buick Motor Co. the New York Supreme Court threw out the requirement for privity altogether and allowed for strict liability for defective products.

Doctrine of Privity The earliest common law view on product liability was that the plaintiff could never win what was essentially an uphill battle under the name of “privity limitation”, which meant that any upstream party in the chain of distribution could only be sued by the person to whom he sold and delivered the product in question. This rule owes its origin to the 1842 English case of Winterbottom v. Wright. There the Court held that the party who poorly repaired a coach owned by the Postmaster General could not be sued at all (because of sovereign immunity) when the coach had been let out to a contractor whose driver was injured when the coach broke in ordinary use. The driver was only in privity with his employer. The employer could not be sued because he had done nothing wrong. The repairman, who did something wrong, could not be sued because of the absence of any direct connection.


S T U D Y T A S K 1

MacPherson v. Buick Motor Co. – A manufacturer’s Liability to Third Parties for Negligence instead of Contract Originally, the basis for product liability was not the general duty of reasonable care but the duty implicitly undertaken in a contract. Therefore the manufacturer could only be liable to the buyer, who was in privity of the contract, and could not be held liable to other people injured by the defective product. Then, in the case of MacPherson v. Buick Motor Co. (217 N.Y. 382, 111 N.E.1050 (1916)), the wheel of an auto fell off, injuring the owner of the car (MacPherson). Since MacPherson had bought the car from a retailer, and not Buick directly there was no privity. However, the New York Supreme Court changed the law to substitute foreseeability for privity in a contract as a requirement for liability. Although this case did away with the requirement for privity, there is still a requirement to show negligence on the manufacturer.

Answer the following questions about early product liability law in the United States.

What if the outcome in Seixas v. Woods was precedent today? Do you feel that the process of purchasing goods would have adapted to make the outcome less troublesome for the purchaser?

If, instead, the court in MacPherson had strictly relied on Winterbottom v. Wright as precedent, how would the case have been decided? Would Buick have owed liability to any party? If so, which party?

What business factor do you think made the court in MacPherson discard entirely the privity rule?

What if the court in MacPherson had been persuaded to follow the ruling in Thomas v. Winchester? What would the plaintiff have to establish? Do you think the court in Winchester would have been persuaded by an argument of Res Ipsa Loquitur? How about in MacPherson? Do you think the courts in any of the three cases were strictly following common law precedent or was there policy making infused in any or all of the three cases? If so, how do you think this was justified by the court(s)?

Gradual Change in the Common Law The next great step in liability took place outside of New York in Escola v. Coca-Cola Bottling Co. (1944), a California case, where the opinion repeatedly invoked the "public interest", insisted that actions for defective products should be governed by a strict liability standard, so that negligence in fabrication or design need not be proved at all. The court insisted that liability only attached for latent defects that caused harm in their original condition to individuals who made "normal and proper" use of the product. The standard was perhaps sensible,


but the standards of evidence were imprecise. It is said that many bottle cases brought against Coca-Cola and its bottlers at the time were fraudulent, as claimants were instructed by their lawyers to say that they handled the bottle correctly even though some of the bottles had been stored in hot places or opened by knocking them on the side of a counter. Despite opening the door, liability was difficult to prove despite the insertion of “public interest” into the common law of product liability. Escola set the stage for the courts in New York to change their common law again to meet changing social conditions. Greenberg v. Lorenz Greenberg was an infant whose mouth and gums were damaged from sharp metal objects found in a tin of fish bought for Greenberg by her father. The issue in Greenberg is - if warranty liability is based on contract, does it extend to an injury suffered by a member of the household of the contracting party? Note in this case the retailer, i.e. Lorenz, was a defendant and a third party plaintiff against the food processing company, i.e. Beatrice Foods. The Plaintiff, Greenberg, sued the retailer and the retailer enjoined the food processing company as a third party defendant. Why do you think Judge Froessel concurred with the other six judges of the Court of Appeals, but then made the following commentary?

Indeed, the Legislature has not been unaware of the problem for, in three separate years 1943, 1945, 1959 as noted by the Chief Judge, the New York State Law Revision Commission recommended that the benefits of implied warranties be extended to the buyer's employees and to the members of his household, but the Legislature has declined to act, despite the introduction of legislation. I do not think we should now assume their powers and change the rules, which will undoubtedly affect many cases in which lawyers and litigants understood the law to be otherwise, and governed themselves accordingly.

Why do you think the Legislature was slow to act? Goldberg v. Kollsman Instruments Corp The issue in Goldberg is - does warranty liability extend to a person with no contractual relationship to the manufacturer whose effect from the product was within the reasonable contemplation of the manufacturer? The case applied strict liability against the airplane manufacturer but not the altimeter supplier when the plaintiff’s daughter was killed in a plane crash caused by a defective altimeter. The case presents an instructive example of a traditional duty limitation. Surprisingly, the court held the defendant Lockheed liable, even though it had done no more than install the altimeter in the aircraft that crashed and which it manufactured. Thus, the entity that was directly negligent was immune. This paradox within the duty doctrine arises from the possibility of efficient negligence.


The ‘‘Tort’’ of Products Liability and the Doctrine of Strict Liability Be sure that you can identify the following procedural aspects of the decision in Codling v. Paglia, the 1973 decision by the New York Court of Appeals that changed New York’s common law on product liability by manufactures. To gain a broader perspective on the relevance of product liability to the longevity of common law as a source of law in America read the excerpt from Hugh Jones and Modern Courts: the pursuit of justice then and now Albany Law Review, (Summer, 2002, Richard C. Wesley)

The court in which the action was commenced The law that applied to the dispute The roles of the judge and the jury The relief granted The court issuing the opinion that you are reading

Consider the following questions:

Does the court require “privity” between Chrysler and the plaintiffs in order for the plaintiff to recover?

Does the court require a showing of negligence on the part of Chrysler in order for plaintiffs to recover?

In what ways does the concurring opinion differ from that of the majority?

Codling v. Paglia Finally in 1974 came the decisive case of Codling v. Paglia. The issue in Codling was - if the law is to be so broad as to extend liability to the injuries of a bystander with no relationship to the sale of the product, does the liability to the bystander derive from tort or contract? Does it require proof of negligence? In Codling a four-month-old car driven by Paglia suddenly and inexplicably drifted across the road's dividing line into oncoming traffic. Chrysler, a large American car manufacturer, in defending the suit, stressed that Paglia had failed to prove any specific defect, emphasizing in particular the inadequacy of the plaintiff's post-accident tests to demonstrate a specific defect. The New York Court of Appeals rejected this argument and upheld an instruction to the jury on breach of warranty that explained:

While the burden is upon the plaintiff to prove that the product was defective and that the defect existed while the product was in the manufacturer's possession, plaintiff is not required to prove the specific defect, especially where the product is complicated in nature. Proof of necessary facts may be circumstantial. Though the happening of the accident is not proof of a defective condition, a defect may be inferred from proof that the product did not perform as intended by the manufacturer....


The New York Court of Appeals held that a plaintiff's failure to prove why a product malfunctioned does not necessarily prevent a plaintiff from showing that the product was "defective." Accordingly, the Court of Appeals affirmed the jury's conclusion that "the steering mechanism of the automobile was not fit for the purpose for which it was intended.” The court held that, under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages. The Codling decision marked almost the complete shift of the common law over a one hundred eighty year period for liability due to defective products. In Hymowitz v. Eli Lilly and Company, 73 N.Y.2d 487 (1989), the court began to ignore the contractual relationships between the manufacturer and the injured and instead to introduce the torts law into the theories of product liability. In Hymowitz, where the plaintiff sued for damages the defendant, a drug manufacturer who did not exactly caused the injuries but was one of the injuring parties, the court held that the defendant was liable based completely on the torts law theories without reference to any contractual restraints. Many people were injured when their mothers took a prescription drug while pregnant. However, many manufacturers at the time manufactured identical versions of the drug, records were scarce, and there was no way to ascertain which manufacturer caused which damages. It was held that all manufacturers were to be apportioned liability based upon their national market share. The court ruled that the liability didn’t have to correspond to actual injury caused (contrast this with Codling), but instead approximates culpability through general risk presented to the public. The manufacturers who could prove they did not produce the drug for use relating to pregnancy will be exculpated.


Strict Liability: The Modern U.S. Standard – Restatement of Law, Product Liability Products liability law evolved gradually to a mixture of contracts and torts laws. That is, a cause of action concerning products liability rises from contracts law and is proposed in a way of a torts claim. Almost all fifty states have now adopted strict liability in one form or another, and it has been incorporated into the Restatement (Second) of Torts and the Restatement (Third) of Torts: Products Liability. The Restatements, published by a Legal Institute, provide what is an attempt in America to restate the “common law” and provide decision-making guidance to courts based on case authority and legal literature. Section 402A of the Restatement (Second) of Torts, promulgated in 1965, sets out the commonly accepted U.S. standard for a seller’s liability. It applies to anyone who is in the business of selling products and sells a product in such a condition as to pose an unreasonable danger of physical harm to the user or consumer, or to his or her property. Section 402A applies regardless of privity and even if “the seller has exercised all possible care.” The Restatement (Third) of Torts: Products Liability expands on Section 402A by incorporating principles established through case law since the 1960s. In accordance with case law, the Restatement (Third) of Torts identifies three types of product defects: manufacturing defects, design defects, and information defects. Manufacturing defects are present when the product is not what the manufacturer intended. Examples include damaged, physically flawed, and incorrectly assembled products. Products with design defects are those that reach

Restatement of Law 2nd Products Liability s 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Caveat: The Institute expresses no opinion as to whether the rules stated in this Section may not apply

(1) to harm to persons other than users or consumers; (2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or (3) to the seller of a component part of a product to be assembled.


S T U D Y T A S K 2

the consumer in the form intended by the manufacturer, but something in the design makes them dangerous, and foreseeable risks could have been avoided with an alternative design. Finally, information defects are attributed to products that are unavoidably dangerous yet useful to society; therefore, they are only defective if appropriate, adequate warnings are not attached. The Restatement Third is influencing courts – but more courts tend to stay with the more limited guidance of Restatement 2nd.

Is product liability and tort law even appropriately characterized as regulatory law, or is it designed to accomplish other ends? Might it instead be characterized as a scheme of legalized vengeance or a mechanism of corrective justice or a device for rendering modern society more distributively just? What do we know about the benefits and costs of the tort system in America? Does it deliver what it promises to deliver in America as seen through the development of the product liability law in New York? Does it do so efficiently? Can it be made more effective, or should it be scrapped in whole or in part? Has the common law added clarity or just muddied the waters? What can a comparison of the American tort system with those of other nations teach us? Is tort law’s relative prominence in the U.S. a product of a relatively dispersed government and legal system and/or America’s strongly individualist culture? Do other nations’ experiences suggest promising paths for reform or cautionary tales? For example, see the European Product Liability Directive (EC Directive).that required all Member States to adopt similar measures for the protection of consumers. Could and should the American model be successfully exported to other legal systems in who or part? How much litigation is occurring in the Pacific Islands over product liability? Does the frequency or lack of frequency illustrate economic, demographic, social or cultural factors that are unlike those in the United States?

The Na ture o f U .S . Federa l Comm on Law

The Erie Doctrine In the English legal tradition judge-made common law, law developed by courts in the absence of applicable legislation, has played a critical role in the determination of rights, duties, and remedies. In contrast the U.S. national government is a federated system in which the government is distinguished by limited, delegated powers. This form of government raises the question about whether and under what circumstances the federal courts are empowered to formulate federal common law. Although it is now settled that the federal courts do have such authority in civil matters, the debate continues over the sources of that authority and the proper scope of its exercise. The Supreme Court's decision


in Erie Railroad Co. v. Tompkins (1938) marked a critical turning point on this issue? Prior to Erie, the federal courts did not generally strive to develop a federal, or national, common law binding on the states. Indeed, on occasion the courts ruled that it did not exist (Wheaton v. Peters, 1834; Smith v. Alabama, 1888) Yet the Supreme Court, in Swift v. Tyson (1842) upheld the authority of the federal courts, in cases within their diversity jurisdiction to determine certain controversies on the basis of "general principles and doctrines" of jurisprudence and without regard to the common law decisions of the state courts. The reasoning behind the decision in Swift v. Tyson was that the federal courts would craft a superior common law, and the states would choose to adopt it. This hope was not fulfilled, however, as states continued to diverge in their own legal practices. Some litigants began to abuse the availability of the federal courts for the specific purpose of having cases decided under the federal common law principles. Thus, during the reign of Swift v. Tyson, the federal courts exercised considerable common law authority over a variety of disputes, ultimately extending well beyond the interstate commercial controversy involved in Swift itself and involving matters not readily perceived as being subject to the federal legislative power. The decisions rendered in these cases, however, did not purport to bind the state courts, and the result was often the parallel existence of two different rules of law applicable to the same controversy, with the governing rule dependent on the forum in which the controversy was adjudicated. There is general agreement that the Court expanded Swift well beyond its originally intended scope and that its overruling, in Erie, reflected a very different perception of the proper role of the federal courts. The Court in Erie concluded that there was no "general" federal common law—that the Rules of Decision Act, originally section 34 of the Judiciary Act of 1789, required adherence to state decisional or common law in controversies such as Erie itself, a case that fell within federal jurisdiction solely on the basis of the parties' diversity of citizenship, i.e. generally meaning a dispute between citizens of two different states. But the Erie decision helped bring to the surface the existence of what has been called a "specialized" federal common law, operating in those areas where the application of federal law seems warranted even though no federal constitutional or legislative provision points the way to a governing rule. Indeed, on the very day that Erie was decided, the Court in Hinderlider v. La Plata River & Cherry Creek Ditch Co. (1938) stated that "whether the water of an interstate stream must be apportioned between the two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive." What is the source of the authority to formulate a specialized federal common law—law that, unlike decisions rendered pursuant to Swift, binds state and federal courts alike?


Constitutional Provisions - To some extent, the source may be traced to specific constitutional provisions, such as the grant of admiralty and maritime jurisdiction in Article III, or the prohibition of unreasonable searches and seizures in the fourth amendment. (for example in Bivens v. Six Unknown Named Agents, which defined the existence of a damage remedy for a Fourth Amendment violation.) But the line between constitutional interpretation, on the one hand, and the exercise of common law authority, on the other, is indistinct, and there is often disagreement among both judges and commentators about the function the courts are performing. The significance of this disagreement is more than semantic, for the ability of the legislative branch to modify or reject a Supreme Court ruling is plainly more circumscribed if the ruling is seen to be required by the Constitution than if the ruling is a common law one authorized but not compelled by fundamental law as opposed to constitutional authority.

Federal Statute - In other instances, the source of judicial authority may

be found in a particular federal statute. For instance - Rule 501 of the Federal Rules of Evidence states that in certain cases questions of evidentiary privilege "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." This is the exception rather than the rule. More often, the legislative direction is, at best, implicit and the judicial role may be viewed as that of implementing federal legislative policy by filling the gaps left by the legislation itself. The line between statutory construction and the exercise of common law authority is not easily drawn.

The exercise of authority to formulate federal common law can be said to be based more on necessity than on any specific provision in the Constitution or in a statute. This is especially true because the courts of the United States are subservient to the concepts and obligations of federalism. As Supreme Court judge Robert Jackson stated in 1942 "Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes and is apparent from the terms of the Constitution itself." The scope then of common law application in the federal courts is specialized by necessity and in a few particular cases is specialized by discreet constitutional or statutory authority. Here are a few examples.

Interstate or International Disputes – Perhaps the most important constitutional category involves those interstate or international disputes that, in the words of the Supreme Court, "implicate conflicting rights of States or our foreign relations" (Texas Industries, Inc. v. Radcliff Materials, Inc., 1981). The existence of a conflict between the interests of two states may make it inappropriate for the law of either to govern of its own force. Controversies affecting U.S. government relations with foreign nations may also equire a single federal response rather than many responses rooted in varying state laws.


Rights, Obligations or Proprietary Interests of U.S. - Another exercise of common law authority embraces controversies involving the rights, obligations, or proprietary interests of the United States. In such controversies, especially those arising in the administration of nationwide programs, formulation of federal common law may be warranted by the need for uniform treatment of the activities of the federal government or, more modestly, for some degree of federal supervision of the application of state law to those activities. The authority of federal courts to create common law around maritime issues was illustrated in one of the cases in your reading - East River Steamship Corp. v. Transamerica Delaval, Inc. In East River the Court created the tort of maritime products liability.

Restraints on Federal Common Law The uncertain scope of the federal common law power underscores the need to recognize certain limitations that are anchored in federalism and the separation of powers.

State Rights as a Check on Supremacy of Federal Law - The first of these concerns focuses on the interests of the states in preserving a measure of autonomy on matters properly within their constitutional authority pursuant to the Tenth Amendment of the Constitution. The concern for federalism supports a presumption that state law ought not to be displaced in the absence of a clear legislative direction, a sharp conflict between the state law and federal program, or the existence of a uniquely federal interest requiring protection. To some extent, this presumption is supported by and reflected in the provision of the Rules of Decision Act that state laws shall constitute the rules of decision except where otherwise required by the Constitution or by federal treaty or statute.

Separation of Powers - The second concern—that of separation of

powers—springs from the belief that the primary responsibility for lawmaking should rest with the democratically elected representatives in the legislative branch. At a time when the common law function was seen in terms primarily of the application of established customs and usages, the concern for the proper separation and allocation of federal powers had less force than it does today, when there is more emphasis on the creative potential of the common law. Moreover, the separation of powers question is not unrelated to the regard for state interests, since the bicameral federal legislature is structured in such a way as to protect the states against action that might be taken by a legislature apportioned solely on the basis of population.

Legislative Intent – Another reason why the federal courts are hesitant to

develop a broader common law approach is that they would risk usurping a function that is properly legislative and not judicial under the Constitution. Recognizing this factor has led federal courts to emphasize legislative intent before a court ventures into articulating new rights or develop new remedies not specifically provided for by statute.


S T U D Y T A S K 3

The problems inherent in the exercise of common law power by federal courts have been highlighted in the Supreme Court's struggle with the question of implied remedies for federal constitutional or statutory violations. Since Bivens v. Six Unknown Named Agents (1971), the Court has generally been willing to allow a person harmed by unconstitutional action to sue for damages, despite the lack of any constitutional or statutory provision for suit. But persons harmed by violations of federal statutes have frequently been held unable to obtain relief in the absence of an express statutory remedy or strong evidence of legislative intent to permit such a remedy. So what should you remember about the common law and the federal courts.

Erie Doctrine— the issue of common law arises in cases of diversity jurisdiction when a state claim is being heard in federal court. The question to the court is whether to apply state law or federal law.

The federal court must apply substantive state law in diversity cases because:

o of the powers reserved to the States under the Constitution’s 10th Amendment.

o the Rules of Decision Act states “the law of the several states” shall be followed in federal diversity cases and implies that the default substantive law is the state law unless federal law is on point.

o The Supreme Court in Erie held that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law".

o Erie did not put an end to other types of federal common law. Permissible areas fall into two basic categories: areas where Congress has given the courts power to develop substantive law (such as admiralty and maritime law, antitrust, bankruptcy law, interstate commerce, and civil rights), and areas where a federal rule of decision is necessary to protect uniquely federal interests (e.g., a remedy for a violation of a constitutional right).

o State Courts are free to make common law.

When and why do U.S. federal court judges exercise their authority to make common law?

What are the limitations on this authority?


Semina r Top i c Topic: Comparative Analysis of U.S. and Australia Federal Systems For this week’s seminar please address the following statement and the questions that follow it. You may refer to the essay in your readings titled Common Law Within Three Federations, Mark Leeming, University of Sydney Law School Research paper No. 07/64 (Public Law Review, Vol. 18, No. 3, pp. 186-199, 2007)

a. Australia and the United States both have federal systems of government. The common law of Australia and the United States originated in England and still greatly resembles that body of common law. Well known processes, largely relating to the means by which independence of former colonies was achieved, led to the formation of individual, distinct bodies of law in each country. Australia would have more of a unitary national common law approach and the United States had what amounted to 50 sets of common law with the highest court of the land unable to establish a national common law by creating precedent which inferior courts must follow?

i. Identify the historic, constitutional or statutory reasons

why the highest courts in Australia and the United States adopted different approaches to the question of whether each court had authority to create a unitary general common law?

ii. What are the exceptions to the rule that there is no federal common law in the United States?

iii. Would it be fair to say that there is more similarity between the highest court of a U.S. state and the Australia High Court in terms of creating common law?

Part I - American Law - Sources and Nature

THE AMERICAN MIXTURE OF COMMON LAW AND CODE

4 T O P I C




1. The Federal Code and the Background of Common Law

2. The Background of the Common Law in the U.S. Constitution

3. The Development of Codes and Departures From Common Law



The Federal Codes and the Background of Common Law

The Common Law Foundation of U.S. Federal Law and State Law.

The Common Law Background of the U.S. Constitution

The Development of Codes and Departures From Common Law

Issues involved with statutory interpretation.




Presc r i bed Read ing Domino’s Pizza, Inc. v. McDonald

Preiser v. Rodriguez

Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989

Tennessee v. Garner

Collins v. City of Harker Heights

Li v. Yellow Cab Company

Note by K. George on Common Law Crimes and “Reception” Statutes


Seminar Topic Reading - Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology? The Georgetown Law Journal, Vol. 96, No. 6, 1863-1911 (2008) and Notes on Dynamic Interpretation, Abernathy, Law of the United States, p. 45-47.


42 USC Section 1981, 1983, 1988, 1989

Federal Rules of Civil Procedure http://www.law.cornell.edu/rules/frcp/

Uniform Commercial Code, http://www.law.cornell.edu/ucc/


I n t roduc t ion

In Topic 3, we explored the foundations for the common law in the U.S. at both the state and federal levels. Through the prism of the New York product liability cases we saw how the common law is alive and well in state courts particularly in areas like contracts and torts. At the federal level, we saw how the federal courts have specialized common law authority and through the Erie decision a respect for state court made common law despite the Supremacy Clause of the U.S. Constitution. In Topic 4 we will further explore the American legal system by analysing the relationship of the common law to the code based system of law enabled through the framework of the constitution. It may be helpful as you read through the material to consider Professor Charles Abernathy’s words about the relationship of statutory and common law.

Although law in the United States is a mixture of common law and code-based law, this does not mean that one can easily identify each part of the mixture. After flour and water are mixed and baked to make a cake, the flour and water can no longer be separately identified, and so it often is with the ingredients of American law. The two traditional sources of law have blended to produce something uniquely American, an American legal culture. (Abernathy, Law of the United States)

The Federa l Code and the Background o f Common Law

Before we go ahead and explore the court cases in your readings, let’s summarize the system of codifying laws in the United States. The United States Code is the codification by subject matter of the general and permanent laws of the United States based on what is printed in the Statutes at Large, i.e. laws as they are signed into effect. It is divided by broad subjects into 50 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. Since 1926, the United States Code has been published every six years. In between editions, annual cumulative supplements are published in order to present the most current information. It is available online at www.gpoaccess.gov/uscode/search.html.There are also other commercial U.S. Code products. Among these are the U.S.C.A. (U.S. Code Annotated) and the U.S.C.S. (U.S. Code Service). The U.S.C.A. and U.S.C.S. contain everything that is printed in the U.S. Code but also include annotations to case law relevant to the particular statute. While these publications may be more current, they are not the official version of the U.S. Code that is published by the Office of the Law Revision Counsel. The federal statutes are passed by the United States Congress and signed into law (or vetoed by non-signature) by the President. Some statutes are "codified", separately organized and published by subject matter in the U.S.C., while others


are not. According to Section 204 of Title 1 of the United States Code, of the 50 titles, only 23 have been enacted into positive (statutory) law. These titles are 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49. When a title of the Code was enacted into positive law, the text of the title became legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern. The U.S. Code (as well as State codes) is cited according to the following nomenclature – title USC section. For example, 1 U.S.C. 204 is designated Title 1, Section 204 of the United States Code. The designation of a particular title of the Code as "positive" or "non-positive" law usually has little practical significance, as there are very few substantive variances between the texts of statutes as published in the United States Code and the texts of the same statutes in the United States Statutes at Large. It is wise though when researching U.S. law to proof the code against the Statutes at Large especially for relatively new or obscure areas of law. The U.S. Code does not include regulations issued by executive branch agencies, decisions of the Federal courts, treaties, or laws enacted by State or local governments. Regulations issued by executive branch agencies are available in the Code of Federal Regulations, which are often given equal effect when they are promulgated under the colour of statutory authority. Proposed and recently adopted regulations are required to be published in the daily Federal Register. Each daily issue of the Federal Register is organized into four categories:

o Presidential Documents (executive orders and proclamations) o Rules and Regulations (policy statements and interpretations of rules by

federal agencies) o Proposed Rules (petitions by agencies for assistance in rulemaking and

other proposals) o Notices (scheduled hearings and meetings open to the public, grant

applications, and administrative orders) Courts are often asked to interpret what the intent is of a certain statute or regulation. The Federal Register can be an important source of information about the intent behind a regulation as the Congressional Record can be the ultimate source of information about congressional intent concerning a statute. The Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published daily when Congress is in session and has two versions – House of Representatives and Senate. The Congressional Record is similar to the Hansards that report parliamentary debates in Australia and some Pacific Island countries. The Common Law Foundation of U.S. Federal Law As we saw in Topic 3 there is no general federal common law, but the common law nevertheless penetrates into federal law in subtle ways. Domino’s Pizza and Preiser involve appeals to the U.S. Supreme Court and illustrate that the United States is a country that relies on both code-based law


and common law. It values the ability of the legislatures to create statutes, but also the ability of the courts to fine tune these statutes and to even apply them to fact situations that may not have been envisioned by the legislature. Note the transcripts of the oral arguments for many appeals before the U.S. Supreme Court are available at a web site established and maintained by the official courtroom reporter for the court. Reading the oral arguments an give a fuller appreciation for the arguments considered by the Court. Click here to view the site for Argument Transcripts. As you read Domino’s take a look at the oral argument to help you get a fuller flavour of the nature of the issues and the law as argued by the parties. (Domino’s Pizza – Oral Arguments – Transcript) Domino’s Pizza, Inc. v. McDonald Here is what happened leading up to the decision of the U.S. Supreme court in 2006.

o Domino's Pizza, a large nationwide company that delivers pizza’s to homes entered into several contracts with JWM Investments, a corporation.

o McDonald, an African-American, was an officer and the sole shareholder of the JWM Corporation.

o McDonald personally was not a party to the contracts. o McDonald sued Domino's pursuant to the Civil Rights Act of 1866 (42

U.S.C. Section 1981, claiming that Domino's terminated its contracts with JWM because of race.

42 USC Section 1981 provides that "All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." This statute, nearly 150 years old, was enacted after the U.S. civil war to give all citizens, regardless of race, the right to make and enforce contracts. McDonald claimed that Domino's had ended its contract because he was black, and that he therefore had a right to sue under the Civil Rights Act. Domino's moved to dismiss the case, arguing that McDonald had not been a party to the contract (it had been between Domino's and JWM) and therefore did not have standing to sue. The district court sided with Domino's, but the Ninth Circuit Court of Appeals reversed, finding that McDonald had suffered injuries separate from those of JWM and therefore had standing to sue. On review the U.S. Supreme Court granted certiorari to review the 9th Circuit decision on the following issue. May a person who is not a party to a contract but suffers personal injuries from its termination sue under 42 U.S.C. Section 1981, claiming that the contract was terminated because of race? The answer of the Court was no. In a unanimous decision the Court ruled that only an actual or would-be party to a contract may sue under Section 1981. Justice Antonio Scalia, writing for the Court, explained that if Section 1981 were not limited to the parties to the contract, it "would become a strange remedial provision designed to fight racial animus in all of its noxious forms, but only if the animus and the hurt it produced


were somehow connected to somebody's contract. We have never read the statute in this unbounded--or rather, peculiarly bounded--way." What do you think he means by this? Note on Section 1988 specifying common law remedies It is interesting how Congress felt it important to reference the common law when drafting Section 1981 of the Civil Rights Act of 1866 and other civil rights legislation. 42 USC 1988 authorizes the courts to reference the common law when interpreting the anti-discrimination protection referenced in Section 1981 of the Act. Read Section 1988 below. It says a lot about how statutory and common law are sometimes integrated in the United Sates.

Sec. 1988. Proceedings in vindication of civil rights

(a) Applicability of statutory and common law The jurisdiction in civil and criminal matters conferred on the District courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

Section 1981 (Civil Rights Act of 1866) was designed around contractual relationships and didn’t extend to discrimination outside the scope of employment or any other type of discrimination beyond racial discrimination. In 1964 the Congress passed legislation to cover a range of other forms of discrimination both inside and outside of the scope of employment. Title VII of the Act, codified as Subchapter VI of Chapter 21 of 42 U.S.C. § 2000e prohibits discrimination by covered employers on the basis of race, colour, religion, sex or national origin.. Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, colour, religion, sex, or national origin, i.e. beyond employment related rights. Section 1981 is important to contractors who the law would not deem an employee and therefore covered by Title VII. Determining who is an “employee” under Title VII and who is an “independent contractor” is a complicated task—so much so that many workers and even their employers cannot be sure which label applies. The statute defines those subject to its coverage in a circular fashion. An


employee is an “individual[s employed by an employer” according to Title VII. This leaves much open for interpretation and by necessity opens the opportunity for common law principles to be referenced by the courts. Courts have grappled with several tests for distinguishing covered from uncovered workers. A perfect opportunity for common law principles to be utilized? Not so? Until fairly recently, courts had split over whether to apply the “common law agency” test, which focused on the putative employer’s right to control the worker, or the more expansive “economic realities” test, which considered a wide range of factors tending to demonstrate a worker’s economic dependence on the putative employer. In 1992, the Supreme Court imposed the more restrictive common law agency test, ruling that this test should apply whenever statutes failed to define “employee” specifically, regardless of the statute’s purpose. In practice, courts applying the test have frequently characterized anti-discrimination plaintiffs as “independent contractors” and thus denied them coverage. Once a court finds an individual to be an independent contractor, its inquiry ends, no matter how patently discriminatory the alleged conduct or how well substantiated the claim of discrimination. Preiser v. Rodriguez, 411 U.S. 475 (1973) As you read Preiser also read about Section 1983 of the Civil Rights Act of 1871 (to the right) and the Federal Habeas Corpus Act, 28 U.S.C. 2241 (c) (3) and 28 U.S.C. 2254(b). Observe how the Law Revision Counsel Counsel annotates the U.S.C. with legislative history for the reference of the reader, e.g. amendments to the statute. The Respondents in Preiser were state prisoners who had elected to participate in a New York state program that gave them a conditional release from prison. Under the program the prisoners would earn up to ten days per month deducted from their sentence for good behaviour. The prison management cancelled the “good time credits” of the respondents for disciplinary reasons. Each respondent brought a civil rights action under 42 U.S.C. § 1983, in conjunction with a habeas corpus action, claiming that his credits were unconstitutionally cancelled and seeking their restoration. The case worked its way on appeal to the U.S. Supreme Court. The Court held that when a state prisoner challenges the fact or duration of his physical imprisonment and, by way of relief, seeks a determination that he is entitled to

Section 1983 Section 1983 was enacted in 1871 as part of the Civil Rights Act of 1871, and is also known as the "Ku Klux Klan Act" because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the racist organization known as the Ku Klux Klan. While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability. The number of cases that have been brought under section 1983 has dramatically increased since 1961 when the Supreme Court decided Monroe v. Pape. In Monroe, the Supreme Court held that a police officer was acting "under colour of state law" even though his actions violated state law. This was the first case in which the Supreme Court allowed liability to attach where a government official acted outside the scope of the authority granted to him by state law. Since Monroe v. Pape was decided, an extensive body of law has developed to govern section 1983 claims.


S T U D Y T A S K 1

immediate or speedier release, his sole federal remedy is a writ of habeas corpus. Would you agree that the decision was positioned around the following reasons? Although the broad language of Section 1983 seems literally to apply,

Congress' enactment of the specific federal habeas corpus statute, with its requirement that a state prisoner exhaust state remedies, was intended to provide the exclusive means of relief in this type of situation, i.e. a pleading that would require release from custody where only the conditions of confinement and term were at issue.

Because the relief requested of the court involves the conditions and term of imprisonment it had no choice but to reference Habeas Corpus as the specific and controlling statute.

Why does the Court in Preiser discuss the English law of Habeas Corpus if the issues at stake involve two U.S. statutes? Why do you feel this was relevant enough to be referenced in the decision?

If the Supreme Court was sending a signal that it wanted to leave a measure of common law to be applied in habeas corpus cases, why didn’t it affirm the lower court to allow the prisoners to challenge the civil rights questions under Section 1983 (as the dissent in Preiser seems to say)?

The key issue in Domino’s Pizza is whether McDonald and Domino’s had a contractual relationship that entitled McDonald to the protection of the statute. How important are common law principles to the court’s decision that there was not a contractual relationship? Is it true that the Court looked to the background principles of the common law to define the scope of a damage recovery namely that the common law requires a contractual relationship? Why do you think the Statute itself did not provide this guidance?

Common Law of Federal Crimes? There is generally no authority under the Constitution for the U.S. Supreme Court or federal judges to create a common law of federal crimes or to define criminal acts. Up until the Supreme Court cases of United States v. Hudson (1812) and United States v. Coolidge (1816) there was a good deal of controversy over the authority of a federal court to make common federal crimes. Indeed there were numerous examples of citizens being charged with common law crimes such as libellous sedition by federal government prosecutors. Then in 1812 a bare majority of the court, against all precedent, ruled that the question of whether the federal courts "can exercise a common law jurisdiction in criminal cases" has been "settled in public opinion," which opposed such jurisdiction. Moreover, the Constitution had not expressly delegated to the federal courts authority over common law crimes, reason the court. "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction


of the offense." In United States v. Coolidge (1816) the Court refused to review the 1812 decision in the absence of "solemn argument." Thus the question of authority to create federal common law crimes was resolved without written justification. Although "judge-made" or nonstatutory federal crimes disappeared after the Coolidge decision, federal courts continued to exercise common law powers to enforce law and order (e.g. contempt power) and employ a variety of common law techniques, forms, and writs in the enforcement of congressionally defined crimes. The Federal Rules of Criminal Procedure, see http://www.law.cornell.edu/rules/frcrmp/, reflect this authority. By its "supervisory powers" over lower federal courts and, through them, over federal law enforcement officers, the Supreme Court can still be said, loosely, to exercise an interstitial common law authority with respect to federal crimes. What is even more relevant to American Jurisprudence than the question of the non-existence of federal common law crimes is the reality of the “reception” of common law crimes by state courts and legislatures. Read the note about Common Law “Reception” by States Statutory Interpretation and Stare Decisis The American legal system may use common law in several ways, even when statutes otherwise seemingly controllable.

o The statute may use ideas from the common law adopting the principles of that law.

o A statute may present an ambiguity that needs interpretation by courts and

this could involve a succession of interpretations involving many courts resembling the development of common law.

o The courts’ evolving interpretation of the law may provoke legislation to

change the law to reflect changed circumstances. All of these outcomes may result in a situation where courts much decide whether a previous court’s statutory interpretation is correct. The case of Patterson v. McLean Credit Union is a case in point. Patterson v. McLean Credit Union, 491 U.S. 164 (1989) Paterson was an African-American women employed by the respondent, a banking institution, as a teller and file coordinator for 10 years until she was laid off. Thereafter, she brought an action in District Court under 42 U.S.C. § 1981, alleging that respondent had harassed her, failed to promote her to accounting clerk, and then discharged her, all because of her race. The District Court determined that a claim for racial harassment is not actionable under § 1981, and declined to submit that part of the case to the jury. The court instructed the jury, inter alia, that, in order to prevail on her promotion discrimination claim, petitioner had to prove that she was better qualified than the white employee who allegedly had received the promotion. The jury found for respondent on this


S T U D Y T A S K 2

claim, as well as on petitioner's discriminatory discharge claim. The Court of Appeals affirmed the judgment in favor of Patterson. The Supreme Court stated that stare decisis compelled it to respect its decision in a 1976 decision in Runyon v. McCrary, 427 U. S. 160, that Section 1981 prohibits racial discrimination in the making and enforcement of private contracts. It had to respect stare decisis, said the Court, absent some "special justification" not to do so. The burden borne by a party advocating the abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction, which, unlike constitutional interpretation, may be altered by Congress. What did the Court find in terms of honouring its decision of Runyon? The Court held that no special justification has been shown for overruling Runyon, which has not been countered by changes in the law and has not otherwise created obstacles to fulfilling the legislative intent of the statue.

What was the theory and the facts the Court in Patterson applied in support of not deviating from Runyan because of Stare Decisis? How did the Court distinguish Section 1981 from other civil rights statutes to find that possibly discriminatory harassment of Patterson by her employer was not protected by Section 1981? What is a Reception Statute? Why would some states have Reception Statutes and some not?

Const i tu t ion and the Background o f Common Law

Tennessee v. Garner, 471 U.S. 1 (1985) Garner, who was not armed or otherwise dangerous, was shot while fleeing a robbery when he was shot by a police officer after being warned to stop and surrender. Garner's father then brought suit in the United States District Court under the Civil Rights Act of 1871, 42 U.S.C. Section 1983, naming the City of Memphis, its mayor, the Memphis Police Department, its director, and the police officer as defendants. The Supreme Court, first agreeing with the Sixth Circuit's determination that apprehension by use of deadly force is a seizure, then framed the legal issue as whether the totality of the circumstances justified the seizure. In order to


determine the constitutionality of a seizure, the Court reasoned, the court must weigh the nature of the intrusion of the suspect's Fourth Amendment rights against the government interests which justified the intrusion. It said that the use of deadly force against a subject is the most intrusive type of seizure possible, because it deprives the suspect of his life, and the Court held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect's interest in his own survival. What was interesting about this case is the examination of the common law by the Court. At common law in the United States, it was perfectly legitimate for law enforcement personnel to kill a fleeing felon. At the time when this rule was first created, most felonies were punishable by death, and the difference between felonies and misdemeanours was relatively large. In modern American law, neither of these circumstances existed. Furthermore, the common law rule developed at a time before modern firearms, and most law enforcement officers did not carry handguns. The context in which the common law rule evolved was no longer valid as a principle to be weighed in determining the nature of the constitutional protection. Collins v. City of Harker Heights, 112 S.CT. 1061 (1992) This 1992 case helps to clarify further the scope of Section 1983 liability actions and the interaction of common law and constitutional law. The widow of a person who worked as a cleaner employed by the City of Harker Heights claimed that her husband died of asphyxia after entering a sewer because the city had failed to train or warn its workers of known risks associated with such work. She argued that such oversight deprived her husband of “life” without “due process of law.’ The Supreme Court ruled that “the city is not liable under Section 1983 for the constitutional torts of its agents. It is only liable when it can be fairly said that the city itself is the wrongdoer. So under state common law of respondeat superior an employer may be liable for the tort of failing to inform a person about a known risk, but this didn’t satisfy Section’s 1983 requirement that there be an actual deprivation of constitutional rights. The possibility that a government might have liability in tort did not satisfy the requirement Section 1983 provides a remedy against "any person" who, under colour of state law, deprives another of rights protected by the Constitution. Governmental conduct that involves a common law tort, absent a violation of a constitutional right, does not support a Section 1983 action reasoned the Court in Collins. .

The De ve lopm ent o f Code s a nd Depar tures f rom Common La w The overwhelming trend in the United States at the national and state levels has been the codification of laws. One would think that judge made common law would have withered on the vine with all of this codification. While codified legislative-made law has surely grown there are still large swaths of “common law” particularly at the state level in the area of contracts and torts. Even where the legislatures have created “new law” or taken common law and restated it in civil or criminal code there is an essential common law foundation in U.S. law.


Indeed, it can be argued that a new type of “common law” has developed that combines the attributes of codified, common law, and precedent, that is pulled together in reasoned thought not by judges, but by legal scholars. Examples include the Federal Rules of Evidence, the Federal Rules of Civil Procedure, the Restatements of Law and the Uniform Commercial Codes. These bodies of procedures and laws do not have their origins in the courtroom or the legislative chambers, but are created by legal scholars (later endorsed by congress or the legislative The Uniform Commercial Code (UCC or the Code) is found online at http://www.law.cornell.edu/ucc/. It is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States. This objective is deemed important because of the prevalence of commercial transactions that extend beyond one state (for example, where the goods are manufactured in state A, warehoused in state B, sold from state C and delivered in state D). The UCC deals primarily with transactions involving personal property (movable property), not real property (immovable property). The UCC is the longest and most elaborate of the uniform acts. It has been a long-term, joint project of the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI). The Code, as the product of private organizations, is not itself the law, but only recommendation of the laws that should be adopted in the states. Once enacted in a state by the state's legislature, it becomes true law and is codified into the state’s code of statutes. When the Code is adopted by a state, it may be adopted verbatim as written by ALI and NCCUSL, or may be adopted with specific changes deemed necessary by the state legislature. Unless such changes are minor, they can affect the purpose of the Code in promoting uniformity of law among the various states. There is therefore considerable pressure on States not to substantially modify the UCC as it is adopted as State law. Could it be argued that the UCC is a source of law that is more similar in its formation to the common law? Why? The case of Li v. Yellow Cab, below, illustrates how the California State Supreme Court interpreted a one hundred year older statute to give it authority to arguably utilize its common law authority to change the application of a statute. Li v. Yellow Cab Company of California, As a matter of public policy, the doctrine of comparative negligence is preferable to an “all or nothing” rule from the point of view of logic, practical experience and fundamental justice. That is the premise relied upon by the highest court of the State of California in Li v. Yellow Cab. This case demonstrates how a court may overrule a long-standing legislative precedent involving the doctrine of contributory negligence. In this case, a more than one-hundred year statute stated specifically that “contributory negligence” was the standard to be applied in tort actions. The court reasoned that doctrine of contributory negligence is inequitable in its operation because it fails to distribute


S T U D Y T A S K 3

responsibility in proportion to fault. It cited twenty-five state legislatures that had abrogated the “all or nothing” rule of contributory negligence and enacted statutes calculated to assess liability in proportion to fault. It also cited the State of Florida, where the same result was affected by judicial decision.

Know the facts and holdings in Tennessee v. Garner and Collins v. City of Harker Heights and how common law was referenced in each.

What was the significance of Li v. Yellow Cab?

In Tennessee v. Garner, the police officers tried to persuade the court to interpret “reasonableness” by adopting the common law rule used when the Constitution was adopted. Why does the court appear to refuse? Is it possible to argue that the Court actually adopted the common law’s doctrine and values even though it did not adopt the specific common law rule?


Did the drafters of the California Code provision on contributory negligence mean it to restate common law and actually adopt the common law doctrine on contributory negligence? Or did the legislature intend to adopt not the rules or doctrines, but the process of common law as reasoned by the California Supreme Court in Li?

Should a court have the power in the U.S or any other jurisdiction to use the common law to overturn undesirable or outmoded statutes and give them updated and modern interpretations. Why or why not?

The American legal system, at the state or federal level, may use common law in several ways, even when statutes are otherwise seemingly controllable. What are these ways?

Semina r Top i c Topic: Stare Decisis and Statutory Interpretation in the U.S. and Pacific

a. Please read the law review article by Sydney Foster, below, and be prepared to discuss the premise that courts should give doctrines of statutory interpretation stronger stare decisis effect than their substantive law counterparts.


i. Reading - Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology? The Georgetown Law Journal, Vol. 96, No. 6, 1863-1911 (2008)

1. What is the status in the United States of the doctrine of stare decisis in respect to substantive law and statutory interpretation?

2. Why should there be any controversy over the doctrine and the weight to be given to it in respect to statutory interpretation.

3. Read the “Dynamic Interpretation” note in Abernathy, Law in the United State, p. 45-47. Could the “Dynamic Interpretation” approach survive if Foster’s premise was adopted in federal or state courts?

4. Do you feel that the court in Li v. Yellow Cab would have arrived at the same holding if there was a stare decisis effect to statutory interpretation methodology?

5. How is stare decisis applied to statutory interpretation in your home jurisdiction? Does a “dynamic approach” utilized by your courts?

6. Is Foster’s premise valid from the perspective of the U.S. legal system? Is it relevant for your home jurisdiction? Why or why not?

Part 2 - Constitutional Law and the Division of Governmental Power

FEDERAL JUDICIAL POWER— THE SUPREME COURT

AND THE CONSTITUTION

5 T O P I C


Study Time 7 hours

Top ic Ou t l i ne 1. Judicial Review of Constitutional Issues: The

Constitution as‘‘Law”

2. Limitations on Judicial Review: The Political Question Doctrine

3. Other Constitutional and Policy Limitations on Judicial Review



Present the basic facts of Marbury v. Madison and place it in its historical context.

Evaluate arguments for and against the power of judicial review.

Understand that judicial review is crucial to the U.S. system of checks and balances. (

Explain the lasting impact of Marbury v. Madison. (See Brown v. Board of Education, Bush v. Gore)




Presc r i bed Read ing Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803)

Martin v. Hunter’s Lessee, 14 U.S. 304, 4 L.Ed. 97 (1816)

Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.1362, 12 L.Ed.2d 506 (1964)


Cohens v. State of Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821)


You may also wish to read or browse through the U.S. Supreme Court’s Rules of Procedure at http://www.law.cornell.edu/rules/supct/ .

Brown v. Board of Education

Bush v. Gore

Powell v. McCormick

I n t r oduc t i on

Before a court can review government action on its constitutional merits, the court must have the power to hear the case. Even when a court has technical jurisdiction to decide a case, there are various policies and principles whereby a final decision can be avoided, at least temporarily. This topic deals with the jurisdiction of the federal courts, including the power of judicial review, and the constitutional, congressional and self-imposed limitations on the exercise of that judicial power. We will start by examining the case of Marbury v. Madison that early in the nation’s history examined the judiciary’s power under the Constitution in relation to the other branches of government and its authority to interpret and enforce its interpretation of the Constitution. As you wade through the case, also make sure that you read again the parts of the Constitution that are referenced by Chief Justice Marshall. Try to imagine what political and societal influences were perhaps influencing the case decided more than two hundred years ago and just fifteen years after the U.S. Constitution was ratified in 1788. It is important to remember that before the ratification became effective the U.S. was governed by its first Constitution, the Articles of Confederacy, which had no provision for a judiciary. Analysis and commentary is provided are meant to clarify the extensive reading material for this topic, but is not a substitute for reading that primary material.

Jud ic ia l Rev iew o f Const i tu t iona l I ssues : The Cons t i tu t ion as ‘ ‘La w” Original jurisdiction - Nearly all of the cases considered by the U.S. Supreme Court come to it from other courts (Federal or state) on appeal -- or more accurately via petitions for a "writ of certiorari." However, under the U.S. Constitution (Article III, Section 2), the Supreme Court has "original jurisdiction" over several small but important categories of cases. That means, quite literally, that the parties can bring such disputes directly to the Supreme Court. The categories are defined in terms of who the parties are. The original jurisdiction of the Court is laid out by statute in 28 U.S.C. § 1251. Section 1251(a) provides that with one type of dispute (disputes between states), the Court's jurisdiction is not only "original," it is exclusive. In other words, if the


parties cannot settle the matter, no other court but the Supreme Court has authority, under the Constitution, to take jurisdiction. Rule 17 of the Supreme Court rules governs actions based on the Court's original jurisdiction. Relatively few original jurisdiction cases come to the Court. In recent times there have been one or two a year. The Court's practice in these cases is to appoint a "Master" to hear the evidence, determine facts, and recommend a decision. This allows the Court to deal with the dispute very much like it does with those that come to it on appeal, for it puts the Court in the posture of reviewing the Master's findings and recommendations in the light of legal arguments made by the opposing parties. You may read the U.S. Supreme Court’s Rules of Procedure at http://www.law.cornell.edu/rules/supct/ . Typically, the disputes between states coming to the Court involve conflicting property claims. Two recent examples include Louisiana v. Mississippi (October 1995) and Nebraska v. Wyoming (May 1995). Appellate Jurisdiction In all cases that Article III gives the Supreme Court subject matter jurisdiction that do not involve a state or an ambassador, other public ministers and consuls, the Supreme Court may only exercise appellate jurisdiction. However, Congress is given the power to make exceptions to what kinds of cases can be appealed to the Supreme Court. The only caveat to Congress' power is that it cannot so limit the appeals process that the Supreme Court would never be able to hear a case which falls into one of the categories defined within Article III. The reasoning behind this is that if Congress could make such a limitation, it would effectively be amending the Constitution without ever going through the amendment process in Article V. The Constitution only explicitly gives the Supreme Court appellate jurisdiction over cases originating in the lower federal courts; it does not explicitly give appellate jurisdiction to cases originating in the state courts. The decision in Martin v. Hunter's Lessee (1816), which we will read in this Topic, laid the groundwork for Supreme Court review of state court decisions. This review was initially limited to decisions that either invalidated a federal law or upheld a state law against a claim based on the Constitution. It was not until after a 1914 amendment to the judiciary act that the Supreme Court's appellate jurisdiction was legislatively extended to any case where the validity of a federal law is called into question or where a state law is claimed to be repugnant to the Constitution. Currently, the Supreme Court hears appeals at its own discretion. This is a modern change to the appellate process, which once dictated that the Supreme Court had to hear certain categories of cases. Marbury v. Madison Marbury v. Madison is best understood against the background of the election of 1800, in which Democratic-Republican Thomas Jefferson defeated the incumbent


Federalist president, John Adams, and Jefferson's Democratic-Republican party gained control of Congress. Since Jefferson was not inaugurated into office until March 4, 1801, the Congress that met in December 1800 was still dominated by Adams's Federalists. Adams appointed John Marshall as Secretary of the State, and later as Chief Justice of the United States when that position became vacant. On February 27, 1801, just days before Jefferson was to take office, Congress passed The Judiciary Act of 1801 which provided Adams with the opportunity to appoint 42 justices of the peace to five-year terms in Washington and Alexandria. Most of Adams's nominations went to deserving Federalists, and all were confirmed by the Senate. William Marbury was one of those appointed. The judicial commissions were signed by Adams, and the seal of the United States affixed, on March 3rd. Consequently, these appointees became known as the "Midnight Judges." John Marshall, as Secretary of State, was responsible for delivering the commissions. Marshall failed to deliver all of the commissions, but assumed his successor would finish the job. However, when Jefferson became President, he ordered his new Secretary of State, James Madison, not to deliver some of the commissions because he did not want members of the opposing political party to take office. Those individuals could not take office until they actually had their commissions in hand. William Marbury, whom Adams had appointed as justice of the peace of the District of Columbia, was one of these last-minute appointees who did not receive his commission. Marbury sued James Madison and asked the Supreme Court of the United States to issue a writ of mandamus, a court order that requires an official to perform or refrain from performing a certain duty. In this case the writ would have ordered Madison to deliver the commission. Marbury argued that he was entitled to his commission and that The Judiciary Act of 1789 gave the Supreme Court of the United States original jurisdiction to issue a writ of mandamus. Madison disagreed. When the case came before the Court, John Marshall - the person who had failed to deliver the commission in the first place - was the new Chief Justice. Marbury contended that (1) the Court had the jurisdiction to rule on such a matter; (2) Madison violated federal statutory and constitutional rules by withholding the commission; and (3) the mandamus was an appropriate remedy. The issues presented to the court and the courts respective holdings were:

1. Under the Constitutional law is it appropriate for the Supreme Court to adjudicate whether a federal commission to serve as a justice of the peace could stand under a new political term?

2. Under constitutional law, does the new political term's officer’s action of denying a confirmed appointment under the previous term violate any statutes or rules?

3. Under constitutional law, is a writ of mandamus an appropriate means to compel the Court to grant a confirmation by a previous President?

In a nutshell the Supreme Court declared that:


1. Marbury is entitled to the commission, but: 2. The Court cannot issue the writ because the Judiciary Act of 1789, which

granted the Supreme Court original jurisdiction to issue writs of mandamus, is unconstitutional.

3. The Supreme Court of the United States has the power to review acts of other branches and determine their constitutionality (judicial review).

The Court considered and decided the following issues: 1. Does Marbury have a right to the commission he demands? Since Marbury's commission was signed by the President, and sealed by the secretary of state, he was, in fact, appointed. 2. If he has a right, and that right has been violated, should the Court grant a remedy?

PRIMARY SOURCES IN MARBURY Judiciary Act of 1789, Section (§) 13 FIRST CONGRESS. SESS. I. C H. 20. 1789 CHAP. XX– An Act to establish the Judicial Courts of the United States SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. And the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter specially provided for and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States. Article III of the U.S. Constitution Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.


Marbury's appointment conferred on him a legal right as justice of the peace of the District of Columbia for a term of five years. Therefore, withholding Marbury's commission violates such legal right, for which the laws of the country afford him a remedy. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." 3. Is asking the Supreme Court for a writ of mandamus the correct legal remedy? The court reasoned that determining whether Marbury is entitled to the remedy for which he applied depends on the nature of the writ applied for and the power of the Court to issue the writ. The writ would be directed to an officer of government mandating him to perform an act related to his office and duty and which the court previously determined or at least supposes to be right and just. Therefore, the main issue is whether the writ can issue from the Supreme Court of the United States. The Judiciary Act of 1789 clearly authorized the Supreme Court to issue a writ of mandamus to such an officer. In order to deny the issuance of such writ, the Judiciary Act of 1789 must be declared unconstitutional. In Article 3, the Constitution declares that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction." In order for the Supreme Court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Therefore, the authority given to the supreme court by the Judiciary Act of 1789 to issue writs of mandamus to public officers appears not be warranted by the constitution. An act of congress that is repugnant to the constitution cannot become a law. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each" ruled the Court. The Impact of Marbury Interestingly, the writers of the Constitution did not determine which of the three branches of government would be the final arbiter of Constitutional issues, and that was the conundrum faced by the Court. Marbury v. Madison firmly established that the Supreme Court of the United States has the power to determine the constitutionality and validity of the acts of the other two branches of government – a concept that is a fundamental characteristic of American government. In declaring for the first time an act of Congress to be unconstitutional the decision created the doctrine of judicial review and set up the Supreme Court of the United States as chief interpreter of the Constitution. Historians say that the genius of Chief Justice John Marshall's decision is that it established the Judiciary's power to review the acts of the Legislative and Executive branches and declare them unconstitutional without creating a


constitutional crisis at the time. The Supreme Court's first decision declaring an act of Congress unconstitutional was palatable because it did two things. In it, the Court recognized that Congress gives the Judiciary certain powers and, at the same time, the Court reined in some of its own authority. In writing the opinion, Chief Justice Marshall avoided the political strife between the Federalists and the Democratic-Republicans. Marshall was able to hold that Marbury was entitled to his commission, and that the Jeffersonians were wrongfully denying him his judgeship, while at the same time claiming he was unable to order Madison to deliver the commission (an order which Jefferson almost certainly would have directed Madison to disobey), and used the opportunity to acquire the vastly more important power of judicial review. It can be said that the Chief Justice was not only an eloquent interpreter of the law and a shrewd political strategist, but that he had a vision that fully embraced a strong and independent Judiciary that would be the ultimate check on executive and congressional overreaching of power. By initially exercising judicial review with a case that recognized the power of Congress and limited the power of the Court, Chief Justice Marshall effectively established the Supreme Court – not Congress – as the ultimate Constitutional authority without triggering what could have been destructive opposition from the Legislative and Executive branches. This skillful handling of a politically charged situation established the Judiciary as an independent, co-equal branch of government. Since Marbury v. Madison, the Supreme Court has relied heavily on the precedent set by this case to ensure that government acts comply with the United States Constitution. The decision set the stage for pivotal decisions in every century since it was handed down by the Court. Historians say that Marbury v. Madison influenced the Court’s decision Brown v. Board of Education and Bush v. Gore, two relatively recent cases and a myriad of issues that have an impact on daily life in the United States. In summary then, Marbury established five principles which serve as cornerstones of the modern federal judiciary in the United States.

1. The Federal Judiciary has the power to review actions of the executive branch. The court could issue a writ of mandamus to force the executive to enforce the laws of the union, because that is the central role of the executive, but such a writ may only be issued in cases where the court has original jurisdiction. 2. The Court announced that there exists a category of issues, known as "political questions", over which the court does not have jurisdiction. Political questions are those issues over which the other branches of government have discretionary power, ones where an individual's right is not at stake. 3. Article III established the absolute boundary of the court's judicial power. Any issues that lie beyond the scope of Article III are not justiciable. The court used this determination to declare that it did not have the power to hear the Marbury case. The Judiciary Act of 1789 seemed to grant the Supreme Court original jurisdiction in cases involving


mandamus, which goes beyond the boundaries of original jurisdiction in Article III. Congress, therefore, could not enlarge the Court's jurisdiction beyond the Article III boundaries. 4. Federal courts had the power to declare federal statutes unconstitutional. While this power is not definitively set forth within the Constitution, Marshall reasoned that the limits placed on the federal government by the Constitution were meaningless if each government body was to determine the scope of its own powers. The federal courts, therefore, held the responsibility of determining the outcome when federal laws conflict with the Constitution. 5. Federal courts are established as the authoritative interpreter of the Constitution. While each branch of government interprets the Constitution in carrying out its duties, the court makes the final decisions in issues where conflicts arise and it has the power to hear the case.

Constitutional Review, Federalism and Supremacy Martin v. Hunter’s Lessee did for judicial review of state court decisions what Marbury v. Madison did for judicial review of federal government actions. Martin v. Hunter's Lessee was decided on March 20, 1816, thirteen years after Marbury v. Madison. Chief Justice Marshall still presided over the Supreme Court, but Marshall instead recused himself from the case for financial reasons because he and his brother had signed a contract with Martin to buy the land in dispute.. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law. In Martin v. Hunter’s Lessee, David Hunter was granted 800 acres of confiscated lands that had been willed to Denny Martin Fairfax, a British subject. Fairfax brought suit against Hunter for return of the land. On Fairfax's death the suit was taken over by his heir, Philip Martin. Martin argued that Fairfax's ownership had been protected by treaties between the United States and Great Britain guaranteeing British subjects the right to hold land in America. The Virginia court of appeals upheld the grant to Hunter, but on appeal the U.S. Supreme Court voided the grant in 1813. The Virginia court refused to obey the Supreme Court ruling, declaring that it had no right to review the decisions of state courts under the U.S. Constitution. When the case again came before the Supreme Court, Justice Story ruled that section 25 of the Judiciary Act of 1789, which granted the U.S. Supreme Court appellate jurisdiction over state courts in certain situations (as in this case, where a state court denied the validity of a federal statute), was constitutional. His decision affirmed the Supreme Court's right to review state court decisions. Departures from Marbury’s Rationale and the Rise of Case Law Harper v. Virginia State Board of Elections Harper, decided in 1966, involves an appeal filed by Virginia resident Annie E. Harper, who was unable to register to vote without having to pay a poll tax of $1.50, a flat tax payed by each individual. She brought the suit on behalf of other


poor residents and herself. After being dismissed by a U.S. district court, the case went on appeal to the United States Supreme Court. The Court ruled in favor of Ms. Harper. The Court noted that “a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.” In the midst of the civil rights movement, the Supreme Court stated that wealth cannot serve as a barrier to the right to vote. The decision came two years after the Twenty-Fourth Amendment had banned poll taxes in federal elections. The Court struck down the poll tax in Virginia state elections. The Court found that a "State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth", said the court.

The Equal Protection Clause Amendment XIV, Section 1, of the Constitution is known as the Equal Protection Clause. It states;

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race or gender. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights..


S T U D Y T A S K 1

The Articles of Confederation, the U.S.’s first ‘constitution” contained no authority for a national judiciary. How do you think that historical and political fact may have influenced the court in Marbury? What does Chief Justice John Marshall, who delivered the decision in Marbury v Madison, mean when he stated, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." How did Justice Story in Martin v. Hunter’s Lessee confront the argument of the Virginia Supreme Court that Federal Judicial power came from the states, and therefore that the Supreme Court had no right to overrule a state's interpretation of the treaty without its consent. Outline the two prime reasons referenced by Story. Distinguish the rationale of the Court in Marbury v. Madison and Harper v. Virginia State Board of Elections. Recall that the Court rested its power in Marbury on the idea that the American Constitution was written, and hence was judicially enforceable because judges could read it as law. Would it be fair to say that Justice Douglas, writing for the majority in Harper departs from this original idea in Marbury? Why or why not. Professor Charles Abernathy, in Law in the United States, page 155, states that the Marbury decision was based on the idea that ordinary law might change, but that constitutional law should be more permanent, more enduring through the years of a nation's growth. If the Constitution is permanent, how can it change over time so that an unchanged statutory law, previously conceded to be constitutional, later becomes unconstitutional? Fast forward to 2001 and the case of Rogers v. Tennessee, 532 U.S. 451, Rogers shot a man, who died over a year later, and was convicted of murder. He appealed on the ground that state law did not permit murder charges when the victim dies so long after the shooting, but the state court overruled its precedents that had taken this position. Rogers then appealed to the U.S. Supreme Court, arguing that the state had violated the federal Constitution (prohibiting Ex Post Facto crimes) by retroactively making his conduct a crime. Justice O'Connor's majority opinion rejected his argument as "an unworkable restraint on normal judicial processes." She noted that failure to permit judges this power to revise the law "would be incompatible with the resolution of uncertainty that marks any evolving judicial system .... In the context of common law doctrines ... , there often arises the need to clarify or even to re-evaluate prior opinions as new circumstances and fact patterns present themselves. It appears in Rogers that the Court is emphasizing case law and even common law rather than finding the meaning of the Constitution by the letter of the written words. Do you think that in some instances the Marbury approach of finding all the law in the Constitution is


the best way to protect constitutional rights or does a Davis reliance on an evolving constitution seem more defensible? The power to overturn a statute that was exhibited by the Court in Marbury was used in the Dred Scott case that you read in Topic 1. In that case the Court overturned a statute limiting the spread of slavery and held that African-Americans, whether slave or ex-slave, were not American citizens. Arguably the power of the court to overturn that legislation ignited the American Civil War (l861-65). Take a look at the Dred Scott case again. Do you think Chief Justice Marshall would have made the same ruling if he was CJ at the time Dred Scott was decided? Why?

L im i ta t ions on Jud ic ia l Rev iew: The Po l i t i c a l Que s t ion Doct r ine

The origina1 Marbury opinion suggested that some cases may involve "questions in their nature political," and it assumed that such cases could not be decided by the federal courts. This idea from Marbury has led courts to create the "political question doctrine." When the doctrine applies, cases are said to be “nonjusticiable," that is, not appropriate for a judicial determination. What makes a case "nonjusticiable"? What makes a question "political" as that word is used in the political question doctrine?

‘‘Structural’’ and ‘‘Organic’’ Constitutional Law

Baker v. Carr - Political questions are non-justiciable. To confuse things a bit – perhaps as lawyers and judges are better skilled than others at doing - political questions are not questions dealing with political subjects. In defining what questions are political, the Court in Baker v. Carr (1962) provided criteria, reflecting classic, functional, and prudential considerations. The Court has generally limited the doctrine to cases involving the federal court's role vis-à-vis co-equal branches rather than cases involving state power but it has been suggested as applicable to constitutional cases generally.

1) C1assic Doctrine

If the issue has been committed by the Constitution to the discretion of another government decision maker, federal courts will treat it as a political question. But whether the issue is constitutionally committed to a particular branch is itself a judicial question. Only the manner in which discretion is exercised is inappropriate for federal review.

2) Functional Considerations

A question may be labelled "political" because the Court determines that the judicial branch lacks the resources and capabilities for resolving it. For example, there may be "a lack of judicial1y discoverable and manageable standards for resolving [the question]" or "the impossibility


of deciding without an initial policy determination of a kind clearly for nonjudicial discretion", e.g., foreign affairs issues.

3) Prudential Considerations

Constitutional issues may also be labelled political because of prudential or policy considerations relating to the proper use of the judicial power. For example, Baker v. Carr, noted as relevant: "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government" or "an unusual need for unquestioning adherence to a political decision already made" or "the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

The following are examples that may help clarify what is and what is not a political question.

(1) As we saw in Baker v. Carr, the question of whether a state legislative appointment satisfies equal protection is not a political question since it does not involve separation of powers concerns and equal protection standards for decisions are available.

(2) The question of the constitutionality of the House of Representatives' refusal to seat an Adam Clayton Powell, an African American in the 1960s, was held justiciable. The Supreme Court determined that Art. I, § 5, making each House "the Judge of the • • • Qualifications of its own members," is limited to the qualifications specified in the Constitution, i.e., age, citizenship, and state residence, and therefore was a Constitutional Issue. Powell v. McCormack (1969)

(3) Questions concerning the duration for state ratification of a constitutional amendment and whether a state can withdraw a prior ratification appear to be left to Congress by Art. V. These questions are non-justiciable. Coleman v. Miller (1939).

(4) The ability of a grand jury to subpoena documents in the possession of the President against a claim of executive privilege for confidential communications does not present a political question at least apart from a claim based on national security and/or foreign affairs. United States v. Nixon (1974).

(5) A plurality of the Court would treat the question of a President's power to unilaterally terminate a treaty as a political question since no constitutional provision directly controls the issues, the political branches have adequate resources to decide the issue, and the issue involves foreign affairs. Goldwater v. Carter (1979).

Adequate and Independent State Grounds

Where a judgment of a state court rests on two substantive grounds, one involving a federal question and the other an adequate and independent state


ground, the Supreme Court will not take jurisdiction even though the state court may have erroneously decided the federal constitutional question. Failure to adhere to fair and reasonable state procedural rules can also result in Supreme Court dismissal of an appeal from a state court. Such failure would provide an adequate and independent state ground for the decision. But the state procedural rule must advance substantial state interests and must not unnecessarily impair decision of the federal constitutional question.

Political Power and the Political Question Doctrine

Reynolds v. Sims (1964), in your reading, is the United States Supreme Court case ruling that state legislature districts had to be roughly equal in population.

Voters from Jefferson County, in the State of Alabama, had challenged the apportionment of the Alabama Legislature. The Alabama Constitution provided that there must be at least one representative per county and as many senatorial districts as there were senators. Ratio variances as great as 41 to 1 from one senatorial district to another existed in the Alabama Senate (i.e., the number of eligible voters voting for one senator was in one case 41 times the number of voters in another).

Having already overturned an earlier ruling that redistricting was a purely political question in Baker v. Carr, the Court in Reynolds went further in order to correct what seemed to it to be egregious examples of mal-apportionment which were serious enough to undermine the premises underlying republican government. Before Reynolds, urban counties were often drastically underrepresented perhaps benefiting political parties with a more conservative, rural base. Among the more egregious pre-Reynolds disparities were the following examples that were surveyed by a U.S. Congressman (Congressman Morris Udall) and described in his report to his constituents.

o In the Connecticut General Assembly, one House district had 191 people; another, 81,000 (424 times more).

o In the New Hampshire General Court, one township with three people had a Representative in the lower house; this was the same representation given another district with a population of 3,244. The vote of a resident of the first township was therefore 1,081 times more powerful at the Capitol.

o In the Utah State Legislature, the smallest district had 165 people, the largest 32,380 (196 times the population of the other).

o In the Vermont General Assembly, the smallest district had 36 people, the largest 35,000, a ratio of almost 1,000 to 1.

o Los Angeles County, California, with 6 million people, had one member in the California State Senate, as did the 14,000 people of one rural county (428 times more).

o In the Idaho Legislature, the smallest Senate district had 951 people; the largest, 93,400 (97 times more).

o In the Nevada Senate, 17 members represented as many as 127,000 or as few as 568 people, a ratio of 224 to 1.


The eight justices who struck down state senate inequality based their decision on the principle of "one person, one vote". In his majority decision, Chief Justice Earl Warren said "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests." In dissent, Justice John Marshall Harlan II lambasted the Court for ignoring the original intention of the Equal Protection Clause, which he argued did not extend to voting rights. Harlan claimed the Court was imposing its own idea of "good government" on the states, stifling creativity and violating federalism. Although the Constitution explicitly grants two senators per state, regardless of population, Harlan further claimed that if Reynolds was correct, then the United States Constitution's own provision for two United States Senators from each state would then be Constitutionally suspect as the fifty states have anything but "substantially equal populations." Reynolds v. Sims set off a legislative firestorm in the country. Senator Everett Dirksen of Illinois led a fight to pass a Constitutional amendment allowing unequal legislative districts. He warned that "...the forces of our national life are not brought to bear on public questions solely in proportion to the weight of numbers. If they were, the 6 million citizens of the Chicago area would hold sway in the Illinois Legislature without consideration of the problems of their 4 million fellows who are scattered in 100 other counties. Under the Court's new decree, California could be dominated by Los Angeles and San Francisco; Michigan by Detroit.." Dirksen was ultimately unsuccessful.

Ot her Const i tu t ion a l and Po l icy L imi ta t ions on Jud ic ia l Rev iew

Even if a case appears to be within the technical jurisdiction of a federal court there may be other constitutional or policy reasons for a lack of jurisdiction by federal courts. These include the limitation placed on Article III courts by the 11th Amendment when it comes to state court matters and a number of policy limitations which enable the federal courts to avoid a decision on the merits.

1. Constitutional Limitations

The 11th Amendment

In Cohens v. Virginia (1821), the Supreme Court upheld a fine imposed by a state court, while asserting the Supreme Court's authority, under the Constitution, to review state court decisions. The significance of Cohens is that it crowned a series of decisions asserting the Supreme Court's authority to, in the words of Marshall, "decide all cases of every description under the laws of the United States." In this 1821 decision, Marshall legally demolished the claims of states' rights which would later rise again in politically charged debates that precipitated the Civil War in 1861 when the southern states seceded from the federal government because of their belief in“States Rights”. Marshall said, "The Constitution and laws of a state, insofar as they are repugnant to the Constitution and laws of the United States are absolutely void."


The appeal in Cohen’s was brought on behalf of two speculators hoping to reap a multi-state harvest from a District of Columbia lottery. But it provided Chief Justice Marshall with grounds to assert the supremacy of the Union over the states. Marshall unequivocally asserted the "We, the People" with which the Constitution began meant the Union, Congress and the Supreme Court created by that Constitution reigned over the states:

The United States form . . . a single nation . . . In war, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects is the government of the Union. (Marshall in Cohen v. Virginia)

"It is their government, and in that character they have no other," Marshall declared using some of his most ringing words. "America has chosen to be a . . . nation; and for all these purposes, her government is complete . . . it is competent . . . it is supreme."

The Eleventh Amendment had already been adopted in 1816 when the court decided Martin v. Hunter’s Lessee affirming the Supreme Court’s power to issue judgments in constitutional cases coming from state courts. The Eleventh Amendment had no application in Hunter’s Lessee because the parties were private persons and the State itself was not a party. In Cohens, by contrast, Virginia was the prosecutor in the state trial court and was a party to the appeal to the U.S. Supreme Court. Cohens gave Virginia an opportunity to present again many of the same arguments presented in Martin, which relied on the text of the Supremacy Clause in Article VI, Section 2 (“every State shall be bound by federal law”). The Court in Cohens illuminated an exception to the 11th Amendment’s assertion of sovereign state right when it took the position that the Eleventh Amendment limitation is inapplicable because Cohen, the appellant, had not commenced the legal action in a state court - the government of Virginia did. So the court seems to indicate that the Eleventh Amendment limitation on federal court jurisdiction would not apply in any case in which the state had initiated the original legal action in its own courts, followed by an appeal to the federal Supreme Court, i.e. if the defendant appeals to federal court arguing that his constitutional rights have been violated. This would seem to make sense if a petitioner, a citizen of State X, is alleging that the action brought by state government X in state court is violating the petitioner’s rights under the federal constitution.

Effect of the Eleventh Amendment on Judicial Power

The 11th Amendment states, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or Subjects of any foreign state." This amendment was passed to curtail the subject matter jurisdiction of the Supreme Court and the lower federal courts. It prevents all individuals, foreign and domestic, from suing the states in federal courts, but it does not prevent the U.S. or another state from suing a state in the federal courts, nor does it act to limit the appellate jurisdiction of the Supreme Court. The Supreme Court has interpreted this amendment to apply only to state governments, and not to local governments and municipalities.


The Eleventh Amendment provides that the judicial power granted in Article III does not extend to suits against a state by citizens of another state or of a foreign country. Through judicial interpretation, this has been extended to provide a bar to suits against the state by its own citizens.

The following are exceptions:

(1) State Immunity. The Eleventh Amendment grant of sovereign immunity is limited to the states and their agencies. It does not bar suits against cities, counties, local school boards or other local agencies. Lake County Estates, Inc. V. Tahoe Regional Planning Agency (1979).

(2) Waiver. A state may waive its Eleventh Amendment immunity if it does so expressly by statute or waiver is otherwise clearly implied. Florida Dep't. of Health & Rehab. Servo V. Florida Nursing Home Assn. (1981).

(3) Unconstitutional Official Acts. A suit against a state officer acting unconstitutionally is not a suit against the state and the Eleventh Amendment is therefore not a bar. Ex parte Young (1908). For example: The Eleventh Amendment did not bar a suit against named state officia1s for allegedly unconstitutional acts which resulted in the death of students anti-war protesters at a university in Ohio. Scheuer V. Rhodes (1974). The fact that the state is required to expend monies in order to comply with resulting court decrees does not infringe the Eleventh Amendment prohibition. Milliken V. Bradley (1977).

Exception: Where a suit directed against a public official results in a retroactive charge on the general revenues of the state and cannot be distinguished from an award of damages against the state, the Eleventh Amendment bars the award. Edelman V. Jordan (1974) [award of retroactive welfare benefits held to violate Eleventh Amendment]. But the award of attorney's fees or other forms of ancillary monetary relief do not violate the Eleventh Amendment even if paid by the state. Hutto V. Finney (1978).

(4) Congressional Limitations. The Eleventh Amendment bar to suits against the state is limited by the power of Congress to authorize such remedies pursuant to § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer (1976).

Summing it Up - The Modern Eleventh Amendment Doctrine on State Sovereign Immunity

The doctrine has evolved considerably since the Cohens case. The U.S. Supreme Court still has jurisdiction to hear suits by one state against another. In addition, the courts have construed the Eleventh Amendment as permitting appellate proceedings in cases originally instituted by a state if the defendant asserted rights under the U.S. Constitution, statutes, or treaties (such as in Cohens), or in cases against state officials alleged to have violated such rights. The latter category has resulted in extensive litigation in federal courts against state and local officers alleged to have violated the civil rights act of 1871 (42 U.S.C.A.


Section 1983). Claims brought under the act are not subject to sovereign immunity.

Another aspect of the modern status of Eleventh Amendment immunity is its relationship to the Fourteenth Amendment. The Fourteenth Amendment does allow Congress to abrogate state sovereign immunity. Section 5 grants Congress the enforcement power to advance the goals of the amendment, which include the guarantees of due process and Equal Protection of the laws. Congress has used this power to apply modern Civil Rights laws as well as patent and trademark laws to state governments. This power was not questioned until the mid-1990s, when the Supreme Court began to issue decisions that strike down the application of federal statutes to the state governments. For example in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Court established a two-part test for determining whether Congress abrogated the states' immunity when enacting a particular statute. It ruled that absent a state's waiver, states retain their sovereign immunity unless (1) Congress unequivocally expressed its intent to abrogate the immunity, and (2) Congress acted pursuant to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment. The Court held that, in order to satisfy the first prong of the test, Congress must make its intent to abrogate the States' immunity unmistakably clear.

Case and Controversy

A second constitutional limitation on the federal judicial power granted in Article III is defined as "cases and controversies." This requires that a case be in an adversary form and context that is capable of judicial resolution and that its resolution would not violate separation of powers principles. If this requirement is not met, the federal courts lack jurisdiction, and therefore, power to act.

1) Policy Against Giving Advisory Opinions

The federal courts may not furnish opinions on constitutional matters in a "friendly" non-adversary proceeding even at the request of a coordinate branch of government.

Example: The Supreme Court held that Congress could not authorize a certain class of Native Americans to bring suit against the United States to test the constitutionality of federal legislation limiting the property rights granted by earlier federal legislation to the same Native Americans. The Supreme Court held that what Congress sought was an impermissible advisory opinion because the interest of the defendant United States was not adverse to the Native Americans. Therefore, there was no case and controversy. Muskrat v. United States (1911).

2. Policy Limitations (Judicial Self-Restraint)

Judicial review may be declined where the Supreme Court determines the review to be impractical or unwise.

a. Rules of Constitutional Construction - Constitutional issues affecting legislation will not be determined: (1) in advance of the necessity of deciding them; or (2) if there are alternative grounds of disposition; or (3)


S T U D Y T A S K 3

if a construction of a statute is fairly possible by which the constitutional question may be avoided; or (4) in broader terms than are required by the precise facts to which the ruling is to be applied. Ashwander v. TVA (1936).

b. Resumption of Constitutionality - Some of the policies recited above are exemplified in the long-standing canon of constitutional construction, that legislation challenged on constitutional grounds should be accorded a presumption of constitutionality by the reviewing court.

c. Judicial Restraint - The federal courts, where possible, have conventionally avoided judicial review, given: (1) the delicacy of the function; (2) the potential consequences; (3) the finality of the court's judgment; (4) the principle of separation of powers; and (5) the inherent limitations of the judicial process.

D. Other Specific Doctrines Limiting Judicial Review

There are a number of other specific doctrines, based on the case and controversy requirement and policy considerations, through which the federal courts avoid a decision on the merits. They relate to WHO may litigate a constitutional question, WHEN may constitutional issue be litigated, and WHAT constitutional questions may be litigated. We will not go into great detail on these doctrines, but know that they exist at the gateway to the judicial review process. These include concepts that may be familiar to you such as the following concepts.

o “Standing”, i.e. do the parties have an adequate personal stake in the outcome of the controversy?

o Is the appeal “Moot”, i.e. have conditions changed so the outcome expected would no longer be possible or the court doesn’t have the power to provide.

o Is the “Ripe” for appeal, i.e. does a party demonstrate injury or imminent threat of injury.

o Does the court have subject matter jurisdiction, i.e. is there a constitutional basis. Example – political questions may be exempt from jurisdiction.

Study the Article III Chart in your reading and then develop a corresponding chart that illustrates how each of the cases you have read in Topic 5 correspond to the topics in the Article III chart. This may help you remember what the cases stood for and any relationship that the cases have to each other.



1. The Supreme Court decided that Marbury had a right to the commission. If the Court found that Marbury had a right to the commission, why didn’t the Justices give it to him?

2. Summarize the provisions of the Constitution that limit the power of the federal judiciary to review state court decision and the actions of state government.

3. What is a “political question” and how does it limit a court from reviewing actions of the executive branch?

4. Provide a quick analysis of Harper v. Virginia State Board of Elections. In several sentences contrast and distinguish the rational of Justice Douglas, who delivered the majority opinion, and Justice Black, who wrote a dissenting view? What is the major difference between them philosophically?

5. What was the rationale of the majority in Reynolds v. Sims for deciding that Alabama’s apportionment of senators violated the U.S. Constitution.

6. A federal court, pursuant to Title VII of the Civil Rights Act has made a monetary award of back pay against State X to all female state employees, past and present, who suffered from discrimination as State X employees because of their sex. Congress enacted this legislation pursuant to legislative authority granted it under Section 5 of the 14th Amendment. State X argues that requiring it to provide monetary relief to its female employees offends the Eleventh Amendment. Doe it? Why?

Semina r Top i c

Re-Arguing Marbury v. Madison in the Modern Era as Madison v. Marbury The decision in Marbury v. Madison greatly expanded the power of the Supreme Court by establishing its right to overturn acts of Congress, a power not explicitly granted by the Constitution. The Court exercised the system of checks and balances by assuming the authority to declare acts of Congress, and by implication, acts of the President, unconstitutional. After Marbury v. Madison, the Court became the final authority on what the Constitution means. The Supreme Court became, in fact as well as in theory, an equal partner in government. It has played that role ever since – at least until the mock hearing that you will be your Topic 5 seminar. A typical Supreme Court hearing is distinct because oral argument is of limited length, is specific to the question on review and the justices will often Logistics: 2 rooms for use as hearing rooms

Two Panels Judges (Students) Two Legal Teams for the Petitioner the Madisons (Students)


Two Legal Teams for the Respondent the Marburys (Students) Supreme Court Rules at http://www.law.cornell.edu/rules/supct/ . Judiciary Act Cases: Marbury v. Madison, Dred Scott Case, Bush v. Gore, Brown v. Board of Education

1. Read the contemporary Supreme Court cases of Brown v. Board of

Education (1954) and Bush v. Gore (2001). 2. Re-Read the Dred Scott case 3. The class will be divided into two sets of three groups: 2 panels of

Supreme Court Justices, two legal teams (a petitioner and respondent). It its anticipated that each legal team will comprise two to four persons and the panels from two to four judges.

4. The background to this case is exactly the issue before the Supreme Court backing 1803 in Marbury v. Madison. Now though the Supreme Court has granted certiorari allowing a rehearing of the Court’s two century old decision in a petition brought by a group of legal scholars who believe that the Supreme Court needs to defer to other branches of governments including the states. This group is joined by the court under a party named the Madisons. The Marburys are a group of legal scholars who believe that Chief Justice John Marshall’s rulings about the power of the Judiciary was right on point. The case becomes Madisons (petitioner) v. Marburys (respondent).

5. The issue to be addressed is “whether the Court’s decision in Marbury v. Madison was made in error and should therefore be modified accordingly”. The team for the Respondent will argue against this proposition and the team for the Petitioner for the proposition a) Each team will have prepared their briefs (no more than two pages) in

advance using the format preferred by the Supreme Court (find out what this is!). But remember - no more than two single page sheets. This should be more an outline that guides the oral argument of the team.

b) 10 minutes - Introductions and presentation of brief(s). c) 5 minutes - Attorney for petitioner presents case (petitioner may

reserve up to two minutes -- out of the total of five -- for rebuttal). a. Questions by Judges

d) 5 minutes - Attorney for respondent presents case. a. Questions by Judges

e) 10 minutes - Justices deliberate while journalists interview participants.

f) 15 minutes - Panels announce their holding. Role of the Judicial panels – The role of the judicial panels is to act as would tbe Supreme Court at a hearing on the arguments. You preside over the hearing. Make your presence be known and let the legal teams know that you must convince them to win! The judicial panels determine which of the legal teams has been most convincing. Justices may consider the following list of questions as a guide for asking questions of the attorneys during the hearing and may also add questions. The judicial panels issue a bench decision, but it should be logically outlined and include authority for the decision.


Role of the legal teams -Madisons argue for the court to reverse its decision in Marbury v. Madison and the Marbury’s defend the principles established by Justice Marshall for Supreme Court appellant authority Same facts are to be used, but the respective legal teams should refer in their briefs and oral arguments to current social and political conditions in the U.S., the negative or positive consequences of maintaining the Supreme Courts doctrines of judicial review and must refer to the arguments or outcomes in the cases of Bush v. Gore, Brown v. Board of Education and the Dred Scott case to support their cases or weaken the opposing teams arguments. Cite the Constitution or other U.S. federal laws as necessary. While there can be a lead attorney on each team, every member of the panel should fully participate in the development of arguments and the oral arguments and questioning by the justices.

Sample Questions to Guide the Panels of Judges 1. The facts of this case are simple: A man wanted to receive his appointment to the position of justice of the peace. Out of such a straightforward set of circumstances arose one of the most important concepts in American government – judicial review. Give other examples of how one person’s or group’s problem resulted in court rulings that have a major impact on Americans and American life? 2. Chief Justice Marshall’s ruling is considered an ingenious compromise. Explain the compromise. 3. Give examples of disputes addressed by judicial review and how your position in Madisons v. Marburys would benefit society, the political system in the U.S. ,etc. How would it have affected the outcome in Brown v. Board of Education (1954); Bush v. Gore (2000) and Dred Scott 4. The rule of law is such a foundation of the American way of life that it is taken for granted. What does this concept mean? What are some words that you associate with the rule of law? How does the legacy of Marbury v. Madison contribute to the rule of law? Give some examples – from history and current events – of what happens in this country and other countries when the rule of law is not respected. Why would another approach be good or bad? 5. On one hand, the concept of judicial review, which came out of Supreme Court’s decision in Marbury v. Madison, is said to have reinforced the system of checks and balances. On the other hand, it accorded additional powers to the federal courts to oversee and, to some extent, control the actions of the other two, co-equal branches. As a result of this ruling, the Judicial branch has the ability to rule on the constitutionality of (and overturn) the actions of Congress and the President. Do you think the Supreme Court’s ruling truly balanced the system of checks and balances? Why or why not?


FEDERAL EXECUTIVE POWER

6 T O P I C



1. Domestic Affairs

a. Constitutional Sources Of Presidential Power

b. Presidential Privileges and Immunities

2. Foreign Affairs

a. Sources of Presidential Power Over Foreign Affairs

b. Foreign Relations, Diplomacy, and the Treaty Power

3. The Executive Bureaucracy: Executive Lawmaking

a. Judicial Control of Lawmaking by the Executive

b. Presidential Control of Executive Lawmaking



The sources of executive power and the authority of the President to take certain actions for domestic or foreign affairs reasons.

How the Executive Branch can engage in limited law-making without unconstitutionally engaging in actions that constitutionally belong to the Congress, as the legislative branch of government.

The power and limits of power of the president to appoint and remove officials, assert executive privilege or immunity and make executive orders.

The power of the federal judiciary or the congress to investigate or inquire into the lawfulness of activities by the President or federal agencies?





Presc r i bed Read ing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863,

96 L.Ed. 1153 (1952)

United States v. Cox, 342 F.2d 167 (5th Cir.1965)

United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997)

Chevron U.S.A., Inc. v. Natural Resources Defence Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),

Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)

United States v. Curtiss-Wright Export Corp, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936)

Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)

Re-Read Article 2 of the U.S. Constitution


Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Boumediene v. Bush, No. 06-1195 (U.S. 6/12/2008) (2008)

I n t roduc t ion

“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many...may justly be pronounced the very definition of tyranny.” — James Madison, Federalist #47 Article II, Section 1 of the Constitution vests the Executive Power in the President of the United States. It has never been determined whether this Vestiture Clause is itself a separate power, only a reference to all Article II powers, or a reference to the Constitution’s choice of a single rather than a plural Executive. In any case, the modern presidency has broad domestic and foreign affairs powers. He is Head of State, Chief Executive, Chief Legislator, and Commander-in-Chief of the armed forces. In examining the constitutional place of the Executive in the separation of powers system, keep in mind the wide gap between the President's paper powers and the President’s real powers. A reading of the Constitution provides only a shadow of the presidency. Most of the express powers are vague and lie in areas where power is shared with Congress. Over time, the tide of power has tended to flow with the Executive until constitutionality is questioned. This explains why there


is a continuing stream of Supreme Court cases that interpret the Constitution to confirm or limit the powers of the President and the Executive branch. Take a look again at Article 2 of the U.S. Constitution. The entire Article 2 can easily fit on one side of an A4 size piece of paper. Yet it defines what has arguably been one of the most powerful political positions in the world! While the grant of “executive power” to the President is broad it is equally undefined in the Constitution. Recall our discussion in Topic 2 about how the executive branch powers are also defined or limited by reference to other Articles of the Constitution. Even with this cross referencing there is relatively little direction offered by the Constitution on how the executive functions and relates to the other branches. Why is Article II so much shorter? Why is it so vague? There are 2,265 words in Article I, outlining the powers of the legislature; There are 1,023 words in Article II, outlining the executive branch of government. Article II is said to represent a compromise between the conflicting views of the framers of the Constitution over the nature of the office of the president. Remember the independence of the United States was based on loathing for anyone who resembled a king or tyrant. The framers had also experienced the negative consequences of government under the Article of Confederacy – so many saw that a loosely knitted decentralized government wasn’t going to be effective while at the same time they were cautious about placing too much power in the hands of one person. It can certainly be argued that the tension between Federalists and states rights advocates influenced the resulting vagueness of Article 2. To states rights advocates providing too much power to the President would be at the expense of the power of the states and of the Congress. A lack of powers would be viewed as leaving the federal government without the strength of singular leadership in domestic and foreign affairs. The compromise of vagueness in Article II allowed the Federalists, who favoured a stronger central government, to argue that the Constitution implied certain powers and that the Constitution, by necessity, required the Congress, which has no implementing authority, to delegate powers to the President in order to carry out the law of the land. The Constitutional Powers of the Presidency What powers does the Constitution provide to the president as head of state? The president has military powers as commander in chief of the armed forces and other security forces. The president has the power to grant reprieves, pardons and amnesties. The president has diplomatic powers—e.g., the power to make treaties, to enter into executive agreements, to recognize the existence of countries, and to serve as America's leader in all aspects of foreign policy. Big historical events of national crisis led to periods in which the power of the presidency was expanded. Over the past 100 years these events included the economic depression of the 1930s and World War II (President Roosevelt), the so


called “Cold War” between the U.S. and the U.S.S.R. (Kennedy through Reagan) and the post-“9/11” War on Terrorism (Bush). What powers does the Constitution provide to the President as Head of Government? The president is chief executive of the nation and is empowered to see that the laws of the United States are faithfully executed. He can propose legislation, but not generally make laws or regulations with legal effect unless authorized by statute. The president is empowered to use the military for national security, but his power to use the military in the States for domestic violence or law and order purposes is limited by Article IV. Institutional Resources of Presidential Power What institutional resources does the president use to manage the executive branch? Presidents have a number of institutional resources at their disposal including patronage, the Cabinet, the "inner Cabinet" or National Security Council, the White House staff, the Executive Office of the President, the Vice President, and the Office of the first lady. The Cabinet is the informal designation for the heads of the federal government departments. Individuals that comprise the White House staff or "Kitchen Cabinet" are generally the closest advisers to the president. The Executive Office of the President is composed of technical advisers including the Office of Management and Budget, which is responsible for coordinating the president's budget proposal. The Vice President exists to succeed the president and to preside over the Senate, breaking tie votes if necessary, but is essentially a political resource for the president during the election. The first lady has evolved from being largely ceremonial to being a more involved and active participant in the formation of public policy. Which of these resources have presidents increasingly relied on? Presidential power is dependent upon the president's ability to persuade others to follow his leadership. Accordingly, political resources including the election, the political party, interest groups, the media, public opinion, and mass popularity become as important as institutional resources in determining the power of the presidency. The Parameters of Power The Constitution’s vagueness on the parameters of presidential power has at times caused controversies about whether a President has overreached his powers. The controversies typically involve the legislative branch questioning whether the President exceeded the power conferred by the constitution or legislation. The judiciary is called upon to resolve these dispute which often, but not always, error on the side of limiting the power of the President. Let’s take a look first at the domestic affairs powers of the President and then we will move


on to an analysis of his foreign affairs powers, and how the other powers of the President have been adjudicated by the courts.

Domes t ic A f fa i rs Limited Domestic Law-Making Powers The President has no inherent domestic law-making powers, at least in the absence of extreme emergency. In emergencies, his power to "take care the laws be faithfully executed," (Art. 1, Sec. 3), does appear to create some power to act subject to congressional authority. Despite the clear separation of constitutional powers, presidents, members of Congress, judges, and laypeople have debated whether the executive branch is vested with additional inherent or implied powers. On one side of the debate are those who believe the presidency enjoys a residue of autocratic power. According to these individuals, such power may be exercised by the president in times of national emergency and is limited only by the president's good judgment. On the other side of the debate are those who believe the executive branch may not exercise any power that is not explicitly granted by the federal Constitution or federal statute. In between these views is an assortment of hybrid views. Youngstown Sheet & Tube v. Sawyer (1952), also known as the “steel seizure case” went a long way toward settling this debate. In Youngstown Sheet & Tube the Supreme Court reviewed the constitutionality of an executive order directing the secretary of commerce to seize possession of the nation's steel mills during a labour dispute and keep them operating while hostilities continued in the Korean War. Youngstown Sheet & Tube stands for the proposition that the Executive Branch has no constitutional authority to seize possession of private property, even if it is for public use during times of national emergency because such authority is vested in the lawmaking powers of Congress. As important as Marbury v. Madison was for defining the role of the Judiciary, Youngtown Sheet and Tube became the dominant Supreme Court decision defining presidential power. The case arose from a labour dispute between American steel companies and their employees over the terms of a collective bargaining agreement that was under negotiation in 1951. When negotiations between the labour unions and management reached an impasse, the employees' representative, United Steelworkers of America, C.I.O., announced its intention to commence a nationwide strike on April 12, 1952, at 12:01 A.M. A few hours before the strike was to begin, Truman issued Executive Order 10340, which commanded the secretary of commerce to seize most of the nation's steel mills and keep them running. In carrying out this order, the secretary directed the presidents of the seized steel companies to serve as operating managers for the U.S. government. Until directed otherwise, each president was to operate his plant in accordance with the rules and regulations prescribed by the secretary. While obeying these orders


under protest, the steel companies filed a lawsuit in U.S. District Court for the District of Columbia, seeking declaratory relief to invalidate the executive order and injunctive relief to restrain its enforcement. On April 30, 1952, the district court issued a preliminary injunction immediately restraining the secretary of commerce from continuing the seizure and possession of the steel mills. On that same day, the U.S. Court of Appeals for the District of Columbia stayed the district court's order on the grounds that resolution of such an issue is more appropriate for the U.S. Supreme Court. Granting certiorari three days later, the Supreme Court decided the case on June 12, 1952. Lawyers for the executive branch had argued that the presidency carries with it certain inherent powers that may be reasonably inferred from the express provisions of the Constitution. During times of national emergency, the government's lawyers argued, the president may exercise these inherent powers without violating the Constitution. Since wartime is traditionally considered a time of national emergency, the president's seizure of the steel mills represented a legitimate exercise of his inherent powers. In a 6–3 decision, the Supreme Court invalidated the executive order and affirmed the district court's judgment. Justice Hugo Black delivered the opinion of the Court. Truman's power to issue the order, the Court said, derives, if at all, from an act of Congress or from the U.S. Constitution. There are no other sources for presidential power, the Court wrote. Virtually all the justices contributed with their own concurrence or dissent opinions. The Court found that Truman had not acted pursuant to congressional authority. Prior to issuing the order, Truman had given Congress formal notice of the impending seizure, but Congress did not respond. No other federal statutory authority existed, the Court stressed, from which presidential power to seize a private business could be fairly implied. The Court next turned to the president's constitutional powers. Article II of the Constitution delegates certain enumerated powers to the executive branch. Unlike Article I, which gives Congress a broad grant of authority to make all laws that are "necessary and proper" in exercising its legislative function, Article II limits the authority of the executive branch to narrowly specified powers. Consistent with Article II, the Court said, a president may recommend the enactment of a particular bill, veto objectionable legislation, and "faithfully execute" laws that have been passed by both houses of Congress. As commander in chief, the president of the United States is vested with ultimate responsibility for the nation's armed forces. However, the Court emphasized, the office of the president has no constitutional authority outside the language contained within the four corners of the Constitution. Justice Black reminded the executive branch that only Congress can authorize the taking of private property for public use under the Eminent Domain Clause of the Fifth Amendment to the U.S. Constitution, but it was Justice Jackson whose analysis has perhaps been most referenced in subsequent decisions by U.S. courts.


Jackson articulated an overarching theory of federal executive power in the United States. According to Jackson, there are three tiers of presidential authority.

(1) When a president acts in conjunction with Congress, Jackson wrote, executive power is at its zenith because the president may rely on his own authority plus that of the legislative branch. (2) When a president acts contrary to congressional will, executive power is at its nadir because the president must rely solely on his expressly delegated authority minus that of the legislative branch. (3) And when a president acts in an area where Congress has been silent, executive power is uncertain and may fluctuate depending on the circumstances.

Another leading opinion on the separation of powers issue is United States v. Cox (5th Cir.1965), the second case in your reading. In Cox, a Mississippi grand jury returned an indictment charging perjury against two citizens of African-American descent. Upon instructions from the Attorney General the U.S. Attorney refused to sign the indictment. He was then held in contempt for disobeying the court's order to sign the indictment. The court held that the power to prosecute or not to prosecute was vested in the executive branch and said:

It follows, as an incident of the constitutional separation of powers that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.

Executive Privilege - While nowhere expressly mentioned, the need for candour and objectivity in confidential communications has been held to give rise to a privilege against disclosure which is constitutionally based. It is based on the separation of powers principle and flows from the need to implement the powers enumerated in Article II of the Constitution. However, this privilege, at least in the domestic sphere, is not absolute and may yield when the proven need for disclosure is sufficiently great. While a claim of privilege for confidential communication by the President is presumptively privileged, it is the duty of the judiciary to determine if sufficient need has been demonstrated by the party seeking disclosure. Yet there is a basic distrust of the executive when it comes to an exercise of Executive Privilege. Many outside of the executive are suspicious that the exercise of this power has and will be used again to hide the tracks of unconstitutional or illegal conduct by the executive branch. There are settled and unsettled aspects of Executive Privilege. The treatment of claims of executive privilege for military, diplomatic or sensitive national security matters, or the claim of privilege against congressional demands for information, have not yet been fully determined by the Supreme Court. There is more definition to the parameters of the privilege for domestic powers of the president. For example, in U.S. v. Nixon, President Nixon's claim of privilege for tapes and other materials relating to a corruption scandal (know as Watergate) from disclosure to a grand jury for use in a criminal proceeding was held not privileged.


The issues addressed in U.S. v. Nixon were:

o Does the separation of powers created by the Constitution provide the President with an absolute power to withhold information from other branches of government?

o If the power is not absolute, should President Nixon be able to claim executive privilege under the aforementioned circumstances?

o Does the separation of powers allow for the settlement of this dispute to reside in the executive branch or should it be settled by the judicial branch?

The Court ruled unanimously that President Richard Nixon had to surrender the tapes. Chief Justice Warren Burger delivered the opinion of the Court. Burger wrote, “The impediment that an absolute, unqualified [executive] privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III. The generalized interest in confidentiality did not prevail over the fundamental demands of the fair administration of criminal justice to prevent in camera judicial determination of what materials were relevant to the criminal proceedings and what should remain confidential. As you can see from your readings the case of Youngstown Sheet & Tube provides the backdrop for the court’s judicial analysis of executive authority involving assertions of privilege and immunity that were decided in U.S. v. Nixon. Let’s move on to another case, Harlow v. Fitzgerald (1982), in which the Supreme Court explores the President’s power in the realm of privileges and immunities. In Harlow, two former senior presidential aides and advisors, Bryce Harlow and Alexander Butterfield, were previously denied the use of immunity as a defence in a civil case. The case involved suit brought by the respondent, A. Ernest Fitzgerald, in which he stated that the petitioners had entered into a conspiracy while employed as senior presidential aides. The issue in the case is where the scope of immunity falls, and how it is applied to Senior Presidential Aides and Advisors. What was the rationale of the court in ruling that immunity did not exist as a defence? First it defined where immunity is needed by public officials. It stated that public officials require the protection of immunity in order for them to complete their jobs in a timely fashion without having to worry about lawsuit after lawsuit hindering their performance. In the case of the President and his Cabinet, prosecutors, legislators, and related entities, "absolute immunity" is granted, allowing them to be shielded from all legal action. However, in the case of executive officials, those who are aides, advisors, and the support staff for the office of the President, an issue of qualified immunity is applicable. It cited Scheuer v. Rhodes, 416 U.S. 232 (1974), which stated "… we acknowledged that high officials require greater protection than those with less complex discretionary responsibilities." In that case, the public policy being drawn by the official is also representative of the moral and judgment of the official himself; unconstitutional conduct must not be met with absolute immunity if only to justify the means. A claim of absolute immunity by an executive member must be


S T U D Y T A S K 1

in relation to a matter of national security or foreign policy, i.e. where they are advising the president or speaking on his behalf. The Court in Harlow though held that the presidential aides could not claim even a qualified immunity since they could not demonstrate that the actions they were defending against were functionally taken on behalf of the President acting under authority of the constitution or specific legislative authority. While the majority opinion of the Supreme Court is controlling in all cases the importance of the majority view to subsequent cases before the court may rest on the facts. This is why in American jurisprudence the dissenting opinions of Supreme Court cases are often an important read though the temptation is to not do so after reading the majority opinion. The dissenting opinion can, if nothing else, help define the majority opinion. A changing Court over time can come back to revisit the breadth of a previous decision and in doing so take into consideration a dissenting opinion. In Harlow the dissenting opinion of Chief Justice Burger offered quite a different perspective on immunity provided to presidential staff. Burger argued that support staff acts as alter egos to the President, which in turn, should give them the same immunity as the President, being that they make the decisions and write the policy for him. If the Aides and Advisors to the President are required to balance and weigh every move they make, it will interfere with their ability to do their job, was Burger’s rationale against trying to differentiate different degrees of immunity. There has never been a case in which a majority of justices have agreed with the view of former Chief Justice Burger, but his dissent helps us understand what is not constitutionally privileged. Returning to your reading and the subject of immunity, let’s look next at the landmark case of Clinton v. Jones (1997). The Supreme Court in this case ruled that the presidential immunity from civil suit was not absolute. A sitting President, said the Court, has no immunity from civil law litigation against him, for acts done before taking office and unrelated to the office. In the majority opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office. In his concurring opinion, Justice Breyer argued that presidential immunity would apply only if the President could show that a private civil lawsuit would somehow interfere with the President's constitutionally-assigned duties.

If your were President of the United States could you contemplate what type of situations you might find yourself where you might be tempted to exercise the powers of executive privilege to protect the other branches from infringing on the authority of the Executive Branch? Name at least one situation and the source of your authority to do exercise this privilege.


Where does the Executive Branch’s exclusive discretion to prosecute or not arise from according to the Court in Cox? According to Justice Black in Youngstown Sheet and Tube there are only two sources of presidential authority and Justice Jackson, in the same case, argues that there are three levels of Presidential authority. Does the opinion in Cox coincide with the two sets of rationale presented by Justices Black and Jackson?

Fore ign A f fa i rs Powers o f the Pres iden t

"In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature and not to the executive department…. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will which is to direct it…. In war the honors and emoluments of office are to be multiplied; and it is executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle…. Hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence: hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war."

—James Madison, "Helvidius" no. 4, 14 September 1793—

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect…. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object…. [The Constitution maintains] that no one man should hold the power of bringing this oppression upon us."

—Abraham Lincoln, 15 February 1848—

"When the push of a button may mean obliteration of countless humans, the President of the United States must be forever on guard against any inclination on his part to impetuosity; to arrogance; to headlong action; to expediency; to facile maneuvers; even to the popularity of an action as opposed to the rightness of an action. He cannot worry about headlines; how the next opinion poll will rate him; how his political future will be affected."

—Dwight D. Eisenhower, 4 November 1960—

The three former Presidents in their statements (above) articulate the reasons for limiting a President’s authority in respect to foreign affairs and the making of war. Despite their statements the respective roles of Congress and the Executive in the exercise of foreign affairs and the war powers remain not entirely clear.


Let’s take a close look at another landmark case – this time testing presidential powers in the realm of foreign affairs. The Court in United States v. Curtiss-Wright Export Corp. (1936) spoke of inherent foreign affairs powers vested in the national government and suggested an executive primacy in their exercise. The Constitution, however, provides a wide range of express and implied foreign affairs powers to each branch. Whatever the source of the national foreign powers, their distribution has yet to receive a consistent and clear judicial definition. A few items should be noted. Congress has broad discretion to vest foreign affairs powers in the Executive. Since foreign affairs and the war powers are exclusive to the federal government, states have a very limited role to play. Finally, remember that the political question doctrine discussed in Topic 5 plays an especially important role in the foreign affairs arena, inviting judicial avoidance of constitutional questions.

In Curtis-Wright, Congress passed a resolution authorizing the President to stop sales of arms to countries involved in a border dispute in South America. President Franklin Roosevelt immediately issued an order prohibiting munitions sales to the warring nations in the border dispute. Later, an indictment was issued that charged Curis-Wright with conspiring to sell arms of war to Bolivia, a country engaged in the border conflict, in violation of the Joint Resolution issued by Congress.

Congress' Joint Resolution authorized the President, "to prohibit the sale of arms if he found that such a prohibition would contribute to the establishment of peace in the region." Roosevelt had put into place export restrictions on Curtiss-Wright and other American manufacturers whose products were primarily of a military nature or had potential military use under the doctrine of national security. Curtiss-Wright argued that it had not specifically been named in any statutory laws passed by US Congress, which had instead given the President broad discretionary authority. Curtiss-Wright argued that the commerce involved was not interstate commerce which the U.S. Constitution specifically gives Congress the right to regulate, but international commerce, and in any event, the regulation was being made not by Congress but by the President.

Article I Section 8(3) of the Constitution specifically states that Congress has the power to regulate "commerce with foreign nations." The Trial Court held though that the Joint Resolution was an unconstitutional delegation of legislative power to the President. The US Supreme Court reversed and upheld the ban on arms sales. The Court found that while the Constitution may not explicitly say that all ability to conduct foreign policy on behalf of the nation is vested in the President, that it is nonetheless given implicitly and by the fact that the Executive, by its very nature, is empowered to conduct foreign affairs in a way which Congress cannot and should not.

The Supreme Court distinguished the President's authority in the area of domestic affairs, which is certainly restricted when it comes to commerce, from that of foreign affairs. Justice Sutherland talked about the concept of sovereignty, which the Court basically said went from the King of England to the President of the U.S. after the Revolutionary War. "The President is the sole organ of the nation. “

Sutherland felt that the U.S. must speak with a single authoritative voice in foreign affairs. There can't be a bunch of second-guessing and a chorus of independent voices from Congress and the States, stated Sutherland. The Supreme Court agreed that the President was allowed much room to operate in


executing the Joint Resolution; it found no constitutional violation. Because the Joint Resolution came from Congress, it wasn't a case of the President making the law, but just executing a law made by Congress. Making important distinctions between internal and foreign affairs, Justice Surtherland argued that because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically."

Applying Curtis-Wright to the “War on Terror”

The basic rule is that when Congress authorizes it, the President gains the power to make laws via executive order that he wouldn't normally have. United States v. Curtiss-Wright has been used to argue that the President can do whatever he wants in the international matters especially when Congress provides a statute giving authority to implement specific matters. This occurred most recently in 2004 in the Supreme Court case of Hamdi v. Rumsfeld. In that case the Bush Administration argued unsuccessfully that it had the right to place a U.S citizen accused of terrorism before a special military tribunal for alleged terrorists it was holding at the military facility in Guantanamo Bay Cuba. The Court of Appeals concluded that Hamdi, a U.S. citizen, is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure. The Bush administration also argued unsuccessfully that the right of habeas corpus was not available to Hamdi The Supreme Court reversed the Court of Appeals and held that although Congress authorized the detention of combatants in the narrow circumstances of suspicion of terrorism, due process demands that a citizen held as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. The Bush Administration misread Curtiss-Wright. In Curtiss-Wright the Congress authorized the ban and set the penalties. All that was delegated to the President in Curtiss-Wright was the determination of when and where the ban should come into effect. The minority opinion in Hamdi also liberally interpreted Justice Jackson’s three prong analysis in Youngstown Sheet and Tube as providing a basis for President Bush’s authority to create the military tribunals.

The Supreme Court reclaimed jurisdiction over habeas corpus petitions over non-citizens held at Guantanamo in Boumediene v. Bush, No. 06-1195 (U.S. 6/12/2008) (2008). In doing so it struck down parts of statutes enacted by Congress that severely limited judicial review of habeas petitions by “enemy combatants”. President Barak Obama, just days after being sworn it, ordered (see executive order) that all those held at Guantanamo be provided due process and had a right to file habeas corpus petitions.


Let’s summarize other foreign affairs powers of the President.

Presidential Powers - The President has power to receive Ambassadors and other public ministers (Article II, Section 3), to recognize or withdraw recognition of foreign governments, and to act on behalf of the United States in day to day dealings with foreign governments. This is augmented by his role as Commander-in-Chief.

Congressional Powers - Congress has express authority to regulate foreign commerce, to fashion a uniform rule of naturalization, to raise and maintain armies and to declare war as well as the vital power to tax and spend.

Shared Powers and Past Practice - The power to determine foreign policy then is arguably a shared power, although the executive has become dominant. The executive control of information and its ability for quick response gives it an advantage in this area. The case of Dames and Moore v. Regan (1981) in your reading is a good illustration of this rationale. In his Executive Order nullifying attachments on Iranian assets, transferring Iranian assets, and suspending claims against Iran, the President acted within his statutory authority. Prior legislation reflects a congressional purpose to put control of foreign assets in the hands of the President for use in negotiating the resolution of a declared national emergency. Congressional acquiescence in past presidential action supports such an interpretation. Past practice does not by itself create power but "long continued practice known to and acquiesced in by Congress raises a presumption that the action has been taken in pursuance to its consent." When the President acts on a vital issue of foreign affairs with Congressional approval and authorization, his Constitutional power is maximized. Can you see Justice Jackson’s three level rationale on presidential powers from Youngstown Sheet and Tub also displayed in Dames and Moore?

Treaties and Executive Agreements - The President has the power to make treaties with the advice and consent of the Senate provided that two-thirds of the senators present concur. Executive Agreements do not require Senate concurrence. While Congress is often consulted concerning such agreements, this is not required. While there is no express constitutional authority for such agreements, their legality is now established.

Art. VI provides that all treaties which are made "under the authority of the United States" are the supreme law of the land. They prevail, as do Executive Agreements, over inconsistent state law. Treaties and Executive Agreements are subject to constitutional limitations and the last in time controls.

The War Power as a Shared Power - Congress has the power to declare war, to create and regulate the armed forces, and to provide for the general defence. From these express powers are implied broad powers to prepare for war (e.g., to assure electricity, to register and draft), to regulate during wartime (e.g., economic controls in World War II), and to remedy wartime disruptions (e.g., veteran's benefits, rent controls).

Declaring and Making War - Since Congress has the constitutional power to declare war (Art. I, Sec. 8), the President cannot formally initiate a "war." But, as Commander-in-Chief (Art. II, Sec. 2), the President has power to repel sudden attack, to make war, and to control the disposition of our armed forces. These


S T U D Y T A S K 2

powers may often be used in such a way that the country may be committed to hostilities.

War Powers Resolution - Congress has the power to enact War Powers Resolutions which recognize an executive power to engage temporarily the armed forces in hostilities unless Congress directs their removal by concurrent resolution. Whether such legislation is an unconstitutional delegation of the war power or excessively intrudes on the President's power as Commander-in-Chief, his duty to execute the laws and his status as Chief Executive has not been judicially determined.

Foreign Affairs powers are shared powers between the President and the Congress? Is this statement true? Explain.

Treaties when negotiated by the President automatically become the highest law of the land? Is this statement true? Explain.

The Supreme Court’s ruling in Curtis-Wright means that the President would have unfettered discretion without authorization from Congress to, for example, issue an executive order barring all U.S. companies from selling advanced communication equipment to the warring factions in a civil war in Country X? Why or why not is this true?

Execut ive Bureaucracy and Admin is t ra t i ve La w

Judicial Control of Lawmaking by the Executive

Article II of the Constitution creates the Executive Branch, but except for reference to the President as the head of the executive branch, and authority to make appointments and grant pardons, there isn’t a lot of “meat” on the Executive Branch bone. Around the President are hundreds of thousands of Executive Branch employees and subgroups of independent regulators and political appointees located in various “departments”(akin to Ministry) and independent agencies (created by Statute). Political appointees serve at the pleasure of the President and are typically appointed to serve as the head of Departments and their immediate staff. A regulatory agency is a government agency responsible for exercising autonomous authority over some area of lawmaking that has been delegated by the legislative branch through a statute. It is generally independent of all the branches and though accused sometimes of being a “fourth branch” it is part of


the executive branch. The regulatory process includes a delegated power, rule-making powers, a right to notice and comment for the public and judicial review of regulatory actions. The civil service contains about 1.8 million people who work in the Executive Branch in administrative support, technical and management positions. The civil service system is now protected from patronage. Appointments and dismissals are done through a merit system that is independent of the political system. In addition to the civil service there are about 1.5 million persons on active duty in the U.S. military. While this would seem like a tremendous number of people under one man’s control it must be remembered that the President’s power is regulated by Congress. Ultimately the greatest check on Presidential power is a practical one – the power of the Congress to provide funds through the annual budget bill or supplemental appropriation bills.

The regulatory process is one of the more litigated areas of executive branch functions. The Chevron case below illustrates the analysis used by the courts to review the actions of regulatory agencies.

Chevron U.S.A. v. Natural Resource Defence Council - Under the Supreme Court's ruling in Marbury v. Madison (1803), United States federal courts have the authority to judicially review the statutes enacted by Congress, and declare a statute invalid if it violates the Constitution. But the Constitution sets no express limits on how much federal authority can be delegated to a government agency. Rather, limits on the authority granted to a federal agency occur within the statutes enacted by Congress.

Chevron U.S.A., Inc. v. Natural Resources Defence Council (1984), was a case in which the United States Supreme Court set forth the legal analysis for determining whether to grant deference to a government agency's interpretation of its own statutory mandate. It is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases.

The issue facing the Chevron court was what standard of review should be applied by a court to a government agency's own reading of a statute (Clean Air Act in that case) that gives that agency its authority to act.

As you saw in your reading, the Court, in an opinion by Justice John Paul Stevens, upheld the EPA's interpretation. A two-part analysis was born from the Chevron decision (called the "Chevron two-step test"). In this two step analysis a reviewing federal court determines the following.

(1) Whether the statute is ambiguous or there is a gap that Congress intended the agency to fill. (If the statute is unambiguous, and the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails.)

(2) If so, whether the agency's interpretation of a statute is reasonable or permissible. If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.


Power of Appointment and Removal

In Morrison v. Olson the Supreme Court had the opportunity to test the validity of legislation that restricted the power of the President to make certain types of executive branch appointments or to remove those appointees. Particular types of appointments involve regulatory or special investigative roles. Though these are in the executive branch the functions of the jobs may be such that they involve a quasi legislative function (such as a regulatory commission) or an investigative function (such as the special prosecutor). Presidential involvement in the appointment or removal could be viewed as self-serving, politically motivated and affect the credibility of the special positions. These special positions are the exception to the rule that the President controls everything in the Executive Branch because he does not have the power to appoint or remove.

Morrison involved one such position created through a statute that allowed the federal judiciary to appoint an Independent Counsel to investigate certain executive branch activities to ensure they were in conformity with the law. Subpoenas from two subcommittees from the United States House of Representatives directed the Environmental Protection Agency, a part of the executive branch, to produce documents relating to the efforts of the EPA and the Justice Department to enforce an environmental clean-up fund. Olson was the assistant Attorney General for the Office of Legal Counsel, which is part of the executive branch. President Ronald Reagan ordered the Administrator of the EPA to withhold the documents from Committees on the ground that they contained "enforcement sensitive information." This led to an investigation by the Judiciary Committee of the House of Representatives that later produced a report suggesting Mr. Olson had given false and misleading testimony before a subcommittee of Congress. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request that he seek the appointment of an independent counsel to investigate the allegations against Olson and two others. Olson, who was a Constitutional lawyer, attempted to argue that the independent counsel took executive powers away from the office of the President of the United States and created a hybrid "fourth branch" of government that was ultimately answerable to no one. He argued that the broad powers of the independent counsel could be easily abused, or corrupted by partisanship. Independent Counsel Alexia Morrison in turn argued that her position was necessary in order to prevent abuses of the executive branch, which historically operated in a closed environment.

The Court upheld the Independent Counsel provision of the Ethics in Government Act because it did not violate the separation of powers by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the independent counsel, the person holding that office was still an Executive branch officer, not under the control of either U.S. Congress or the courts. What do you think? Was the power of the other branches of government expanded through the use of the Special Counsel?

Let’s examine some of the other powers of the president. Veto Power - Recall if a bill is passed by the Congress it becomes law when it is signed by the President. What if the President refuses to sign? He can return it to Congress this way to show his displeasure with the law. Article 1, Section 7


provides that Congress in turn may block the veto if both houses of Congress vote by a two-thirds majority to override it. Pocket Veto - The President has ten days to determine if he will veto a bill or it automatically becomes law unless Congress by its adjournment prevents its return. The President is thus able to "pocket veto" a bill by not acting on it prior to adjournment. Executive Impoundment - The President impounds when he withholds or delays the expenditure of congressionally appropriated funds. This may defeat a congressional program or policy. It is argued that such impoundment is justified by statutorily-imposed budgetary constraints in the light of the constitutional mandate that the President should faithfully execute the laws. Conversely, it is claimed that such frustration of a congressional program or policy violates Congress' power to make the law and hence the separation of powers principle and constitutes an executive veto in a manner not prescribed by the Constitution. The Supreme Court has not yet ruled on this topic, but the Congress has enacted legislation limiting the executive power to impound. The constitutionality of such a restraint on executive power has not been judicially tested. The Pardon Power - Pursuant to Article II, Section 2, the President is granted "Power to grant Reprieves and Pardons for Offenses against the United States, except, in Cases of Impeachment." The presidential pardon power is plenary, subject possibly to explicit prohibitions in the constitutional text. For example President Ford granted President Nixon a pardon for all offenses which he "has committed or may have committed" during a specific time period. The courts have not been presented with opportunity to pass on the validity of the exercise of the presidential pardon power in advance of and in the absence of conviction for a crime. Also the conditional use of the pardon power to commute the death penalty to life imprisonment without possibility of parole has been held valid, even after the Court held general lack of uniformity in the death penalty to be unconstitutional. Executive Power to Make Appointments - The President has wide discretion under Article II, Section 2, Clause 2, to make appointments of person to office in the executive branch of government. Article 2 provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Congress may not vest the Appointment Power in persons other than those specified in Section 2, Clause 2. For example, a majority of the voting members of the Federal Election Commission were appointed by the President Pro Tem of the Senate and the Speaker of the House. Neither the Speaker of the House, nor the President Pro Tem of the Senate comes within the terms "Courts of Law" or "Heads of


S T U D Y T A S K 3

Department as required by Article II, Section 2, Clause 2. The power given to Congress under the Twelfth Amendment to regulate parties in connection with presidential elections does not permit Congress to create a federal commission to regulate such elections in a manner violative of the appointments clause. Accordingly, except in case of its investigatory and informative power, Congress in permitting the Commission to exercise administrative and law enforcement powers violated Article II, Section 2, Clause 2 (see Buckley v. Valeo (1976)). The Removal Power - The President has power to remove certain executive officials free from congressional supervision. This presidential power derives from his powers to "execute the laws" and pursuant to the language in Article II, Section 1 vesting "executive power" in the President. He is "Chief Executive." The presidential power extends only to officials clearly within the executive sphere and not to officials who are intended to independently exercise quasi-judicial or quasi-legislative functions, unless Congress otherwise provides. The President also has no power to remove the vast majority of the 1.5 million Executive Branch employees because Congress created a statutory employment system that regulates their employment. For example, in the absence of congressional authorization, the President has no power to remove a member of an adjudicatory commission appointed by a previous president on the ground that he wished the statute to be administered by people of his own selection. (see Wiener v. United States (1958)).

What is the “Chevron Two Step” test and under what circumstances is it applied by courts?


1. Which of the following is the most accurate and why?

A. The President has absolute executive privilege.

B. The Court engages in ad hoc balancing in accessing a claim of executive privilege.

C. A claim of executive privilege is presumptively valid.

D. It is for Congress to resolve whether a claim of executive privilege should prevail.

2. Please respond to the following question with a true or false. A statute providing for the appointment of an independent counsel by a panel of federal judges to investigate whether the President or his staff violated an ethics law would be an unconstitutional intrusion into Executive branch powers? Why is this true or false?


3. The President’s has wide latitude to make executive orders or take other actions that involve domestic and foreign commerce? Please explain your answer.

4. How do you think Justice Jackson (from the Youngstown Steel Case) would rule today in a case brought before the Supreme Court on the question of whether a U.S. President had the authority to arrest and hold indefinitely without charges a group of U.S. citizens located in Chicago, Illinois accused of conspiracy to commit a terrorist act in a foreign country? Would he need to know any other facts or circumstances to make a ruling?

Seminar Top ic Topic: Comparative Analysis of Domestic Powers of Heads of Government (U.S. and Pacific) For this week’s seminar please create an outline for a brief presentation (from 2 to 4 minutes) at the seminar that contrasts and compares the domestic affairs powers of the head of government in your home country with the domestic affairs powers of the President of the United States? What are the sources of these powers? What are the boundaries? Would a case on facts similar to Youngstown Steel be decided the same way by the courts of your country? Explain why or why not citing constitutional or legislative sources of authority and any relevant case law, as necessary. Be prepared for follow-up questions from the class. (Alternatively the instructor may break the class into “home country” work groups on this question)


FEDERAL LEGISLATIVE POWER—CONGRESSIONAL

ENCROACHMENT ON THE EXECUTIVE AND JUDICIARY

7 T O P I C



1. Congressional Control of Policy

a. Functionalism versus Formalism in the Interpretation of Division of Powers Cases

b. Encroachment and Aggrandizement into Executive and Judicial Powers

2. Congressional Immunity

a. Speech and Debate Clause



Be able to recognize the elements of formalism and functionalism in the opinions of Supreme Court Justices.

Understand the concepts of encroachment and self-aggrandizement by Congress into the Executive branch and Judicial branch.

Identify the methods and tests used by the Court to identify if Congress has unconstitutionally increased its power at the expense of another branches’ power.

Make a comparative analysis of the strengths and weaknesses of governance systems that separate legislative and executive functions and those that do not.

Understand the source of the Speech and Debate Clause and the limits of this clause.





Presc r i bed Read ing Immigration and Naturalization Service v. Chadha United States

House of Representatives v. Immigration and Naturalization Service United States Senate v. Immigration and Naturalization Service, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1982)

Bowsher v. Synar United States Senate v. Synar Neill v. Synar 85 1379, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986)

Plaut v. Spendthrift Farm Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995)

Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979)

Re-Read Morrison v. Olsen from Topic 6

Re-Read Article 1 of the U.S. Constitution


The New Formalism, Thomas C. Grey, Stanford Law School, Working Paper No. 4, Sept. 1999 (addressing the proposition that formalism has evolved from literalism and “as the urge for justice and common sense prevails in the face of a theoretical commitment to legal purity, the tendency is for all good things to be folded into the law, and without any effective distinction between legal and extra-legal sources of authority we cannot make sense of the rule of law.”

I n t roduc t ion

In this topic we will examine the outer limits of the power of the Congress. We will seek to answer the question of how far the legislative branch can go to affect policy to fulfil its legislative will. In part two of this topic we explore the privileges given to members of Congress by the Constitution to allow them to fulfil their responsibilities without fear of intimidation.

Congress iona l Cont ro l o f Po l icy Before the U.S. Constitution was enacted in 1787 the Articles of Confederation was the basic law of the newly independent United States. The Articles followed the British model of parliamentary control. There was no separation of powers – the Congress acted as the legislature and a special committee acted as de facto executive when the Congress was not in session. The full Congress acted as a judicial body to settle disputes only between the states. The transition from an all powerful Congress under the Articles to a tripartite government under the Constitution of 1787 was like going from night to day. The complexity of the relationships and each branches’ desire to test the limits of power, leaves ample opportunity for disputes especially between the two “political” branches of government – the executive and legislative branches.


The cases that follow will demonstrate how the judiciary has helped define the sometimes not so bright light between the executive and the legislative functions of the U.S. federal government. Functionalism v. Formalism as Rules of Interpretation in Separation of Powers Cases Functionalism refers to constitutional and statutory interpretation that takes into account the realities of the political system and construes constitutional requirements accordingly. Formalism is strict construction, textual interpretation of the Constitution and statutory law. Whether form or function should dominate interpretation of the Constitution has long been debated. The case of the legislative veto that is illustrated in the Chadha case in this topic highlights the split between formalism, which adheres strictly to the Constitution's prescribed forms, and functionalism, which provides for a broader interpretation. A reconsideration of Chief Justice John Marshall's views in the line of early 19th century cases that definitely strengthened the authority fo the Judicial branch also tips the balance in favour of formalism with the realization that the Constitution involves rules which are inevitably formalistic. Formalism emphasizes the deduction of bright-line rules from the strict reading of the Constitution. Functionalism arrives at standards and balancing tests based on a more flexible interpretation. Consideration of separation of powers cases shows that formalism and functionalism in constitutional interpretation are not necessarily antithetical. Youngstown Sheet and Tube and Morrison v. Olson reveal that these two schools of thought are actually complementary. This generally means that a court may utilize formalism as far as it can stretch it and resort to functionalism to achieve an outcome that may not be achieved alone through the explicit terms of the Constitution. Another set of terms used in separation of powers cases are aggrandizement and encroachment. There is a fine line between aggrandizement and encroachment. Aggrandizement is direct congressional exercise of executive power, as Congress taking over the “removal power” we found in the Myers case (special counsel) in Topic 6 and the Bowsher case (comptroller general) in this topic. Congress encroaches when it poaches on executive territory and indirectly interferes with the President's constitutional powers rather than directly taking it over. Madison wrote in The Federalist, no. 51, cited by Justice Scalia , that each branch of government must have the "necessary constitutional means and personal motives to resist encroachment of the others.” Justices and judges are not always consistent in following a functional or formal approach leading to unpredictability of results on separation of powers cases. Nor is it always clear whether one or the other method is the basis of an opinion. We could see both methods in Justice Rehnquist's seemingly textual and formal approach in Morrison v. Olson to uphold the Office of Independent Counsel . Scalia's formal approach in that case led to an opposite conclusion. Now let’s look at several more cases. The first involves what some scholars would say is a


case of Congress attempting to “aggrandize” itself into Executive function, i.e. taking over the President’s power to manage the government’s budget. Bosher v. Synar (1986) - In order to eliminate a chronic federal government budget deficit in the United States, Congress enacted the Balanced Budget and Emergency Deficit Control Act of 1985 (Act), popularly known as the "Gramm-Rudman-Hollings Act," which sets a maximum deficit amount for federal spending for each of the fiscal years 1986 through 1991. If in any fiscal year the budget deficit exceeded the prescribed maximum by more than a specified sum, the Act required basically across-the-board cuts in federal spending to reach the targeted deficit level. These reductions were accomplished under the "reporting provisions" spelled out in 251 of the Act, which requires the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) to submit their deficit estimates and program-by-program budget reduction calculations to the Comptroller General who, after reviewing the Directors' joint report, then reports his conclusions to the President. The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General, and the sequestration order become effective unless, within a specified time, Congress legislated reductions to obviate the need for the sequestration order. The Comptroller General is nominated by the President from a list of three people recommended by the presiding officers of the House and Senate. He is removable only by impeachment or a joint resolution of Congress (which requires majority votes in both houses and is subject to the veto). Congress can give a number of reasons for this removal, including “inefficiency,” “neglect of duty,” or “malfeasance.” The Supreme Court held, in a sharply divided opinion, that the Congress cannot control the execution of its laws; since it doesn’t possess this power, it can’t delegate it to its agents. It found in so ruling that the Comptroller General is an agent of the Legislature because Congress can remove him by a process other than impeachment. The Comptroller General was found to exercise executive power, thus the Graham-Rudman-Hollings Act was an unconstitutional aggrandizement since in the words of the Court the Constitution "does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess." You will return to the analysis of Bosher v. Synar in our Study Tasks and Review Questions. For now though you should concentrate on identifying the formalist and functional arguments of the majority and of the minority in the Court’s decision. A second landmark case involving separation of powers is INS v. Chadha (1983). This case involved the right of a person without legal rights of

The Appointments Clause of Article II of the Constitution provides that "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."


citizenship or residence in the U.S. to a suspension of deportation upon the Attorney General's finding that he/she meets statutory grounds for suspension. The grounds included a period of continuous residence in the United States, good moral character, and a finding that deportation would cause "extreme hardship." For example, if the person to be deported had a U.S. citizen wife and children then the break-up of the family by a deportation order might qualify as “extreme hardship” Refusals to suspend were subject to judicial review, while suspensions were to be transmitted to Congress for review and subject to veto by the House or the Senate. Therein was the possibility of what has been called a “legislative veto”. The legislative veto in this case allowed the House of Representatives to overturn the decision of an immigration judge to suspend the deportation of Mr. Chadha. Chief Justice Burger took a formal approach to the case. He found that Congress exercised a constitutionally delegated legislative power under Article I "to establish a uniform Rule of Naturalization" in vetoing the Attorney General's action. A single chamber cannot legislate. The formal constitutional procedures must be following which are approval by both the House and the Senate and a presidential signature as the only way to “veto” an executive branch decision. Contrast Justice Burger's formal opinion with Justice White's "functional" dissent. White argued that Congress has long used legislative veto provisions in over 200 statutes to fulfil its constitutional responsibility to control lawmaking. He continued, "The history of the legislative veto also makes it clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches....Rather, the veto has been a means of defence, a reservation of ultimate authority necessary if Congress is to fulfil its designated role under Article I as the Nation's lawmaker." To White, administrative rulemaking is lawmaking pure and simple. "If Congress may delegate lawmaking power to independent and Executive agencies, it is more difficult to understand Article I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test." Encroachment into Judicial Powers The general rule is that Congress has the power under Article III to restrict or eliminate lower federal court jurisdiction, and to but not that of the Supreme Court, which received its original and appellate jurisdiction from Article III. For the lower federal courts there are no clear Article III powers. The lower courts exist through a statutory creation. One would think that this might raise some issues of independence. Intrusions by the Congress into the judiciary are not frequent. Plaut v. Spendthrift Farm, Inc. (1995), in your reading, is interesting because it demonstrates an attempt by the Congress to manage judicial outcomes and the Supreme Court’s rationale in refuting this attempt.


S T U D Y T A S K 1

In Plaut there was a Securities Exchange Act violation. The resulting litigation involved private parties in a civil action. After Supreme Court dismissal of the first action for being brought outside of the statute of limitations which is prescribed in the Court Rules, Congress passed an amendment (Section 27A) to the Securities Exchange Act, extending the statute of limitations in these cases, as well as providing for the “reinstatement” of causes of action that had been dismissed on statute of limitations grounds during the time of pendency of the first action in this case. This statutory change would have resulted in the re-opening of the Plaut case. The issue before the Court was whether Congress can reinstate a case that has been previously dismissed on statute of limitations grounds. The argument for constitutionality of the statutory change was premised around Congress’ power under Article III to modify the appellate jurisdiction of the Supreme Court, which includes statutorily reinstating a class of cases. The argument against constitutionality was that Congress’ power does not include reinstatement of previously decided cases under new laws. In Plaut, Justice Scalia wrote the very formalistic based opinion. He stated that Article III not only gives the federal judiciary the power to rule on cases, but to decide them, subject only to review by superior courts in the Article III hierarchy. “When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.’” Such power is clearly contrary to what the framers contemplated in the separation of powers. It did not matter that the statute was with reference to a general class of cases, and not ostensibly to a particular case, if it gave the Congress the power to reinstate a case, it necessarily interfered with the outcome of a particular case. Scalia compares the case with Chadha v. INS, and writes that "legislated invalidation of judicial judgments deserves the same categorical treatment accorded by Chadha to congressional invalidation of executive action.”

Describe the issues before the Court in the two cases above (Bowser, Chadha) as well as in Morrison v. Olsen (from Topic 6). Provide a concise statement of the decision and the majority opinion in each of these cases then describe the method of interpretation used by the majority in each, i.e. functional, formalism or a medley of both. Can the majority opinions in each of these three cases be reconciled so that a future Court can apply a broad rule? Or not?

What is the “bright line” according to Justice Scalia in Plaut that separates constitutional and unconstitutional control by Congress of the Court’s appellate jurisdiction.


S T U D Y T A S K 2

CONGRESS IONAL IMMUNITY UNDER THE SPEECH AND DEBATE CLAUSE

The framers of the Constitution sought in various ways to guarantee the independence of each of the three branches. The President is protected against criminal prosecutions while in office, answerable only in an impeachment trial with a super-majority required to convict. Members of the federal judiciary are given lifetime tenure, with a guarantee that there compensation would not be reduced. To ensure free discussion of controversial issues in Congress, the framers immunized members of Congress from liability for statements made in House or Senate debate.

Article I, Section 6 of the Constitution states:

The Senators and Representatives shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

So what do you think this means? Is the speech of a member of Congress protected at all times and all places? Of course one must remember that when they are not protected under Article 1, Section 6 they are protected by the First Amendment of the Constitution, which provides guarantees of free speech to every citizen (we will cover the First Amendment in Topic 12). This protection is constrained by common law and state laws of libel and slander. In the case of a member of Congress the risk to them is that non-immunized, arguably libellous speech will be held to a higher standard because they are a public official. Therefore a plaintiff who is not a public official would not be required to demonstrate actual intent of malice on the part of the defendant who is a member of congress. Please analyse Hutchinson v. Proxmire in your reading. Would you agree that this premise is reflected in the decision by the Supreme Court in Hutchinson v. Proxmire?

What was the courts rationale for deciding that Senator Proxmire’s newsletter articles arguably ridiculing Mr. Hutchinson was not immune from a libel action by Mr. Hutchinson?

The Supreme Court in Hutchinson v. Proxmire used a formalistic approach? True or false Why?


Rev iew Quest ions 1. What do you think would have been the opinion of Justice Marshall (of

Marbury v. Madison fame) if he was Chief Justice at the time of the Plaut case? Would he have been a formalist? Would he have gone further in protecting the appellate review powers of the Court or would he and Scalia have basically agreed?

2. Do you think the court could have justified immunizing Senator Proxmire’s newsletter articles announcing the “golden fleece award” to Mr. Hutchinson? Do you think it would be prudent to protect all speech of members of the legislature whether it was purely for a legislative purpose or not? Would the question of immunity for members of the legislature be more appropriately measured with a functional methodology? Why or why not.

3. Explain, referencing cases studied in this topic, how a Supreme Court judge can take both a formalist and functional approach to interpreting issues in the same case?

4. What is the distinction between aggrandizement and encroachment by the Congress into the Executive Branch? Give examples from your readings.

Seminar Top ic Topic: Three Views on Separation of Powers Models Separation of powers, a term ascribed to 18th Century French philosopher Baron de Montesquieu, is a model for the governance of democratic states. The model was developed before Montesquieu in ancient Greece (documented by Greek historian Polybius nearly two thousand years earlier) and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary. No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems (like the U.S. model) are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers. Parliamentary democracies do not have distinct separation of powers. The executive, which often consists of a prime minister and cabinet or council of ministers ("government"), is drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is normally an independent judiciary. Thus we see independence of the judiciary as an essential element of both systems. In this week’s seminar the class will comparatively examine the issue of whether a constitutional separation of legislative and executive powers is a good thing, a bad idea or one that makes absolutely no difference in the


lives of normal citizens. Start with the premise that the U.S. constitution requires a separation of powers and that many other governments have a fusion of legislative and executive powers through a parliamentary system. Another premise is that the Pacific Island countries are different. Different cultural backgrounds yes, but also a variety of different governance models for their national governments. This will be a tripartite debate. You will be assigned to one of the three teams of “constitutional scholars”. Team 1 will argue that the U.S. model is superior in promoting democratic governance by separating the legislative and executive powers reducing the risks of a sort of tyranny by one dominant political party or individual. Team 2 shall argue that parliamentary systems can fuse the legislative and executive functions in a way that promotes efficient government and actually reduce the risk of a “head of government” becoming too powerful to the point of tyranny, Team 3 shall take the interesting perspective that neither political model has significant advantages or disadvantages, but that it is the presence of an independent judiciary that promotes democratic values and reduces the risk of tyranny by majority rule. The instructor shall award points to each team based on their ability to articulate and defend its arguments, cite sources from U.S. or Pacific law, jurisprudence or factual circumstances in support of its arguments, response to questions and refute the arguments of the opposing teams. The rules for the debate shall be discussed and agreed upon by the instructor and seminar participants in the class preceding the seminar.


NATION AND STATE — DISTRIBUTION OF LEGISLATIVE

POWERS AND INTERGOVERNMENTAL

RELATIONS

8 T O P I C



1. The Nature and Scope of the National Legislative Power

a. McCulloch v. Maryland

2. The Commerce Power

a. The Commerce Clause and ‘‘Dual Sovereignty’’: Expansion and Limitation

i. Gibbons v. Ogden

b. The Dual Sovereignty Doctrine

i. Wickard v. Filburn

c. The Modern Revival of Limited Dual Sovereignty

i. United States v. Lopez

ii. United States v. Morrison

3. Other Sources of Authority for the Congressional Legislative Action within the Realm of the States



The historical and political background that influences the issues defining the sovereignty of the states in the United States, and the general reasons for the expansion and contraction of Congressional legislative power through two centuries of judicial decisions.

The rationale of the Court in McCulloch in defining the necessary and proper clause of Article 1 and how this decision influenced the scope of topics on which Congress could legislate.

How the Commerce Clause of Article 1, Section 8 became a focus area Supreme Court clarification of Congress’ power to legislate under the authority of this clause.

The tests that the Court uses to determine the validity of a Congressional statute purporting to fall under Commerce Clause authority

How different issues arising under the Commerce Clause may be treated by the Court based on focus cases presented in this topic.

Other constitutional authority for Congress to legislate on matters that may legitimately encroach on state sovereignty.

How the issues involving federal and state sovereignty in U.S. are comparable and distinguishable from other federal forms of government – specifically Australia.





Presc r i bed Read ing McCulloch v. Maryland

Gibbons v. Ogden

Wickard v. Filburn

United States v. Lopez

United States v. Morrison

Gonzales v Raich

Article 1, U.S. Constitution

10th Amendment, U.S. Constitution

14th Amendment, U.S. Constitution


D'Emden v. Pedder (Australia)

Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power, Kenneth R. Thomas, Congressional Research Service, (February 1, 2008)

I n t roduc t ion – Federa l i sm and S ta te Sovere ign ty

American Government is certainly complicated. Think about it. It is a federated government composed of a national government and more than 50 state and territorial governments and tens of thousands of smaller local governments all typically with three branches of government. The national government has only such powers as are granted through the Constitution, either expressly or impliedly. Powers not delegated are retained by the states and the people pursuant to the 10th Amendment (Reserved Powers) which reads:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment 10 seems simple enough, but what it really means has led to more than two hundred years of definition and redefinition by the Courts. Underlying the judicial interpretation and reinterpretation is a certain tension created by differing expectations of roles and degrees of sovereignty of the state and the national governments. The Expansion and Contraction of Federal Legislative Power The newly independent United States was somewhat of a clean slate when the Constitution was ratified in 1789, but did still also reflect a compromise between the Federalists and the Anti-Federalists. It had a colonial history and a new constitution and a brand new Supreme Court to interpret the new constitution. Very importantly there were also the states, with a colonial history in which each developed its political identity and aspects of sovereignty. Yet, there are few enumerated powers for the states in the U.S. Constitution, but also very few powers explicitly taken from them.. A quite broad view of federal legislative power originated with Chief Justice Marshall in the early nineteenth century. As we saw in earlier topics, Marshall was not timid about implying constitutional authority in support of the independence of the judiciary or the primacy of the federal government. The dynamic between national and state government changed markedly after Marshall’s death in 1835 with states rights advocacy and judicial acquiescence leading to the ascent of state sovereignty until the 1930’s. The exception to this trend was the period during and immediately after the U.S. Civil (1861). The U.S. civil war was due in large part to the disharmony caused by the debate over slavery. It was also very much a debate over the sovereignty of the states and the proper scope of the national government’s power. There appears to be a converse relationship between the periodic decline of state sovereignty and national crisis. For example, national government powers expanded significantly during periods of political, social or economic crisis such as: the start-up period after Independence (the Marshall years at the Supreme Court), the civil war (1861-1865), the economic depression of the 1930s, the civil rights movements of the 1960s and the years following the “9/11” attacks on the United States. It can certainly be argued that only a national government with expanded powers could address such serious national issues. The alternative would be 50 state legislatures developing 50 sets of law on the same topic. This perspective though is not generally shared even now by those who argue for increased sovereignty to the states to prevent overreaching by the federal government into the lives of the people. The concept of state sovereignty was a focal point of American political theory both before and after the Constitution was adopted. The Articles of Confederation at Article II explicitly stated that "each state retains its sovereignty, freedom and independence". The Constitution was adopted largely in response to the problems


posed by the conflicts (especially commercial in nature) among states generated by the Articles' broad recognition of state sovereignty.

"The defect of power in the existing Confederacy to regulate the commerce between its several members is in the number of those which have been clearly pointed out by experience....The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples as well as our own." (The Federalist No. 42, at 267-68 (James Madison)

The primary objective of anti-federalist opponents of the new constitution was to retain for the states as much political authority as possible. On the theoretical question of state sovereignty, the anti-federalist position was very clear and uncompromising:

"A fundamental conviction of nearly all anti-federalists was that the Constitution established a national, not a federal, government, a consolidation of previously independent states into one, a transfer of sovereignty in which the states, once sovereign, would retain but a shadow of their former power." (from Jackson Turner Main, The Anti-federalists: Critics of the Constitution 1781-1788 184 (1961))

It has indeed been difficult for the proponents of strong state sovereignty to reconcile themselves to the loss of local political power in some areas, but the ideological orientation of those opposing strong federal authority has in subsequent years shifted considerably. At the time the Constitution was framed the proponents of strong state sovereignty were members of what would be characterized as the "progressive or liberal" branch of the political culture.

"[The Articles of Confederation] were a natural outcome of the revolutionary movement within the American colonies. . . . The reiteration of the idea of the supremacy of the local legislatures, coupled with the social and psychological forces which led men to look upon 'state sovereignty' as necessary to the attainment of the goals of the internal revolution, militating against the creation of such a centralized government as the conservative elements in American society desired. . . . Today 'states' rights' and 'decentralization' are war cries of the conservative element, which is not wielding the influence in national affairs it once did and still longs to do. But in the eighteenth century decentralization and states' rights meant local self-government, and local self-government meant a form of agrarian democracy." (from Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution 1774-1781, 239-40 (1940))

The Civil War in America (1861-1865) was very much a war about the sovereign rights of States. What had been debated previously became a brutally violent war about a state’s right to leave the “Union” so that it could retain exclusive control over its property law (as slavery law was perceived in the Southern states). It was a conflict that cost the lives of over 610,000 combatants.


Since the Civil War, however, proponents of protecting state sovereignty have been identified largely with conservative political causes. After the Civil War, for example, issues of state sovereignty became bound up with issues of race. This manifestation of the theory of states' rights became evident in local opposition to federal control of state governments during the period immediately after the civil war (called the Reconstruction). It then mutated into support for so called “Jim Crow” legislation throughout the South. These were State and local laws that mandated “equal but separate” treatment resulting in de factor segregation in school and public facilities. It finally mutated again after World War II into opposition by some states and localities in the “old South” to federally mandated integration of public schools and other facilities. As this racial rights militancy subsided in the 1960’s and early 1970’s, other causes favoured by social and political conservatives moved in to feed local opposition to federal authority. These included a range of social issues that were latched on to by States sovereignty advocates as issues that should be legislated exclusively by the States, not the Federal government. Examples of such social issues include environmental pollution controls, gun ownership control, abortion and even such relatively minor issues as federal government mandated speed limits on highways. Added to these social issues are a full range of local economic interests. These tend to oppose federal political power insofar as it subjects local economic interests to the mandate of open competition from out-of-state participants in the national marketplace. In Topic 7 we addressed Congressional encroachment into the Executive branch. The topic of state sovereignty is similarly about whether Congress has encroached into powers reserved under Article 10 for the states or the people. As you read the cases in this topic you will explore about two hundred years of political, economic and judicial reality in America. By the end of the topic you will recognize the sometimes jagged and still meandering boundary between Congressional authority under Article 1 and State sovereignty under the 10th Amendment.

The Na ture and Scope o f the Na t iona l Leg is la t ive Power The United States is a government of limited and enumerated powers. Congress, and the other two branches of the federal government, can only exercise those powers given in the Constitution. The most important listing of congressional powers appears in Article I, Section 8 (see box at end of Topic) which identifies in seventeen paragraphs many important powers of Congress. The last paragraph of Article I, Section 8 grants to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers"--the "Necessary and Proper Clause." Article I, Section 8 expressly grants a variety of powers to Congress including the powers to regulate commerce with foreign nations and among the several states and to lay and collect taxes to pay the debts and provide for the defence and general welfare of the United States. These are referred to as the Express Powers


of Congress. These express powers are concisely stated and one would think beyond controversy. Implied powers arise from the "Necessary and Proper" Clause. Article I, Section 8 also provides that the Congress shall have the power “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 Government of the United States, or in any Department or Officer thereof." The interpretation of the Necessary and Proper Clause was the subject of a heated debate between two important figures in the early history of the U.S. Alexander Hamilton, argued that the clause should be read broadly to authorize the exercise of many implied powers. Thomas Jefferson, argued that "necessary" really meant necessary. Hamilton's more flexible interpretation makes possible a strong central government, whereas Jefferson's narrower interpretation strengthens states' rights. The famous case of McCulloch v. Maryland (1819) was an early attempt by the Supreme Court to define the terms "necessary and proper" and add some clarity to the debate. McCulloch considered whether Article I, Section 8 gave Congress the power to create a national bank and, if so, whether the state of Maryland could tax it. For nine days, Daniel Webster, a popular lawyer of the time, and former Constitutional Convention delegate Luther Martin argued the case before Court. Chief Justice John Marshall, writing for the Court, found the Necessary and Proper Clause gave Congress the flexibility to create the bank as an aid to carrying out its enumerated borrowing and taxing powers and that Maryland's taxation of the bank violated the Supremacy Clause. If the end for which Congress legislates is legitimate and within the scope of the Constitution then "all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional." Thus - Congress may use "reasonable" means for achieving its delegated powers according to the Court in this early case. The Court recognized that among the enumerated powers of government the word "bank" or "incorporation" is not found. Nevertheless the Constitution, it ruled, did not enumerate all the means by which the powers it confers may be executed. Congress has implied power to create such a corporation if it is appropriate to the beneficial exercise of an enumerated power, e.g., incorporation of a national bank by Congress is a useful instrument for pursuing the fiscal powers of Congress. The Court found that "the power to tax involves the power to destroy...If the states may tax one instrument [of the Federal Government] they may tax any and every other instrument...the mail...the mint...patent rights...judicial process. This was not intended by the American people. They did not design to make their government dependent on the States." Furthermore, he said, "The Constitution and the laws made in pursuance thereof are supreme; they control the Constitution and laws of the respective states and cannot be controlled by them." This case, fundamental to American constitutional law, established the following two principles:


S T U D Y T A S K 1

1. The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government; and 2. State action may not impede valid constitutional exercises of power by the Federal Government.

McCulloch v. Madison established judicial endorsement of Alexander Hamilton’s proposition that federal power did not originate from the States, but from the people through their ratification of the Constitution. The McCulloch case was so fundamental to defining the scope of Congressional power in a federal government that it was cited in the first substantial constitutional case presented before the High Court of Australia in D'Emden v. Pedder, [1904] HCA 1, which dealt with similar issues in the Australian federation. In that case, while recognizing United States law as not binding nevertheless determined that the McCulloch decision provided the best guideline for the relationship between the Commonwealth federal government and the Australian States. Although the Supreme Court had held, prior to Marshall’s appointment to the Bench, that the supremacy clause rendered null and void a state constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government, it was Chief Justice Marshall who developed the full significance of the clause as applied to acts of Congress . By his vigorous opinions in McCulloch v. Maryland and then in the next case in your reading, Gibbons v. Ogden, he gave what has been referred to as the Doctrine of Supremacy a robustness that has survived vacillation by the courts since then.

The alternative to a government of enumerated powers is, of course, a government of un-enumerated powers. The Constitution might have said "Congress shall have all powers not specifically prohibited elsewhere in this Constitution." What are the advantages and disadvantages of each system?

It would be silly to say, for example, the "power to establish post offices" did not include the power to print postage stamps or pay mail carriers. But does it also include the power to regulate the trading of stamps by stamp collectors? How broadly or narrowly should the enumerated powers be read? Should the "Necessary and Proper Clause" be interpreted as authorizing "necessary" to carrying out a listed power?

In McCulloch vs Maryland, Chief Justice Marshall notes that the Constitution is not a statute, and suggests that it should be read more liberally and flexibly than a statute so that it might serve the ages. Do you find Marshall's argument about constitutional interpretation persuasive?

Thomas Jefferson, “Founding Father” and President, was none too pleased with the decision in McCulloch. Jefferson said, "The judiciary of the United States is a subtle core of sappers and miners constantly working underground


to undermine the foundations of our confederated fabric." What do you think Jefferson meant by this characterization?

The Commerce Power o f Congress

Any of the clauses in Article I, Section 8 could have elicited a contest of power between the state and federal governments with each claiming sovereignty over a certain activity. After the Court’s ruling in McCulloch, almost all of the important cases involved congressional legislation pass pursuant to federal authority to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”, i.e. the Commerce Clause.

Regulation of international commerce or with the “Indian tribes” resulted in only the rare controversy. The same cannot be said of commerce among the states where there has been a considerable number of controversies. We will focus on the Commerce Clause in the context of the ongoing tension about sovereignty between the Federal government and the states.

The Commerce Clause and ‘‘Dual Sovereignty’’ - Expansion and Limitation

The second case in your readings of Gibbons v. Ogden (1824), decided 35 years after the ratification of the Constitution, was a key turning point for the expansion of federal power to address national problems.

Under the Articles of Confederation, the national government was virtually powerless to enact policies to rationalize the actions of states. One problem that emerged during this time was the way in which state policies tended to restrict commerce within and beyond their borders, making market exchanges inefficient and costly. In the Constitution, the framers included the Commerce Clause in Article I, Section 8 to address this issue. The Commerce Clause states that Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States. . . ." The hope was that giving Congress such a power would help to unify commerce policies thereby making market exchanges more efficient and less costly.

Though the clause clearly gave Congress some power over commerce, it was unclear just how much. It was also unclear what constituted commerce. The Gibbons case clarified some of these issues under a decision issued by Chief Justice John Marshall, who as we have seen from earlier opinions was a strong supporter of federalism, but also a nationalist.

The case involved two potentially competing commercial enterprises – one with a state license to operate and one with a federal government license with the licenses granted respectively under state and federal statutes. Ogden's lawyer contended that states often passed laws on issues regarding interstate matters and that states should have fully concurrent power with Congress on matters concerning interstate commerce. The monopoly licensed under state law, therefore, should be upheld. Gibbons' lawyer, Daniel Webster, argued that Congress had exclusive national power over interstate commerce according to Article I, Section 8 of the Constitution and that to argue otherwise would result in confusing and contradictory local regulatory policies.


The key question before the Court was what was meant by the term “interstate commerce”. Marshall defined it to mean “that commerce which concerns more states than one” and held that only the completely internal commerce of a state could not be regulated by Congress, but was reserved for regulation by the state itself. In answering this question the Court greatly strengthened the powers of the national government. It also opened the door to further interpretation of the commerce clause because of changing circumstances. For example, what happens in more current times when a state regulates a new industry because it is operating solely within the state? What happens when it begins to expand outside the state?

Following the Courts definition in Gibbons, a long line of cases held that where the activity sought to be regulated both begins and ends, and at all times takes place within a single state, Congress has no power to regulate. These decisions were concerned only with the geographic locality where the activity took place.

The Court also soon retreated from the broad definition of “commerce” that Marshall gave in Gibbons as “any intercourse” between the states even going as far as saying that manufacturing or farming were not considered farming.

Federalism in the United States has evolved quite a bit since it was first implemented in 1787. In that time, two major kinds of federalism have dominated political theory.

The first, dual sovereignty (also referred to as dual federalism) holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

The second, cooperative federalism, asserts that the national government is supreme over the states, and the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause have entirely different meaning.

Dual federalism was the prevailing view until the 1930’s when the economic depression made it necessary for broad sweeping national initiatives and reform. Dual federalism is not completely dead, but for the most part, the United States' branches of government operate under the presumption of a cooperative federalism. The shift from dual to cooperative was a slow one, but it was steady.

One of the earliest examples of a shift was the Supreme Court's Gibbons v. Ogden decision, which we discussed above, which ruled in 1824 that Congress's right to regulate commerce under the Commerce Clause could be "exercised to its utmost extent, and acknowledges no limitations, other than those prescribed in the constitution..." The Court did not expand the powers of the national government much over the next century. But in the 1930's, a wave of feeling of social injustice began to sweep the nation as the Depression began. Federal laws concerning labour, civil rights, and civil liberties began to take on a new priority. National laws, and amendments to the Constitution, have taken away many powers from the states, such as the ability to significantly restrict voting rights or the ability to draw political districts at the whim of political party bosses.


In more recent times the dual sovereignty doctrine has gained popularity and some politicians in the U.S. advocate a return to an emphasis on dual federalism as a returning of power to a government closer to the people, and hence under better popular control. There are many problems with this, however, as many states found in the Reagan era. President Reagan was a strong advocate of states rights, and wanted to return many of the powers taken up by the federal government to the states. But in many cases, this created more bureaucracy, as each of the 50 states had to establish offices to administer programs the federal government handed over. Worse, the transition was often unfunded, meaning that the costs of the programs were shifted to the states, but federal taxes were not reduced accordingly, leading to a higher tax burden on the people as states raised taxes to fund the programs. Worse, when federal taxes were cut, federal aid to the states that did exist was cut as well.

The Constitution does provide some very specific powers to both the states and the federal government. These powers are traditionally divided into three categories.

Reserved powers are those that have been reserved specifically for the states or are of a traditionally state scope. These consist mostly of police powers, such as providing fire and police protection, establishment of health regulations, licensing, and education.

Granted powers, also known as express, enumerated, implied, delegated, and inherent powers, are those specifically listed in Article 1, Section 8, such as the power to coin money, to raise an army and navy, to provide for patent and copyright protections, to establish a post office, and to make treaties and war with other nations. An express, delegated, or enumerated power is one specifically listed; an implied or inherent power is one that exists to carry out an express or enumerated power. For example, Congress can raise an army; this implies the ability to specify regulations concerning who can join the army.

Concurrent powers are those held to some extent by both the federal and state governments. Both, for example, have taxation power, the ability to construct and maintain roads, and other spending for the general welfare.

Residual Powers are those powers that are assumed to be held by one tier of government because the constitution is silent on these powers. Article 10 provides residual power to the States under the U.S. Constitution.

Many things are denied of both or either levels of government. States, for example, have no authority to coin money or wage war. Neither may pass a bill of attainder or any ex post facto law. Much of the Bill of Rights applies restrictions to both states and the federal government, while all of the Bill of Rights applies restrictions to the federal government. Note that the Bill of Rights originally had no effect of restriction on the states, but judicial interpretation of the 14th Amendment's due process clause has incorporated much of the upholding of civil rights to the states.


The Decline and Rise of Dual Sovereignty

During the one hundred years after Gibbon’s that the Court increasingly relied on the dual sovereignty doctrine (roughly 1830s to 1840s) it considered approximately 1400 cases that touched upon the Commerce Clause. However, almost all of these cases dealt not with Congress’s intrusion on the states, but on state regulations that were perceived on intruding on federal regulatory power. This is probably because Congress until the 1930s was very much a Congress that legislated infrequently. The Courts decision in Gibbon’s is still certainly valid, but the almost unrestrained enthusiasm of the Court for Congress’ commerce powers was never fully embraced consistently by the Supreme Court until the late 1930s – again because of a national crisis – the Economic Depression. Here are cases that illustrated that transition in the 20th Century.

Hammer vs Dagenhart (1918) considered the constitutionality of the Child Labor Act, which banned items produced by child labour from interstate commerce. Adopting the formal approach, the Court saw the Act as unconstitutional attempt to regulate a purely local matter, workplace conditions. The harm of child labour, the Court concluded, had nothing to do with interstate commerce and thus fell outside the reach of congressional power.

N.L.R. B. vs Jones (1937) represented an important turning point in the Court's Commerce Clause jurisprudence. The year before, in a case called Carter v. Carter Coal Co., the Court had invalidated a New Deal program that attempted to regulate the wage and hour practices of coal companies on the ground that such practices were "local" and had only an "indirect" effect on interstate commerce. Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen (they failed in this attempt). In N.L.R. B. v. Jones, Chief Justice Hughes and Justice Roberts side with the government in voting to uphold an N.L.R.B. action ordering the reinstatement of union organizing employees protected by federal law at a Pennsylvania steel plant. Over the objections of four dissenting justices who called the interstate effects of the regulated activity "too indirect," the Court concluded that the steel industry is an interstate web of activities stretching from the iron mines of Minnesota to the steel plants of Pennsylvania and thus the manufacturing of steel is properly reachable under the Commerce Clause.

U. S. vs Darby (1941), in unanimously overruling Hammer vs Dagenhart, demonstrated how much the Court had changed its approach to Commerce Clause in a generation. Using a "substantial effects" test, the Court upheld the Fair Labor Standards Act--an important piece of legislation that effectively set national minimum wage and maximum hour laws by prohibiting the interstate shipment of goods manufactured in violation of the federal standards.

Once having established that congressional exercises of power were valid if shown to regulate activities "substantially affecting" interstate commerce, the Court proceeded to open up more opportunities for exercise of the commerce power by holding that an activity only trivially affecting interstate commerce might nonetheless by regulated if all of the regulated activities of various individuals--taken cumulatively--had substantial interstate effects.


In Wickard vs Filburn (1942), in your reading, the Court upheld a $117 penalty imposed on a Ohio farmer for growing wheat on 12 more acres than he was permitted to under the Agricultural Adjustment Act.

Achieving Social Welfare through the Commerce Clause-A National Police Power?

Congress is not given express authorization to legislate for police power purposes, i.e., to legislate on a national basis concerning the morals, health, well being of the people. However, Congress' power to "regulate" interstate commerce is plenary, is complete in itself, and is subject only to constitutional limitations. Congress can legislate to protect interstate commerce and prevent it from being misused. The Courts especially in the period from 1937 until the 1990s would generally not probe the motive or purpose of Congress' regulation of interstate commerce. Congress, therefore, can achieve social welfare objectives by using broad commerce powers.

Pretext Principle – Remember that in McCulloch, Justice Marshall indicated that if Congress uses its delegated powers as a pretext for regulating activities properly in the domain of the states, the Court would hold the law unconstitutional. In Hammer v. Dagenhart (1918), (later overruled by the Supreme Court) the Court held that federal regulation of interstate transit of goods produced by child labour was an unconstitutional intrusion on state police powers and violative of the Tenth Amendment.

Protective Principle- The modern view is that it is accepted that Congress can legislate for social welfare objectives using its commerce power. It can close the channels of interstate commerce activities and regulate locally to protect interstate commerce from pollution and misuse. The Tenth Amendment, insofar as federal regulation of private activity is concerned, is a truism-anything no delegated is reserved to the states. But if Congress exercises its delegated powers, express or implied, the Tenth Amendment is no limitation on Congress' power to regulate private activity. Here are two examples.

o Congressional wage and hour legislation prohibiting interstate transit of goods produced under substandard conditions and regulating the wages and hours of constitutional. Congress can close the channels of interstate commerce, .can regulate locally to effectuate the prohibition. Congress can also legislate to prevent unfair competition which wood adversely affect interstate competition. United States v. Darby (1941) (overruling Hammer v. Dagenhart)

o In Heart of Atlanta Motel v. U.S. (1964) the Supreme Court held that Congress may prohibit racial discrimination in places of public accommodation serving interstate travellers since Congress could rationally conclude that such discriminatory service impedes interstate travel by Africa Americans. The fact national police power purposes, i.e., terminating racial discrimination, are accomplished by such legislation does make the legislation an improper use of the Commerce Clause.

The Affectation Doctrine


Let’s take a moment to try to review the tests that the Court is generally referring to in determining whether Congress has power to regulate local activities to the extent such regulation is necessary and proper to fostering and protecting interstate commerce. The fact that the federal law has the purpose or effect of displacing state police power will generally not affect the validity of the federal law though the more recent decisions of the Court raise some question about that premise (see infra).

a. Direct-Indirect Test - Prior to the New Deal, Congress was limited to regulating only those local activities having a "direct" effect on interstate commerce. This excluded any consideration of the magnitude of the effect of local activities on interstate commerce, limiting the inquiry to the manner in which the effect was brought about.

b. The Modern Affectation Doctrine – Substantial Effects - Congress may reach even local activity if it can rationally conclude that such activity has substantial adverse effect on interstate commerce, regardless of whether the effect is "direct" or "indirect". Again, the fact that the law has the effect of displacing state police power regulation does not affect the validity of the federal law, necessarily.

c. Cumulative Effects Doctrine - In determining the adequacy of the effect, Congress may consider the cumulative effect of all the activities regulated even though the contribution of a particular activity may be trivial.

The following are examples of how these tests have been applied to broaden the power of the U.S. Congress to enact laws that might not directly appear to be “commerce”..

In Wickard v. Filburn (1942) we saw that a farmer's own contribution to the demand for wheat through home consumption may be trivial by itself but that is not enough to remove him from the scope of federal regulation where his contribution, taken together with that of many others similarly situated, is far from trivial. (cumulative effects)

In the case of Katzenbach v. McClung (1964) it was found that Congress may prohibit racial discrimination in restaurants serving food which has travelled through interstate commerce since Congress could rationally conclude that such discrimination causes less interstate goods to be sold, that it impedes interstate travel by African Americans and causes business to suffer generally. Even a small restaurant whose purchases of interstate goods is insignificant in itself may be regulated since the cumulative effect with others similarly situated is substantial.

In Perez v. United States (1971), the Court held a congressional statute prohibiting the use of extortionate credit transactions is within the power of Congress to regulate interstate commerce. A class of activities may be properly regulated by Congress in spite of its police power purpose without proof that the particular intrastate activity again~ which a sanction is laid has an effect on interstate commercial criminal activity, traditionally subject to local regulation a total but not a specific impact on interstate business, su activity may be regulated pursuant to the commerce clause.


The Surface Mining Act of 1977 establishing an extensive federal-state program for curbing the negative effects of coal strip-mining is a constitutional exercise of the Commerce power. The congressional finding that surface coal mining affects interstate commerce is rational because: (1) coal is commodity that moves in interstate commerce, (2) surface mining standards serve to prevent destructive interstate competition, and (3) environmental hazards have effects in more than one state. Hodel v. Virginia Surface Mining Reclamation Association (1981).

A federal law, designed to encourage energy conservation by electric utilities, was held to be a valid exercise of the federal commerce power. The legislative history establish that Congress could reasonably conclude that regulation of local power transmission was a reasonable means of energy conservation given the interstate nature of the generation supply of electric power. Federal Energy Regulatory Commission v. Mississippi (1982).

The Modern Revival of Limited Dual Sovereignty

Congresses’ power to use the Commerce Clause for social policy reasons was called into questions by the 5-4 decision of the Court in United States v. Lopez. It was the first United States Supreme Court case in 53 years (since the Economic Depression of the 1930-40s) to set limits to Congress's power under the Commerce Clause of the United States Constitution. The Lopez case raises serious questions about just how far the Court was willing to go in endorsing the scope of Congressional Commerce Clause Authority. Lopez held that the Gun-Free School Zones Act of 1990 was unconstitutional. There as in Morrison, the court stressed, "enumerated powers" that limit federal power in order to maintain "a distinction between what is truly national and what is truly local." Lopez therefore limited the scope of the Commerce Clause to exclude activity that was not directly economic in nature, even if there were indirect economic consequences. This precedent takes special significance in cases where the federal government is attempting to limit private conduct. Commentators are still postulating on how other established federal laws enacted pursuant to the Commerce Power might be affected, such as the Clean Water Act. The argument from the states rights side can be made that a limiting of federal power is necessary to establish a greater threshold for governmental accountability and revitalizes the role of the states in public policymaking.

In United States v. Morrison (2000), the Court dealt a second modern blow to Congress’ power to use the Commerce Clause as authority for social policy legislation that is applied to the states. It dealt with Congresses’ enactment of the Violence Against Women Act and its application to the states. With regard to the Commerce Clause, the majority said that United States v. Lopez (1995) was the controlling precedent. The majority concluded that acts of violence such as those that VAWA was meant to remedy had only an "attenuated" effect, not a substantial one, on interstate commerce. The government, however, argued that in the aggregate "a mountain of evidence" indicated that these acts did have a


substantial effect; for this proposition it relied on Wickard v. Filburn (1942), which held that Congress could regulate an individual act that lacked a substantial effect on interstate commerce if, when aggregated, acts of that sort had the required relation to interstate commerce. Relying on Lopez, the majority replied that the aggregation principle of Wickard did not apply because economic effects of crimes against women were indirect, and therefore could not be addressed through the Commerce Clause.

The Court in Morrison explained that the need to distinguish between economic activities that directly and those that indirectly affect interstate commerce was due to "the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority." Referring to Lopez, the Court said: "Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur." The majority further stated, "[I]t is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Justice Thomas's concurring opinion also expressed the concern that "Congress [was] appropriating state police powers under the guise of regulating commerce."

But a five years later the Court relied on Wickard in the 2005 case of Gonzales v Raich, upholding the power of Congress to authorized seizure of doctor-prescribed marijuana allowed under the laws of California and other states, but not by Federal Law. The Court in Gonzales noted that local use of medical marijuana had a cumulative effect on the black market for marijuana.

Maybe what we can glean from these cases is a subtle shift back toward dual sovereignty principles at the Court. It could be that this is not a broad sweeping rescission of Congress’ Commerce Clause powers vis-à-vis state regulatory power. Instead today’s Supreme Court is perhaps relying a bit on its own social policy principals, or at least the conservative majority, which would be very much not in favour of a judicial endorsement of “gun regulation”, but very much in support of regulating drugs. It is certainly too early to say that the Dual Sovereignty Doctrine as it once stood has been fully accepted by the Court as anything more than an ad hoc doctrine to be referenced sporadically.

Dynamic Influences on the Court

This section about the Commerce Clause has illustrated how delicate the issue of sovereignty is between the states and the federal government. There have been an impressive number of decisions by the Supreme Court on aspects of the Commerce Clause, but there are hundreds of other cases applying other clauses and addressing issues of sovereignty. Many of these decisions conflict leaving a historical trail that is neither neat nor consistent. Why is it so? Is the Supreme Court fickle? Is it because the Constitution is vague? Is it because of changing political philosophies in the country? There is no one answer – but on the latter point of political philosophies it quite true that who has the power of the Presidency has significant indirect influence on the Supreme Court. Remember


S T U D Y T A S K 2

that with the consent of Congress it is the President who selects appointees when there is a vacancy and President’s tend to choose appointees who have a judicial record that is not incongruent with the political record of the President. Sometimes a president will have the opportunity to appoint more than one appointee to a vacant position. The appointment power can have a profound influence on the Court over several generations. This has been most illustrated over the past seventy years at key historical points. From 1932 through 1948, President Roosevelt and President Truman, both liberal democrats, filled ten vacancies on the Court including the appointment of three Chief Justices. This paved the way for a forty year period when the Court endorsed Congress’ significant use of the Commerce Clause to address social issues. The period of 1968 to 1992 and 2001 to 2008 was dominated by more conservative Republican Presidents with political agendas that sought to reduce “big government” by identifying a range of topics that were to be dealt with exclusively or predominately by the States. During this same period we have seen the Court move away from or redefine precedent “Commerce Clause” case such as it did in Lopez. So bear this in mind as you try to understand the judicial system of the United States. While its decisions may be above politics, they are not beyond politics.

Under what authority, state or federal, did Ogden operate his steamboats? Gibbons?

What argument did Ogden use to support his license to operate steamboats? How about Gibbons?

The background information in Gibbons v. Ogden states that Gibbons relied on the Commerce Clause of Article I, Section 8 of the U.S. Constitution to justify his case. If Ogden wanted to use the U.S. Constitution to back up his case, what section or amendment might he use? Why?

The Constitution gives Congress the power to regulate commerce "among" the several states. Does that mean "between" the states, or could it also mean "among the people"--that is, even within a state?

What is "commerce"? Is it just the buying and selling of goods, or should it be interpreted to include, as Chief Justice Marshall says in Gibbons, all the branches of commercial intercourse, including the manufacture and transportation of goods?

What would have been the economic future of the United States if Gibbons had gone the other way?

N.L.R.B. vs Jones, along with U. S. vs Lopez years later, is generally considered one of the two key turning points in Commerce Clause jurisprudence. What makes it so?


Does the "cumulative effects" approach of Wickard represent a major expansion of the "substantial effects" test as employed previously?

Ot her Powers o f the Federa l Government th ro ugh the Const i tu t ion

The Commerce Clause has been a useful mechanism for Congress to not only regulate commerce but to introduce legislation with social and public welfare implications. The 14th Amendment to the Constitution is another means. The Fourteenth Amendment is one of the post-Civil War Reconstruction Amendments that was first intended to secure the rights of former slaves. It was proposed on June 13, 1866 and ratified on July 9, 1868.

The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857), the “slavery” case we read in Topic 1, which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection1` under the law to all people within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States. Its Due Process Clause has been used to apply most of the Bill of Rights to the states.

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring Americans of African origin from juries (Strauder v. West Virginia (1880)) and discriminating against Chinese-Americans in the regulation of laundry businesses (Yick Wo v. Hopkins (1886). Later though the Court regressed and held that states could impose segregation so long as they provided equivalent facilities— which led to the so-called "separate but equal" doctrine that was the reality of the post-Civil War United States until the 1960s. The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), holding that the states could force private parties to discriminate by prohibiting an integrated college from admitting both black and white students. As with the Commerce Clause the Equal Protection Clause would re-emerge as a viable constitutional mechanism for Congress to legislate for the public welfare in areas that were once arguably within the sovereignty of the states.

The Incorporation Doctrine is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. It was not until the 20th Century that a series of Supreme Court decisions began interpreting the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

We will read more about the14th Amendment’s affect on state sovereignty in Part III of the course (Topics 10-12, Individual Rights), but for now it is enough to know that in addition to enumerated powers and the Commerce Clause of Article 1, Section 8, Congress has other constitutional authority to legislate matters that were previously thought not applicable to the states.


In the first part of the next topic we will conclude our examination of the relationship between the legislative authority of the states and the Congress by looking again at the Commerce Clause, but from the perspective of the authority of the states to legislate and regulate.

Rev iew Quest ions

1. Thomas Jefferson, when he was president in the early 19th Century, had serious doubts as to whether the Constitution gave him the power to acquire a substantial tract of land from France that is now comprises about 23 percent of the United States. He went ahead with the deal anyway. Was the Louisiana Purchase constitutional? What might be the constitutional source for the power to acquire lands based what you know about executive and legislative powers in the U.S. Constitution – enumerated, implied and inherent?

2. How does Congress distinguish, as Morrison requires it to do, between "what is truly national and what is truly local."?

3. The Commerce Clause was meant to clarify who had authority over interstate commerce; however, like most of the U.S. Constitution, the clause is stated in general terms that leaves open the possibility for interpretation. For instance, in Gibbon’s there was a question about whether the transport of people constituted commerce. Try to think of another circumstance where the application of this clause would be unclear.

4. Gibbons v. Ogden appears to be a local dispute between two businessmen. However, the decision in this case is one of the most important in the constitutional history of the United States. Please explain why. Was its importance diminished over time? Is it stil relevant today in the Supreme Court’s adjudication of Commerce Clause disputes?

5. Which of the two basic approaches to Commerce Clause analysis is better, the "empirical test" (e.g., "substantial effects") or the categorical approach that seeks to label effects as "direct" or "indirect" or activities as "local" or "national." What are the advantages and disadvantages of each approach?

6. Should the Court examine the motive of Congress in enacting legislation under its commerce power, or just analyse the connection of the regulation to interstate effects? In Hammer vs Dagenhart, the Court was influenced by its conclusion that Congress really legislated because it disapproved of child labour, rather than out of any genuine concern for how child labour was affecting the national economy or the dangers posed by articles produced by child labour. Should the motive of Congress been a factor in the Courts review of the legislation?

7. Lopez and Morrison raise serious questions about the ability of Congress to enact laws providing federal punishment or federal remedies for conduct traditionally regulated under state criminal codes. Which of the following are likely to be upheld?: (1) a law making "carjacking" a federal crime? (2) a law making "drive-by shootings" a federal crime? (3) a law


making it a federal crime to carry out any action designed to terrorize? (4) a law making child molestation a federal crime? (5) a law making child pornography a federal crime?

Seminar Top ic Topic: Comparative Analysis and Discussion about the relationship between the states and national legislatures in Australia and the United States The United States and Australia each have a federated form of government. You have an understanding of the roles and relationship of the states and the federal government in the United States; the sources and parameters of their respective sovereignty and the controversies that have arisen. Australia has a federated system of government with similarities to the United States as well as some significant differences. The two governments, developed more than a century apart, have a colonial background with a common “mother” country from which each borrowed parts of its law. The topic for this week’s seminar is – a comparative analysis of the relationship between the states and national legislatures in Australia and the United States. You should be prepared to discuss the following questions. 1. What is the constitutional basis and authority for the national

legislature in each nation. a. Are their powers enumerated? Implied? Is there similarity

between the legislative provisions in the two constitutions or more dissimilarity?

2. What is the constitutional basis and authority for the states in each

country? a. How specific is each of the constitutions on the role of the

states? b. Is sovereignty and the role for the states more clearly

identified in one constitution more than the other? c. Are there advantages to a lack of specificity?

3. Are there distinctions between the texts of the two constitutions in how commerce is regulated? What are the relative advantages of each Constitution in terms of regulating commerce?

4. Through your reading of each constitution do you feel that the framers

of the respective constitutions anticipated that there might be controversies between the state and the national legislatures? Do you


feel that there might be important factors of history that distinguish the content of each constitution? Explain.

5. You are the world’s most highly regarded constitutional scholar. You

are asked by the governments of Australia and the United States to recommend changes to reduce confusion about the sovereignty of the federal and state governments. What recommendations would you make? If the terms of the constitutions should remain unchanged please explain why. Be as specific as possible about why there should or should not be change. Would you borrow any concepts from one Constitution to strengthen the second?

The resources available to you are the materials that you have covered in this and previous topics and for information about Australia you should review relevant provisions of the Constitution of Australia (available at http://www.aph.gov.au/senate/general/constitution/) . You may research other material if you feel that is necessary. Prepare an outline of no more than two pages to assist you in discussing this topic. The outline will be provided to the instructor, who will also moderate the discussion.


Key Constitutional Grants of Powers 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 Defence 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 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 define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; 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 a 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; 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.


STATE AND LOCAL GOVERNMENT POWER IN AMERICAN

FEDERALISM

9 T O P I C



1. Introduction

2. State Power to Regulate Commerce

a. Early Historical Foundations

b. The Modern Focus: the Dormant Commerce Clause

i. Impermissibly discriminatory

ii. Excessive burdens on interstate commerce

c. Preemption by Congress

3. State and Local Government Power to Tax

4. Local Community Government and Law

a. Constitutional Authority for Local Governance

b. Role of County and Municipal Governments



How the power of states to legislate is limited by the Dormant commerce Clause.

Tests for determining whether the Dormant Commerce Clause is activated because of state action that is discrimination and unjust.

How the privilege and Immunities and Sovereignty Clauses may limit state legislation.

Constitutional and statutory limits on a state’s power to tax.

The general organization of state and local governments.





Presc r i bed Read ing Granholm, Governor Of Michigan, Et Al. v. Heald (2005)

Hunt v. Washington State Apple Advertising Commission (1977)

Hunter v. Pittsburgh, 207 U.S. 161 (1907)

Declaration of Rights of Maryland

Article XI of the Constitution of Maryland

Article 25A, Annotated Code of Maryland , Section 5

Montgomery County Charter

Commerce Clause, U.S. Constitution, Article 1, Section 10

Privilege and Immunities Clause, U.S. Constitution, Article IV, Section 2

Supremacy Clause, U.S. Constitution, Article VI

The Tenth Amendment and Local Government, Yale Law Journal (2003)


Complete Auto Transit, Inc. v. Brady

Department of Revenue of the State of Washington v. Association of Washington Stevedoring Companies

I n t roduc t ion

While the national government can exercise only such powers as are expressly or impliedly delegated in the Constitution, states have inherent police power to act for the health, morals, and well-being of its citizens. When dealing with the constitutionality of state laws, therefore, the courts focus on constitutional limitations on state power. Such limitations may take the form of constitutional rights and liberties or limitations arising from the constitutional allocation of powers. In the previous chapter we looked at federalism from the standpoint of the Congress’ authority to bind the states. The focus of this topic is on federalism from the standpoint of the power of the states to legislate for the benefit of its citizens and to promote government policies. We will first look at where this boundary is shaped by what is called the “dormant commerce clause.” We will also touch upon three other clauses that can impact a states capability to legislate – including the Privileges and Immunities Clause, the Compact Clause and the Supremacy Clause. We will look at the authority of states to tax commerce. Then in the second part of this topic we will examine the structure of local government, its important role and constitutional authority.


Sta te Power to Reg u la te Commerce Historical Foundations Some constitutional powers are exclusively national, e.g., the power to declare war or to legislate for the District of Columbia. Other powers are shared by both the states and the federal government. If the power is concurrent, in some instances, where Congress has not acted to exclude the states, the states may regulate even though Congress, if it chose, could also legislate in the same area. In other instances, however, where Congress could act, the particular state regulation is proscribed by the constitutional grant of power to Congress. The rationalizing principle is that where a subject is by its nature national or where state regulation would place an excessive burden on national concerns, the states may not regulate in the absence of congressional authorization. The Nature of the Power-Exclusive or Concurrent The Commerce Power Is, at Least Partially, a Shared Power - The existence of a plenary power over interstate commerce in Congress is not necessarily inconsistent with the existence of a similar power in the states.

Primacy of Federal Regulation - When a state regulation conflicts with a federal law in a shared area or impedes the achievement of the federal objectives, the federal regulation must prevail by force of the Supremacy Clause which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... ... ... shall be the supreme Law of the Land ... ... ... "

The Nature of the Subject-The Cooley Doctrine - In the determination of whether a state regulation of interstate commerce is permissible, the Cooley doctrine focuses on the subject of the regulation. When subjects of commerce regulation are national in nature, i.e., require a uniform system or plan of regulation, they are not amenable to state regulation. Cooley v. Board of Wardens (1851) held that, in the absence of applicable federal legislation, a state may regulate local pilotage for navigation. The Cooley doctrine is criticized for focusing excessively on the subject of the state regulation rather than the nature of the regulation, i.e., its effect on interstate commerce. Nevertheless, it continues to be used as a test of the state power to regulate interstate commerce, but to a much lesser extent.

The Modern Focus: The Dormant Commerce Clause Doctrine Expressio unius est exclusio alterius in Latin means “the expression of one thing is the exclusion of another”. The courts have applied this view of statutory interpretation to the Commerce Clause to mean that even when Congress is silent, the Commerce Clause itself imposes some limitation on the ability of states to regulate when the state regulation affects interstate commerce. This is more commonly referred to as the Dormant Commerce Clause.


An early effort to reconcile national and local interests in regulating commerce focused on whether the state regulation imposed a "direct" or an "indirect" burden on interstate commerce. The test provided little indication of how burdens were to be classified as direct or indirect and the distinction has been abandoned. In determining whether a state regulation is barred by the negative implications of the Commerce Clause, the course of judicial interpretation has moved away from subject matter and nominalistic tests of direct and indirect interference with commerce to a two step inquiry. Courts now generally ask two questions:

(1) does the state regulation impermissibly discriminate against interstate commerce, or, (2) are the incidental burdens imposed on interstate commerce "clearly excessive in relation to the putative local benefits."

If the answer to either question is "yes", the state law is unconstitutional. The Modem Standards Interpreting and applying doctrines is never absolutely straight forward and such is the case with the unwritten Dormant Commerce Clause. It is a judicially created rule of interpretation that is flexible to the extent of the facts of the case and whether the court wants to be flexible for policy reasons. Nonetheless a court will always look to see if there is actual discrimination caused by the state action and whether the state action can be justified as legitimate and balanced against the magnitude of its impact on the Commerce Clause. Let’s look at both of these facets of the modern Dormant Commerce Clause analysis.

1. Discrimination

a. Purposeful Discrimination - A state law which purposefully discriminates against interstate commerce in favour of local interests is invalid regardless of the importance of the local interests involved. Simple economic protectionism is "virtually per se" invalid.

Common Market Philosophy. The central purpose of the Commerce Clause was the avoidance of state custom barriers and other economic barriers. The Constitution "was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Baldwin v. G.A.F. Seelig, Inc. (1935).

Political Rationale. When a law is framed so that its negative impact is directed solely at out of state interests, "legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state." South Carolina Highway Dept. v. Barnwell Bros. (1938).


Examples:

A state law prohibiting the sale of milk bought out of state at a price lower than the price set by law for the sale of milk in the state is unconstitutional. "When the avowed purpose of the [state law], as well as its necessary tendency, is to suppress or mitigate the consequences of competition between the states," it violates the Commerce Clause. Baldwin v. G.A.F Seelig, Inc. (1935).

b. Discriminatory Means - Even if a state regulation is intended to serve a legitimate police power objective, the law must regulate even-handedly. If a state statute discriminates against out of state commerce, "the state is required to justify it by showing overriding benefits as well as the absence of any non-discriminatory alternatives to achieve the state's substantial interest." Hughes v. Oklahoma (1979).

Less Burdensome Alternatives Doctrine: If the state could achieve its objectives by means which are less burdensome on the free flow of interstate commerce, the state must use those less burdensome alternatives. Examples: A state law which prohibits the importation of wastes from out of state for dumping in local landfills while allowing local traffic and dumping of wastes is unconstitutional. "[T]he evil of protectionism can reside in legislative means as well as legislative ends." While the law serves legitimate interests of the state, there is no reason to discriminate against interstate commerce. City of Philadelphia v. New Jersey (1978). A state statute forbidding the transportation out of state for sale of free-swimming minnows taken from waters within the state, but not restricting local sales, was held to violate the Commerce Clause. While conservation of natural resources is a legitimate state purpose, states may not seek to achieve this goal by choosing discriminatory means where non-discriminatory means are available. Hughes v. Oklahoma (1979). An order of the New Hampshire Public Utilities Commission, pursuant to a state statute, requiring New England Power to sell locally produced hydroelectric energy solely within New Hampshire in order to satisfy local needs is unconstitutional under the Commerce Clause. The Commerce Clause precludes a state from requiring that its residents be given a preferred right of access over out-of-state consumers to privately-owned national resources or the products derived there from. Such an exportation ban is the type of simple protectionist regulation that the Commerce Clause prohibits and places a direct and substantial burden on interstate commerce. Nothing in the Federal Power Act was found to authorize such


discrimination. New England Power Co. v. New Hampshire (1982). Nebraska's permit system limiting out-of-state export of ground waters to states not granting reciprocity for sale of its waters in Nebraska is unconstitutional. The law did not satisfy the "strictest scrutiny" applicable to facially discriminatory laws. While Nebraska has an "unquestionably legitimate and highly important" conservation and health interest in ground waters, the state failed to show that the reciprocity requirement was narrowly tailored to this end. Even if the water could be used most beneficially in another state, the reciprocity requirement could bar the sale. Sporhase v. Nebraska (1982)

c. Discriminatory Impact or Effects - The discriminatory impact or effect test is illustrated in one of the focus cases in your readings, Hunt v. Washington State Apple Advertising Comm'n (1977). In Hunt, even if a state law is even-handed in purpose and means, it may, in operation, impact more severely on interstate commerce than on local commerce. When such a discriminatory impact is proven, the burden is on the state " to justify it both in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake."

The state action in Hunt was a North Carolina state law requiring all closed containers of apples sold in the state to bear no grade other than the U.S. grade operates to discriminate against the Washington state apple industry. The law raises the costs of doing business in North Carolina thereby depriving Washington apple dealers of an economic competitive advantage over local sellers. Washington's apple industry is deprived also of its competitive marketing advantage resulting from displaying the superior Washington state grades. Even when considered as a law to prevent consumer deception, the law fails since marketing is permitted with no grades at all, sales in closed containers would apply only to wholesalers and brokers who are knowledgeable, and Washington state grades are in fact superior to U.S. grades. Finally, there are non-discriminatory alternatives to an outright ban such as requiring V.S. grades when other grades are used or banning state grades which are not equal to V.S. grades. Hunt v. Washington State Apple Advertising Comm'n (1977). Granholm v. Heald (2005) is another one of your focus cases which we will take a closer look at in examining the limits of state legislative power. It is also one of the most recent pronouncements on the dormant Commerce Clause. It is an important case because it came from a Supreme Court that was increasingly conservative on federal authority to utilize the Commerce Clause to legislate non-economic matters. In Granholm though the Court actually strengthened the dormant Commerce Clause. In the Granholm the Supreme Court struck down laws in Michigan and New York that barred out-of-state wineries from selling directly


to consumers. The majority opinion written by Justice Kennedy viewed these laws as classic trade barriers that violated the Commerce Clause, exceeded state power under the 21st Amendment, and were not necessary to advance the states’ interests in preventing underage access and collecting revenue. Most states in America regulate the sale of alcoholic beverages, including wine, through a three-tier distribution system. Separate licenses are required for producers, wholesalers, and retailers. The three-tier scheme is preserved by a complex set of overlapping state and federal regulations. No producer may sell and ship wine directly to a consumer. This prohibition on direct sales substantially limits consumer access to wine. There are about 3,000 wineries in the country, and only 150 have broad national wholesale distribution. Small wineries, especially new start-up businesses, cannot get wholesale distribution, but depend for their economic survival on direct shipping. Consumers who live in the 24 states that prohibit direct shipping simply cannot get much of the wine produced in the country, and must buy their wine locally. Such was the case in Michigan where wine from out-of-state producers can be distributed only through the State's three-tier system. Producers may sell only to licensed in-state wholesalers, who may sell only to in-state retailers, who resell the wine to consumers. However, wine produced by the approximately 40 in-state wineries may be sold directly to consumers without going through a wholesaler, and may be shipped to their homes. The Court held that this system discriminated against interstate commerce. Michigan allows in-state wineries to sell and ship wine directly to consumers, subject only to a licensing requirement. Out-of-state wineries, whether licensed or not, face a complete ban on direct sales. The differential treatment requires all out-of-state wine, but not all in-state wine, to pass through an in-state wholesaler and retailer before reaching consumers. These two extra layers of overhead increase the cost of out-of-state wines to Michigan consumers. The cost differential, and in some cases the inability to secure a wholesaler for small shipments, can effectively bar small wineries from the Michigan market. New York's licensing scheme was somewhat different. It also channels most wine sales through the three-tier system, but it too makes exceptions for in-state wineries. As in Michigan, the result is to allow local wineries to make direct sales to consumers in New York on terms not available to out-of-state wineries. Wineries that produce wine only from New York grapes can apply for a license that allows direct shipment to in-state consumers. The New York law was unclear, but appeared to allow (at least on paper) an out-of-state winery to earn the right to sell and ship directly to consumers if it established a staffed branch office and storeroom within the state. Since the cost and regulatory burden would be prohibitive, the Court held that this was just an indirect way of subjecting out-of-state wineries to the three-tier system and granting in-state wineries access


to the State's consumers on preferential terms. In any event, the Court noted that States cannot require an out-of-state firm to become a resident in order to compete on equal terms, citing Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 72 (1963). The Court held in clear and powerful language that these schemes violated the Commerce Clause because they mandated differential treatment of in-state and out-of-state economic interests that benefitted the former and burdened the latter. The principle of free trade among states was “essential to the foundations of the Union.” States may not close its markets to non-residents nor give competitive advantages to in-state businesses. Citizens have the right to have access to the markets of other States on equal terms. The Court brushed aside as “unproven” the States’ argument that banning direct shipments was necessary because of the risk of increased access by minors and tax evasion. The Court relied on a study by a federal government scientific agency demonstrating such fears were unfounded. The Court then addressed a Commerce Clause issue not before it the constitutionality of “reciprocity” laws. Some states allow direct shipping only from states that allow reciprocal direct shipping. The Court suggested that these laws, too, violated the Commerce Clause. The Commerce Clause does not permit states to negotiate with each other regarding favoured or disfavoured status for their own citizens nor join together into trade zones that exclude products from disfavoured states. This would also violate the Compact Clause of the Constitution (see Compact Clause note below) The Court next turned to section 2 of the 21st Amendment. It extensively reviewed fifty years of legal and political history leading up to the repeal of Prohibition, and concluded that the aim of the Twenty-first Amendment was to allow States to create and maintain an effective and uniform system for controlling the distribution of liquor. It gave states power to require sellers of alcohol located outside the state to abide by the same rules as those within the state, but did not give state the authority to create non-uniform distribution rules that discriminated against non-residents and favoured in-state producers. The 21st Amendment cannot save a discriminatory law. The opinion immediately affects only a few states whose laws explicitly discriminate concerning shipping, by allowing in-state but not out-of-state wineries to do so. However, the language of the opinion is broad and its implication is that all kinds of state laws regulating wine sales may violate the Commerce Clause if their practical effect is to burden interstate commerce and provide economic benefits to in-state wineries.


2. Undue Burdens-Ad Hoc Balancing

Both the Hunt v. Washington State Apples Advertising and Granholm v. Heald cases also illustrate a balancing analysis by the Court of when a legitimate state need might offset any discrimination in interstate commerce. In Granholm both New York and Michigan argued that they needed their alcohol regulation laws to protect children. In determining if a non-discriminatory state regulation of interstate commerce is valid, the Court balances the local interests in maintaining the regulation against the burden on the free movement of interstate commerce. This approach inquires into: (1) the nature and function of the regulation; (2) the character of the business involved; and (3) the actual effect on the flow of commerce. As a result of this inquiry, a court may conclude that a state law that burdens interstate commerce may be sustained because the regulation pertains to matters peculiarly local and does not unduly infringe the national interest in maintaining freedom of commerce across state lines.

a. Important State Interests - Certain state interests receive greater

weight in the balancing test, e.g., health, safety, prevention of fraud, conservation of resources, regulation of highways.

b. Trade, Conservation, Environment - A state may regulate

incoming and outgoing commerce in goods pursuant to its interests in protecting the health, safety, and wellbeing of its citizens, including the economic well-being of citizens. But the states cannot hoard their resources or adopt laws that are essentially protectionist. It cannot use means which, while rationally designed to achieve permissible police power objectives, excessively burden the free flow of interstate commerce.

Here are some further examples of this balancing principle. An Arizona statute requiring a grower of cantaloupes to package its produce in the state at an added cost of $200,000 was held unconstitutional. The state interest in having the produce identified with the producing state was viewed as minimal and less substantial than the cost burdens on the grower. Pike v. Bruce Church, Inc. (1970). A state ban on plastic nonreturnable milk containers was held not to violate the Commerce Clause. The statute did not discriminate between interstate and intrastate commerce, but rather prohibited all milk retailers from selling their products in plastic containers. The incidental burden imposed on interstate commerce, i.e., the statute was more burdensome on the out-of-state plastics industry than the Minnesota pulp wood industry, was not excessive in light of the local benefits achieved. The state demonstrated substantial interests in promoting conservation of energy and other natural resources and easing solid waste disposal problems. Most out-of-state dairies package their products in more than one type of


container and it was only minimally inconvenient to conform to the particular packaging requirements of Minnesota. Minnesota v. Clover Leaf Creamery Co. (1981). The Illinois Business Takeover Act imposing restrictions on corporate takeovers beyond those imposed by federal law is unconstitutional. Applying a balancing test, the Court held the state law excessively burdened interstate commerce. The ability to block nationwide tender offers substantially burdened interstate commerce and "directly" regulated commerce outside the state. The state interests were deemed speculative. Edgar v. MITE Corp. (1982).

c. Transportation - A state may regulate traffic passing through the state in order to achieve permissible police power objectives. State highway laws enjoy a heavier presumption of validity given the historic and local interest in highway management. But the states may not regulate where the national interest requires uniformity of regulation, nor otherwise excessively burden the movement of interstate commerce. State laws granting exceptions in favour of local interests are more closely scrutinized. State adoption of a regulation more burdensome than that used by surrounding states also increases the likelihood of its being held unconstitutional. Example: An Iowa statute generally prohibiting the use of 65 foot double-trailer trucks within its borders was held to impose an unconstitutional burden on interstate commerce. While the Court accords special deference to state legislative judgments regarding highway safety regulations, in the present case the state did not prove that its safety interests justified the significant burden on efficient and safe interstate transportation. Studies indicated that the 65-doubles are safe and that the Iowa law would impair severely trucking firms using interstate highways. The use of smaller trucks being driven through the state or larger trucks being driven longer distances to bypass Iowa increased the danger of traffic accidents. Various exemptions in the state statutory scheme benefited only state residents while shifting to neighbouring states many of the costs associated with the statutory requirement. Kassel v. Consolidated Freightways Corp. (1981).

State as Market Participant - When the state acts, not as a regulator but as a participant in the marketplace, it is not subject to the ordinary constraints of the Commerce Clause. The negative implications doctrine does not prohibit the state from discriminating in favour of its own citizens.

Examples:

A state law discriminating in the sale of cement marketed by the state (i.e., preference for in-state residents) does not violate the Commerce Clause. The negative implications of the Commerce


Clause do not apply when the state acts as a market participant rather than as a market regulator. The historical purposes of the Commerce Clause and respect for state sovereignty indicate that any restraint should come from Congress rather than from the courts. Reeves v. Stake (1980). An executive order of a mayor requiring all construction projects funded wholly with city funds or with city and federal funds be performed by a work force at least half of which are bona fide residents of the city does not violate the Commerce Clause. Since the city acted as a market participant rather than as a regulator, the negative implications of the Commerce Clause do not apply. The impact of the law on out of state firms and residents is relevant only if the state is regulating the market. Insofar as federal funds were used, federal statutes and regulations permitted the parochial favouritism in the order-Congress can exempt states from the negative implications of the Commerce Clause. White v. Massachusetts Council of Const. Employers (1983).

Protecting Personal Mobility

The Commerce Clause - has been used to invalidate state restrictions on the free movement of persons into the state.

Example: A state statute making it a misdemeanor to bring an indigent person into the state was held an unconstitutional burden on interstate commerce. While the influx of indigent migrants might burden the state, the problem of indigency is a national burden which must be shared and no state can isolate itself. Edwards v. California (1941).

Interstate Privileges and Immunities Art. IV, Section 2, of the Constitution, providing that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," has been interpreted as a prohibition against unreasonable discrimination against out-of-state citizens in regard to fundamental national interests and could possibly be used as an alternative or to supplement a claim under the Commerce Clause.

The term "citizens" does not include corporations. State A must treat the citizens of state B in the same way it

treats its own citizens with the exception that some reasonable distinctions such as a slightly higher fishing license fee for out-of-state fishermen to pay state administration and conservation costs may be justifiable.

But Art. IV, § 2, does not apply to all forms of interstate discrimination. It applies only if fundamental national interests are burdened.


The view in the early years of the United States was that the states actually create rights. Once created, if fundamental, they have to be afforded to all citizens, even those from other states. The modern view is that states can treat in-staters and out-of-staters differently, but only when there’s a valid reason for the discrimination, and not just because they are from out-of-state. This means that the discrimination has to serve a substantial purpose in fixing the problem caused by the out-of-staters. When a state has a policy that ‘facially’ is not discriminatory but has the effect of burdening out-of-staters, it can be a violation of the clause. A violation of the clause usually requires a showing that there is a discriminatory intent, so effect alone is not usually enough. The key is whether there is a fundamental national right basic to national unity that would be violated by the action of the state.

Examples: A state statute requiring preferential employment treatment of residents in oil-or gas-related jobs was held to violate the Art. IV Privileges and Immunities Clause. Non-residents were not the peculiar source of the evil attacked, i.e., high unemployment among residents. Even if non-residents were the peculiar source of the evil, the broad employment preference given all residents was too loosely related to the goal of aiding unemployed residents. The state's interest in the oil and gas was inadequate justification for the discrimination. Hicklin v. Orbeck (1978). A state's imposition of substantially higher wild animal hunting license fees on non-residents than on residents was held not to violate the Article IV Privileges and Immunities Clause. Elk Hunting is not a fundamental interest, so it does not fall within the scope of the Art. IV - Privileges and Immunities Clause. The distinction between residents and non-residents is a rational means of preserving a finite natural resource. Baldwin v. Fish & Game Comm 'n of Montana (1978).

Distinction between Clauses – the following table shows the difference between the often used Dormant Commerce Clause and the less utilized Privileges and Immunities Clause.


Dormant Commerce Clause Privileges & Immunities

Clause Subject matter is interstate commerce

Subject matter is an individual’s treatment in a foreign state

Anyone can bring claim, but must be an individual, not a corporation

Only out of state citizens can bring a claim

Issue is the effect on interstate commerce

Issue is Π’s treatment by foreign state

Market Participant Exception No such exception

3. When Congress Speaks – the Supremacy Clause and Preemption

a. Preemption CONFLICT Under the Supremacy Clause (Art. VI), if a state regulation of interstate commerce conflicts with a federal regulation, the state law is invalid. Further, Congress in the exercise of its plenary commerce power may prohibit a specific form of state regulation. The Court has tended to recognize a presumption against preemption. INTENT TO PREEMPT In the absence of conflict or express exclusion of state regulation, the courts must determine if Congress intended to preempt. The courts consider: (a) the need for uniformity; (b) legislative history; (c) the pervasiveness of the federal regulatory scheme; (d) the historical dominancy of national or local interest in the area; (e) the potential for conflict from dual administration; and (f) the use of a federal regulatory agency to maintain continued regulatory control of an area in determining whether Congress has preempted the field. Preemption, therefore, turns on the particular facts of each case. Examples:

A state sedition law was preempted by federal sedition legislation based on the following considerations: (1) numerous federal statutes in the field were so pervasive as to compel the conclusion that Congress intended to leave no room to the states to supplement the federal legislative program; (2) the state law touched a field in which the federal interest was so dominant that enforcement of state legislation on the same subject was assumed to be precluded; and (3) the enforcement of the state sedition law presented a serious threat of conflict with the administration of the federal program. Pennsylvania v. Nelson (1956).


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A state non-discriminatory ad valorem personal property tax on imported goods stored at federal warehouses awaiting shipment to foreign markets was preempted by Congress' comprehensive regulation of custom duties. The state tax interfered with Congress' purpose to encourage merchants to use American ports by offering duty-free enclaves under federal control. Congress' statutory scheme was pervasive and the state tax was large enough to offset the benefits conferred by the federal statutes. Xerox Corp. v. County of Harris, Texas (1982).

b. Legitimizing State Burdens on Commerce

In the exercise of its plenary powers, Congress may decide to permit state regulation of an area even though the state would be barred from such regulation by the Commerce Clause in the absence of such congressional authorization. Example: A discriminatory state tax imposed on out-of-state but not domestic insurance companies is valid where Congress expressly authorized states regulation and taxation of interstate insurance. Prudential Insurance Co. v. Benjamin (1946).

4. The Compact Clause Art. I, Section 10, C.3 of the Constitution, is

another constitutional clause that states must be sensitive to when drafting legislation or in making agreements with other states. It requires that Congress consent to any agreement or compact by a state with another state or with a foreign country. This consent requirement is limited to agreements which increase the political power of the states in such a way as to potentially interfere with federal supremacy.

Example: The Multistate Tax Compact does not give any member state powers beyond those a member state possesses when acting individually. Further, each state retains complete freedom to accept or reject rules of the governing commission and may withdraw from the compact at any time. There is no actual or potential interference with federal supremacy. United States Steel Corp. v. Multistate Tax Commission (1978).

Please respond to following questions and explain why your answer is true or false.

The plenary power of Congress over interstate commerce precludes state regulation?

In the absence of congressional legislation, states are free to regulate interstate commerce?


State regulation which purposefully favours local interest against out-of-state concerns is virtually per se impermissible under the Commerce Clause?

When a state law is discriminatory in means or effect, a state must use any less burdensome alternative available?

A state law which does not discriminate against interstate commerce will not be held invalid under the Commerce Clause?

A state may discriminate in favour of its own citizens when it acts as a participant in the marketplace?

Sta te Government Power to Tax

Related to the State’s power to regulate commerce is its authority to tax commerce or activities related to commerce. While we will not spend a great deal of time on this sub-topic it is important to know the fundamentals of this important governmental power and how it is limited by the constitution and the supremacy of federal government law.

1. FOREIGN COMMERCE

Congress has plenary power to regulate commerce with foreign nations. Generally the power to regulate and tax foreign commerce belongs exclusively to the national government. Art. I, § 10, 1/2, provides that "No State shall, without the Consent of the Congress, lay any Impost or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws." The determination of whether a tax is a forbidden impost or duty is determined by whether it offends any of the three policies underlying the Import-Export Clause.

The Historical Context - Historically, the decision whether a state could tax depended on whether the goods were imports or exports. In the case of imports, this was determined by the now largely obsolete "original package" doctrine. When the importer acted upon a commodity by breaking up the package and assimilated it into the great mass of goods, it lost its character as an import and became subject to state taxation. Brown v. Maryland (1827). Only when goods were so irrevocably committed to the export stream that they would not be diverted to domestic use were they "exports" immune from state taxation.

The Modern Test - Under the modern test, the determination of whether a state tax is forbidden turns on whether it offends any of the following three policies underlying the Import-Export Clause: (I) the tax must not restrain the ability of the federal government to conduct foreign policy; (2) the tax must compensate the state for services and protection and not divert revenue from the federal government; (3) the tax must not produce interstate rivalry and friction by taxing goods merely passing through the state. However, the fact that goods or activity occur during transit does not itself act as a bar to state taxation. Department of Revenue of the State of Washington v. Association of Washington Stevedoring Companies (1978).

2. DOMESTIC COMMERCE


The fact that a state tax burdens the free flow of interstate commerce does not necessarily mean it's unconstitutional. Interstate commerce can be made to pay its own way. In determining whether state tax on interstate commerce is constitutional the Courts generally consider the following: (1) Is the tax discriminatory? (2) Is the activity being taxed sufficiently related to the taxing state?; (3) Is the tax fairly related to the benefits provided the taxpayer?; and (4) Is the tax fairly apportioned in light of the local contracts and benefits received by the taxpayer? A leading case on the power of the state to tax domestic commerce is Complete Auto Transit, Inc. v. Brady (1977).

The following are the general principles of domestic taxing authority to remember.

1) Concurrent Power

Not all state taxation of interstate commerce is impermissible. Interstate commerce can be forced to pay its own way as long as the burden imposed by the taxing state is commensurate with the benefit the taxpayer receives from the taxing state.

2) Discrimination A state may not discriminate against interstate commerce in imposing taxes. It cannot, for example, use one tax rate for local commerce and a higher rate for interstate commerce if there is no essential difference between the two classes.

Example: A Florida statute prohibiting out-of-state banks, bank holding companies and trust companies from owning or controlling businesses selling advisory services violates the Commerce Clause. Since only out-of-state banking interests were subject to the regulation, it was discriminatory. There was no showing that this disparate treatment was only an incidental product resulting from furthering legitimate local concerns. Lewis v. BT Investment Managers, Inc. (1980).

3) Due Process In order for a state to levy a tax on an interstate concern, the taxpayer must have a taxable situs in the state. Minimum Connection-If a state seeks contribution from a person, the Fourteenth Amendment Due Process Clause requires some benefit to justify the burden, i.e., some definable link, some minimum connection (jurisdictional contacts) between the taxpayer and the taxing state. The taxing formula used must be reasonable "in relation to the opportunities which [the state] has given, to protection which it has afforded, to benefits which it has conferred." Wisconsin v. J. C. Penney Co. (1940).

4) Interstate Commerce

a) "Multiple Burdens" - Since a taxpayer frequently acquires more than one taxable situs, there is a danger of an excessive burden on interstate commerce if each state is allowed to impose an unapportioned tax.


S T U D Y T A S K 2

Interstate commerce would be placed at a competitive disadvantage to local competition. b) Apportionment - The taxing state must apportion its tax to reflect the extent of the taxable situs the taxpayer has acquired with the taxing state.

Please respond to the following questions and explain why your answer is true or false.

State taxation of business concerns is prohibited by the Commerce Clause.

A state where goods are delivered may impose a sales tax on a wholly mail order transaction from a company located in another state?

A state is allowed to raise additional revenue and promote energy conservation by taxing all imports of foreign oil as it enters the ports of the state?

Loca l Gover nments in Amer ica In this section we will explore local government in America. Local government is a vital part of the American democracy, but also a bit of a constitutional anomaly.

James Madison, in The Federalist, no. 10, argued that local democracies were “spectacles of turbulence and contention … incompatible with personal security and rights of property.” Only by “extend[ing] the sphere” of political power to the nation, he contended, could the danger to liberty posed by localism be cured. On the other hand, Alexis de Tocqueville, in Democracy in America (1835), contended that “the strength of free nations resides in the local community. Local institutions are to liberty what primary schools are to science; they bring it within people's reach, they teach people how to use and enjoy it.”

Local government was certainly not a post-independence invention in America. It stems from the very roots of its colonial past. Despite its history, local government is not directly authorized by the Constitution. The 10th Amendment pronounces that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” One might argue that local governments should receive implied constitutional authority through the 10th Amendment by extending the meaning of “or to the people”. This argument and any suggestion that local communities have constitutional status has been refuted.


“Dillon’s Rule,” not a law but an opinion that bears its inventor’s name, has come to define the legal relationship between American municipal and state governments. It is derived from an Iowa state judge’s (Judge Dillon) decisions (Clinton v. Cedar Rapids and Missouri River R. R., 24 Iowa 455), handed down in 1868, and expanded upon in his 1872 book A Treatise on the Law of Municipal Corporations. Dillon’s Rule maintains that each county, city, borough, town, and all political subdivisions of a state are connected to the state as a child is connected to a parent. Under this usurping concept, community governments are administrative extensions of the state and not elective bodies representing the right of the people to local self-governance. The Rule was fully adopted for nationwide application to local governments by the U.S. Supreme Court, by reference to Dillon’s book, in Hunter v. Pittsburgh, 207 U.S. 161 (1907), which upheld the power of Pennsylvania to consolidate two cities against the wishes of the majority of the residents into one. While involving the sovereignty of a municipality the decision in Hunter v. Pittsburgh applies to all forms of local government in the U.S. The Supreme Court held:

Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the meaning of the Federal Constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it.


What this decision means in legal terms is that local governments – at the city, county, town and village level – are not sovereign governments, but are delegated powers from the state through the state constitution and/or legislation. What this means in practical terms is that local governments are created by the necessity of efficient government and the participation of citizens on subjects that are very relevant in their day-to-day lives.

Since the Tenth Amendment to the United States Constitution makes local government a matter of state rather than federal law, the states are free to adopt a wide variety of systems of local government. Local government in the United States is generally structured in accordance with the laws of the various individual states. Typically each state has at least two separate tiers: counties (known in Louisiana as parishes and as boroughs in Alaska), and municipalities. Some states have their counties divided into townships. In turn there are several different types of municipal government, generally reflecting the needs of different levels of population densities; although the types and nature of these municipal entities varies from state to state, typical examples include the city, town, borough, and village. Many rural areas and even some suburban areas of many states have no municipal government below the county level. In a few states, there is only one level of local government: Hawaii has no legal municipalities below the county level; while Connecticut and Rhode Island's counties serve no legal function—these being filled by city and town governments.

County governments are organized local governments authorized in state constitutions and statutes and established to provide general government in an area generally defined as a first-tier geographic division of a state. The category includes those governments designated as boroughs in Alaska, as parishes in Louisiana, and as counties in other states. In areas lacking a municipal or township government, the county government is generally responsible for providing all services.

LOCAL GOVERNMENT IN THE STATE OF MARYLAND

Let us take a look at how local government works in one of the fifty States – Maryland. Please read the Declaration of Rights, Article XI-A of the Constitution and Article 25A of the Maryland Code to understand the constitutional and statutory authority for local governments in Maryland. You can also browse (optional) through Articles 1 trough 4 of the Constitution to get a sense of the branches of government at the state level.

Maryland became a province of England in 1608 under charter from the English king. In was one of the 13 original colonies that declared independence in 1776. It has had four constitutions and a Declaration of Rights that is integrated into the Constitution. At the time of the Revolutionary War, the first constitution was adopted in 1776. Voters adopted the second constitution in June 1851. During the Civil War, the third constitution was adopted. Voters adopted the fourth and last constitution under which Maryland government now functions in September 1867. The current Constitution provides the authority for local government at Article XI-A. The Maryland Code at provides specific statutory authority for municipalities and counties.


Maryland has twenty four counties that govern by statute in one of three ways: as a commissioner, charter, or code home rule county. The eight Commissioner counties do not have constitutional home rule power (i.e., they may not legislate on local matters without the prior specific consent of the General Assembly). Ten counties operate with a Charter as provided for under Article XI-A of the Constitution of Maryland. In these, the voters have approved a formal charter outlining the structure of the county government. In eight of the 10 charter counties, executive and legislative powers have been divided between an elected executive and an elected council. In two of the charter counties, an elected council that appoints an administrator/manager has retained executive and legislative powers. The remaining six counties operate as Code Home Rule counties (i.e., the county voters have approved home-rule power for the commissioners) under Article XI-F of the Constitution of Maryland. Please refer to the chart illustrating these three variations of county government.

Charter County Government - We will focus on the Charter Counties, and in particular, Montgomery County, to illustrate the diverse authority given to county government. Montgomery County is a semi-urban county located on Maryland’s border with Washington D.C. and Virginia. It has a population of nearly one million people – nearly 20 percent of the population of the state.

The Code of Maryland, at Article 25A, lists the enumerated powers of the Charter Counties. It is an extensive and impressive list of enumerated powers. The same code provides that the counties lack sovereign immunity reinforcing the view that the State governments themselves wanted to avoid an appearance that local governments had a degree of sovereignty that might compete with the authority of the state government.

In 1915 the voters approved Article XI-A of the Constitution of Maryland. This section of the constitution provides for charter home rule, and is supplemented by Article 25A, and other articles, of the Annotated Code of Maryland. A county becomes a charter county when a charter board drafts a charter, which is then approved by the voters. Article XI-A provides that: the General Assembly shall, by public general law, grant "express powers" to charter counties; the charter counties shall have elected legislative bodies in which law making powers shall be vested; and the General Assembly may not enact laws for a single charter county in a subject matter contained in the "express powers." The list of Express Powers for Charter Counties is found at Article 25A, Annotated Code of Maryland , Section 5.

Montgomery County is one of the ten counties operating with a Charter provided for under Article XI-A of the Constitution of Maryland . In these Charter Counties, the voters have approved a formal charter outlining the structure of the county government. Approved by the voters in 1968 and implemented in 1970, the Montgomery County Charter provides for a Council/Executive form of government. The County Government of Montgomery is composed of the Executive and Legislative branches. The Judicial system consists of the County's Circuit Court, the state District Court, the Court of Special Appeals and Court of Appeals.


The Executive Branch implements and enforces Montgomery County's laws and provides executive direction to the government. Its chief executive officer is the County Executive. There are over 30 executive branch departments and agencies that help to deliver services to county residents. Libraries, transportation and police are just a few.

The Legislative Branch consists of the County Council and six related agencies. The Charter defines the Council's powers in three major areas: legislation, land use, and the budget. There are an array of other agencies that provides services from public safety to schools to community parks and public works.

The organizational chart below illustrates how relevant the county government is to the people of Montgomery County Maryland. It is arguably more relevant than either the state or federal governments to ordinary citizens since it provides such grassroots services as public bus service, free education and police protection.

Statutory Responsibilities of the Counties

In addition to the statutes that establish the authority for counties in Maryland, the counties are also delegated certain duties and responsibilities. These statutory delegations include education (and the power to levy tax to support education in the county), to create a county board of health, to manage elections in the county and a number of other statutory delegations of power.

The General Assembly has the general power to create counties, subject to the consent of voters affected by such change and in accordance with other procedures (Article XIII, Sections 1 and 2). The legislature maintains overall general control of local governments. The General Assembly must by general law grant express powers to chartered counties; it may not thereafter pass local laws in conflict with the express powers. In essence, home rule limits the power of the legislature to adopt local laws applicable to specific units of local government but does not limit its authority to adopt general laws affecting all municipalities, chartered counties, or code counties.

In the Topic 8 we touched upon the application of the Bill of Rights to state and local governments through the 14th Amendments Due Process Clause. Through the doctrine of selective incorporation, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment may limit action by state and local governments as well. That raises potentially thorny issues for a local government in terms of being required to establish and implement federal constitutional and statutory law. For example a County Government that wishes to control guns to curb a rising violent crime rate might be challenged by gun rights advocates who would argue that the 2nd Amendment of the Constitution protects their right to “bear arms”. The Supreme Court has not yet incorporated the 2nd Amendment into the 14th Amendment’s due process clause making the Bill of Rights applicable to local and state governments. The issue is unresolved as to whether it will in the future be deemed a right so “fundamental” as to be brought into the 14th Amendment and to bind state and local governments.

Issues like the preceding can make the creation of legislation and regulations by local governments a challenge. These local units of government, though autonomous, lack the shield of sovereignty and must be careful to stay within any


S T U D Y T A S K 3

constitutional and statutory mandates from the federal or state governments. Nonetheless, county governments such as Montgomery County, because of their scale and the important services they provide, offer the opportunity for grassroots participatory democracy on a greater scale than either the state or federal government.

Montgomery County Maryland

Government Organization Chart

Where do local governments in the United States receive their authority?


Can it be said that the County Government of Montgomery County Maryland reflects the federal and state government but on a smaller scale?

What do you think government would be like in America if there were no local governments?

Rev iew Quest ions

1. Granholm v. Heald is one of your focus cases. It is also one of the most recent pronouncements on the dormant Commerce Clause by the same Supreme Court that brought you the Lopez case discussed in Topic 8 concerning the active Commerce Clause. Recall that Lopez was the first case in nearly sixty years in which the Supreme Court struck down a federal government statute (Gun Free Schools) as not being within the scope of a narrower Commerce Clause. In Lopez the Court can be said to have taken a pro-state sovereignty position, while in Granholm the Court took a position that seemed to strengthen the dormant Commerce Clause mechanism. Is this true? How would you reconcile the decisions by the Court in these two cases?

2. Consider the following hypothetical. During a time of scarce oil supply and rising fuel prices in the United States, the state of Maryland conducted a study which showed that stations for refuelling motor vehicles that were operated by producers or refiners received preferential treatment in terms of oil supplies during this scarcity. As a result, Maryland enacted a law which prohibits producers or refiners from operating retail service stations within Maryland. Furthermore the producers are required to provide their production evenly to retailers across the state. Colossal Oil Company, one of the nation's largest producers and refiners, has brought suit in the federal district court in Maryland on the ground that the state law is unreasonable and will frustrate rather than enhance competition. Colossal Oil also argued that the Maryland law discriminated against out-of state competitors in favour of in-state independent dealers, since the burden of the legislation fell on interstate companies which will have to divest themselves of their Maryland service stations. Based on your readings, is the Maryland legislation constitutional? Is the Dormant Commerce Clause offended by this state law? Why or why not?

3. Consider the following statement and prepare a brief response based on your knowledge of the 10th Amendment and the practical benefits of local government in America.

Local governments in the United States while not a creature of the U.S. Constitution are intensely democratic, participatory and the most relevant form of government in the United States.

4. The state of Maryland has sales tax legislation that taxes all online Internet and mail delivery purchases by consumers located in the state.


This means that a consumer who makes an online purchase of a book from Barnes and Noble, which has several stores located in Maryland, will have the state sales tax added to the purchase price. The consumer notices that is she were to purchase the same book from Amazon.com, an online bookseller without stores or offices in Maryland, that there is no sales tax added to the purchase. Why do you think there is no tax on the Amazon.com purchase?

Seminar Top ic Topic: The Constitutional Authority for Local Government in the United States and Pacific Island Countries Please read the Yale Law Journal Note by Yale Student Jake Sullivan who critiques a journal article by David Barron in which Barron argues that it is irrelevant that the nation’s constitution does not provide authority for local government. What do you think about the importance of giving constitutional authority to local government? Is it important from a lawyer’s perspective? From a citizens perspective? And a local government perspective? Would providing local government express constitutional authority under the U.S. Constitution reduce litigation and produce more efficient government or the opposite or make no difference at all. Consider above questions and also the following talking points and be prepared to actively discuss them at our seminar. What is the nature of local government in your home country? Does it bear a resemblance to local government in the United States? Is there a constitutional basis for local and/or traditional government in your country? How much does your home country constitution reflect the realities of tradition and culture? Is that important? Why or why not. Is local government more or less relevant than national government, or is it just a different kind of relevance? Are national constitutions flawed if they do not refer to local government including traditional forms of governance? Should constitutions be written and updated based on a sense of the nation and/or is it important for the constitution to reflect local practices, traditions and governance? Or is that just impossible to do in a complex nation state?

Part 3 – CONSTITUTIONAL LAW AND THE PROTECTION OF HUMAN RIGHTS

INDIVIDUAL RIGHTS AND LIBERTIES: FUNDAMENTAL

RIGHTS AND DUE PROCESS

.

10 T O P I C



1) Introduction

2) Privileges and Immunities of National Citizenship

3) Due Process and ‘‘Liberty’

i) Traditional Substantive Due Process

ii) The Process of Incorporation of Bill of Rights

iii) Substantive Due Process Revisited – The Right of Privacy and Other Un-enumerated Rights

(a) Fundamental Rights

(b) Express, Implied and Un-enumerated Rights

(c) The Right of Privacy

The Movement to Recognize ‘‘Personal Rights’’—Procreation

The Movement to Recognize ‘‘Personal Rights’’



Identify the substantive rights provided as enumerated rights and the gateway clauses through which certain rights and substantive due process can be applied.

Distinguish the deprivation of “contract” rights approach of the Supreme Court in the “Lochner” era in contrast to the Modern Substantive Approach for non-fundamental and fundamental rights matters.

Understand the rational basis test used for judicial review of state action or legislation.

When a test stricter than the rational basis test may be utilized by the Court for fundamental rights.

How the Court has identified the constitutional sources for a privacy right and how the penumbras affect has led to the “creation” of fundamental rights regarding personal marital and procreation preference and how the Court has reviewed state legislation that restricted homosexual relationships and abortion.





Presc r i bed Read ing Lochner v. New York (1905)

Griswold v. Connecticut (1965)

Roe v. Wade (1973)

Bowers v. Hardwick (1986)

Lawrence v. Texas (2003)


9 German Law Journal No. 12 (1 December 2008) - Special Edition, Republication - Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, David P. Currie

I n t roduc t ion

In this part of the course (Part III), we will examine the very important and interesting subject of individual rights in the United States. The allocation of governmental power discussed in Part II of the course is only one method of limiting government power. Specific enumeration of individual rights and liberties is another. The original Constitution contained just a few such specific provisions such as the prohibition against Ex Post Facto laws and Bills of Attainder (Article. I, Section 9 and 10, suspension of Writs of Habeas Corpus except in cases of rebellion or invasion (Article. I, Section 9), the use of religious tests as a qualification for public office (Article. IV, Section 2). One of the acts of the first Congress after ratification of the Constitution was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The Constitution has subsequently been enlarged to a total of twenty-six amendments protecting the individual against abuses from state, national, and in some instances, private action. The focus of Part 3 in on the guarantees in the First, Thirteenth, Fourteenth, and Fifteenth Amendments. We will start first in Topic 10 with the privileges and immunities clause under Article IV of the Constitution. Then we will explore how the courts have significantly shifted their approach in reviewing state legislation on matters involving


economics and society, and created several tests for making this review depending on the nature of the rights being protected.

P r iv i l e ges and Imm uni t ie s o f N a t iona l C i t i ze nsh ip Background Un-enumerated Rights - Despite some contrary judicial opinion, the U.S. Supreme Court has rejected the idea that there are extra-constitutional "natural rights" limiting governmental power. If Congress exercises one of its delegated powers or the states exercise their reserved powers, some express or implied constitutional provision must be found if the government act is to be held unconstitutional. Bill of Rights - The Court has held that the Bill of Rights operates only on the federal government, not on the states. There was, therefore, a felt need for finding some constitutional provision which could be used against abuses of state governmental power. Privileges and Immunities Clause - It was first argued that the Fourteenth Amendment "Privileges and Immunities Clause" provided such a limit on state power. But this broad interpretation and the hopes of those who wanted more from their Constitution to enhance individual rights (e.g. slavery, right of women to vote) were dashed by a consistently narrow reading by the Supreme Court of the clause.

Definition and Scope In the federal circuit court case of Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) Justice Bushrod Washington determined that the protections provided by the clause are confined to privileges and immunities which are, "in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Privileges and Immunities Clause, Article IV, Section 2


state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens. U.S. Supreme Court Justice Joseph Story also addressed this Clause of the Constitution, in 1833, when he noted:

It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.

Thus, Story thought that this Clause of the Constitution was meant "only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting." (Story, Joseph. Commentaries on the Constitution (1833)) After the Civil War 1861-1865) the issue of how to provide legal status to former slaves who were now known as free men in theory, but certainly not in practice, spawned a dialogue about its scope. The Fourteenth Amendment was ratified two years later, in 1868, but its provisions relating to personal liberties were not initially applied to the states leaving a question about how they might be applied constitutionally to the states through the 14th Amendment’s own version of the Article 4’s Privilege and Immunities Clause. The 14th Amendment clause reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.…" In the Slaughterhouse Cases (1873), the Supreme Court definitively held that the Privileges and Immunities Clause of the Fourteenth Amendment did not make the Bill of Rights applicable to the states. Moreover, it was denied that the Privileges or Immunities Clause of the Fourteenth Amendment was designed to protect individual and economic liberty against state regulation. Function of the Clause - It was held in the Slaughterhouse Cases that the sole function of the Privileges and Immunities Clause of the Fourteenth Amendment was to protect the rights secured to individuals in their relationship to the federal government, i.e., in their capacity as federal citizens. The tension between federal and state governments over their respective sovereignty was clearly present in this case. The country would wait decades for reconsideration of the Slaughterhouse Cases and the application to the States of the 14th Amendment and its incorporation of its Bill of Rights. The 14th Amendment represented the Congress' reversal of that portion of the Dred Scott decision that declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. Scope of the Clause - The fairly narrow list of rights of federal citizenship secured by the Privileges and Immunities Clause of the Fourteenth Amendment was declared to include the following rights: (a) to petition Congress; (b) to peaceably assemble; (c) to use the Writ of Habeas Corpus; (d) to use the


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navigable waters of the United States; (e) to claim the benefits secured by treaties with foreign nations; (f) the right to interstate travel; (g) to claim the rights secured by the Thirteenth (Freedom from Slavery) and Fifteenth Amendments (Right to Vote for ; and (h) the right to vote in federal elections. Endurance of the Narrow View - This limited interpretation of the Privileges and Immunities Clause of the Fourteenth Amendment dashed the hopes of those who sought to use the clause to protect rights of life, liberty, and property whenever endangered as a result of state action or inaction. Yet this narrow view has endured and the Privileges and Immunities Clause of the Fourteenth Amendment (like its Article 4 counterpart clause) has failed to this day to be a wellspring of constitutional litigation except for the rights listed above, particularly the right to vote in federal elections and the right of interstate travel.


The Fourteenth Amendment Privileges and Immunities Clause protects essentially the same rights as the Due Process Clause?

Trad i t iona l Substan t ive D ue Process The failure of the Fourteenth Amendment Privileges and Immunities Clause as a substantive limit on state police power left few significant constitutional impediments, e.g., provisions against impairment of contract obligations, and against Bills' of Attainder. During the last part of the nineteenth century, the Court began to strike down state and federal social and economic legislation as unreasonable interferences with the liberty and property rights guaranteed by the Fourteenth Amendment Due Process Clause. The exercise of judicial review in this area intruded substantive economic concepts such as freedom of contract and the principles of free market economics into the process of Fourteenth Amendment due process interpretation, hence the description, substantive due process. Reaction against large-scale invalidation by the Supreme Court of social and economic legislation gradually produced judicial restraint and a new deference to the legislative judgment in economic matters and finally today to almost total judicial abdication with respect to due process challenges to economic legislation. IMPAIRMENT OF OBLIGATION OF CONTRACT Constitutional Text - Article I, Section 10, provides that "no state shall …pass any … law impairing the obligation of contract." While there is no comparable clause applicable to the federal government, the Fifth Amendment Due Process


Clause guarantees procedural fairness which would bar unreasonable impairment of substantive vested legal rights. Present Scope - By giving a broad construction to the concept of "contract," courts could invalidate state police power measures. During most of the twentieth century, the clause has been accorded only limited importance, but today there are important signs of revival. Judicial Construction - The guarantee applies only against legislative (not judicial) action impairing substantive legal rights (not procedures for enforcement of contracts). While both private and public contracts are protected, the state may reserve the power to subsequently revise its licenses and other contracts.

Private Contracts - In the case of private contracts, a state law affecting pre-existing contractual relationships will generally survive attack under the Contract Clause if it is reasonable-unless there is a severe impairment of preexisting contractual relationships by the state involving, for example, infringement of the reliance factor. Such a severe impairment will be particularly vulnerable (1) if it is not designed to deal with a broad generalized economic or social problem, (2) if it is a permanent rather than a temporary impairment, (3) if the area regulated has never before been subject to regulation by the state, and (4) if the impairment in question has an extremely narrow focus. Allied Structural Steel Company v. Spannaus (1978).

o Examples: A state law imposing price controls on interstate

natural gas sales, and retroactively prohibiting application of private contract clauses allowing (1) price escalation if the government fixes prices at higher than the contract price and (2) redetermination of prices, does not violate the Contract Clause.

First, the state act does not meet the threshold test since it does not operate as a substantial impairment of the contractual relationship. The heavily-regulated character of the natural gas industry and the inclusion of the contract clauses indicate that the parties knew that their contractual rights were subject to price regulation. Even assuming the Act substantially impaired the contractual relation, the Act was a reasonable means of achieving the significant and legitimate public purposes of protecting consumers from the escalation of prices caused by deregulation and preventing imbalances in intrastate and interstate markets. The Act's prohibitions are limited to the context posing the greatest dangers from price escalation. Energy Reserves Group Inc. v. Kansas Power & Light Co. (1983).

Public Contracts - In the case of public contracts, (1) the state may

reserve the power to subsequently revise its licenses and other contracts; (2) a state may not abandon its sovereign power to legislate for the public health, safety, and well-being by a contract and if it does


so then any such contract is invalid; and (3) while the state may contract away its financial powers, it may impair such contracts if this is reasonable and necessary to serve important state interests.

o Example: State statutes repealing a statutory covenant made by

the two states limiting the ability of the Port Authority of New York and New Jersey to subsidize rail passenger transportation from revenues and reserves violates the Contract Clause. The repeal on the limitation eliminated an important security provision of bondholders and thus impaired the obligation of the state's contract. In this instance the repeal was not necessary to encourage users of private automobiles to shift to public transportation, and it was not reasonable in light of any changed circumstances since the contract was entered into. United States Trust Co. of New York v. New Jersey (1977).

BILLS OF ATTAINDER Constitutional Text - Article I, Section 9 prohibits Congress from enacting Bills of Attainder and Article I, Section 10 contains a similar prohibition directed to the states. In a sense, a Bill of Attainder is a specific illustration in the Constitution of the separation of powers principles, i.e. punishment is a judicial and not a legislative function. Punishment Without Trial - Functionally, the Bill of Attainder clauses prohibit the legislature from punishing individuals without the benefit of judicial trial. The meaning of punishment in this context is not limited to imprisonment. LIMITATIONS ON THE EMINENT DOMAIN POWER Definition - The federal and state governments have power to take private property for public use (eminent domain). The federal government must show that such a taking is authorized under its Article I powers, e.g., condemnation of land to build a post office under the postal power. Constitutional Text - The Fifth Amendment provides that private property is not to be taken for public use without just compensation. A similar limitation is applicable to the states as part of Fourteenth Amendment due process. Public Use - The courts will not generally review government policy decisions on what is a public use. If the taking is for a public purpose, this is sufficient. "Taking" - A "taking" is not limited to condemnation of land but the mere fact that property values are diminished by government action does not create a "taking" of property. If a regulation is a valid use of governmental power, even though it diminishes property values, it is probably not a "taking," e.g., rezoning of permissible land uses.


Examples: o Frequent low flights of military airplanes over a person's land,

causing chickens to stop laying eggs, thus impairing its value, is the "taking" of an easement requiring compensation. United States v. Causby (1946).

o A municipal zoning ordinance, enacted after plaintiff’s purchase of land, which limits the uses of the land is not a “taking” without just compensation in violation of the Fifth and Fourteenth Amendments. The ordinance, as interpreted, did not bar all residential uses. The ordinance substantially advanced the public’s interest in avoiding the ill effects of urbanization by controlling land development. Plaintiffs share .in the benefits and burdens of the controls. The ordinance neither prevents economically viable uses of the land nor extinguishes fundamental attributes of ownership. There has been no denial of “justice and fairness.” Agins v. City of Tiburon (1980).

o A New York statute which requires owners of rental housing units to permit the installation of cable T.V. equipment on their property constitutes a state "taking" for which the owner is entitled to just compensation under the Fifth Amendment. Since the cable equipment is affixed to the building, there is a physical occupation which deprives the owner of his rights to possession, use, and disposition of his property. No balancing of balancing of interests is required. Loretto v. Teleprompter Manhattan CATV Corp. (1982).

Just Compensation - Just compensation is measured by the loss to the owners of fair market value, and not gain to the government. THE RISE AND FALL OF SUBSTANTIVE DUE PROCESS Source in the Due Process Clauses - Prior to the economic reform of the 1930s in the United States, the courts used the Due Process Clauses of the Fifth and Fourteenth Amendments to invalidate a variety of federal and state social and economic laws as arbitrary and unreasonable interferences with the freedom to contract and the right to property. One of the key cases Supreme Court cases, now invalidated, is Lochner v. York (1905), which is one of your focus cases that defined the doctrine of substantive due process. In Lochner the Supreme Court invalidated a state law setting maximum hours of employment for bakery employees on the ground that the statute unreasonably interfered with the right of contract between the employer and the employee. Freedom of contract was declared to be part of the liberty of the individual protected by the Fourteenth Amendment. The opinion of the Court, delivered by Justice Rufus Peckham, began by asserting that the Fourteenth Amendment protected an individual's "general right to make a contract in relation to his business." He acknowledged that the right was not absolute, referring disparagingly to the "somewhat vaguely termed police powers" of the state. At the same time, Peckham argued that the police power was subject to certain limitations; otherwise, he claimed, the


Fourteenth Amendment would be meaningless, and states would be able to pass any law using the police power as a pretext. He asserted that it was the court's duty to determine whether legislation is "a fair, reasonable and appropriate exercise of the police power of the State, or ... an unreasonable, unnecessary and arbitrary interference with the right of the individual ... to enter into those contracts in relation to labor which may seem to him appropriate." Justice Harlan, who dissented, said that if there is doubt as to the validity of the statute, that doubt must be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. When the validity of a statute is questioned, the burden of proof is upon those who assert it to be unconstitutional. In a famous dissent, which became the voice of the future, Justice Oliver Wendell Holmes insisted that constitutional interpretation by judges was never intended to embody a particular economic theory. Although only three paragraphs long, Holmes' dissent is well-remembered and often quoted. Holmes accused the majority of judicial activism, claiming that the case was "decided upon an economic theory which a large part of the country does not entertain." He attacked the idea that the Fourteenth Amendment enshrined the liberty of contract, citing laws against Sunday trading and usury as "ancient examples" to the contrary. He added, "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory."

Decline of Substantive Due Process - In the 1930s, in the face of rising adverse public reaction to judicial invalidation of economic reform the doctrine of substantive due process began to ebb in importance and the doctrine followed a process of steady decline and erosion.

o Example: The Court validated a state legislative scheme setting milk prices. To be sure, this result was rationalized on the ground that the milk industry was a business "affected with a public interest." But the "affected with a public interest" exception to the substantive due process rule meant "subject to the police power" and gave promise of destroying the rule. Nebbia v. New York (1934).

For an interesting prospective of the application of Lochner and

Substantive Due Process in the courts of the Federated Republic of Germany you may wish to read Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany, David P. Currie (see Alternative Reading).

MODERN SUBSTANTIVE DUE PROCESS: NON-FUNDAMENTAL RIGHTS Rational Basis - Today, social and economic regulatory and tax legislation, which does not interfere with specific fundamental rights will not be closely


scrutinized by the courts. If there is any rational basis that the legislature might have had for concluding that the legislation would further permissible legislative objectives, it will be sustained. The law must not be arbitrary or irrational. But the law is presumed to be constitutional and the burden of proof is on the challenging party. This burden is essentially insurmountable and no economic legislation has been held unconstitutional by the Court, using this rationality test, since the 1930’s.

General Approach - When examining a statute under the Due Process Clause, if there is no basis for invoking a stricter standard of review, the rationality test should be adopted. The following three-prong approach is used:

(1) ascertain the objective of the law (a court will not probe for the true purpose of the law) ; (2) identify the means used by the state to achieve the objective; and (3) examine the rationality of the means for achieving the objective by reviewing the relevant facts.

The courts adopt a position of extreme deference to the legislative policy judgment when this standard is used. In using the rationality test the courts generally will not questions the legislative objective. In the case of state laws any permissible police power objective such as public health, moral and well-being, will suffice. If the law serves a valid purpose, the fact that the law incidentally serves other purposes will not make it unconstitutional.

While the law must be rationally related to the achievement of the objective the courts will not question the legislative fact finding. If there are facts that would sustain the law, the courts will generally assume that legislation was based on those facts.

Examples:

o The federal Price Anderson Act setting maximum limits on tort liability for nuclear power plant accidents is constitutional. The law is rationally designed to promote nuclear power development while providing a fair and adequate basis for recovery. Any dollar ceiling is necessarily an arbitrary determination. Duke Power Co. v. Carolina Environmental Study Group (1978).

1 4 t h A m e n d m e n t D u e P r o c e s s C l a u s e

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


o A state law requiring pharmacies to be operated or controlled by pharmacists does not violate due process despite the fact that the state supreme court had relied to an earlier substantive due process Supreme Court precedent on the contrary. North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc. (1973).

o A heavy municipal gross receipts tax on private parking

garages which put them at a disadvantage with public parking is not violative of due process. Due process is not violated because legislation renders a business unprofitable. Although substantive due process could be violated by a taxing law, the legislation is invalid only if it is so arbitrary as to compel a conclusion that it is not a tax or amounts to a confiscation of property. Pittsburgh v Alco Parking Corp. (1974).

The rational basis review, in U.S. constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. The higher levels are typically referred to as intermediate scrutiny and strict scrutiny. Although the default level of constitutional scrutiny, rational basis review does not apply in situations where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated. Rational basis review asks whether the governmental action at issue is a reasonable means to an end that may be legitimately pursued by government. Stated another way, the standard requires that governmental action be "rationally related" to a "legitimate" government interest. Under this very deferential standard of review, the "legitimate" interest does not have to be the government's actual interest in the matter; rather, if the court can merely hypothesize a legitimate state interest served by the challenged action, it will pass constitutional muster. In modern constitutional law, the rational basis test applies not only to the federal government, but also to the state and local government (via the Fourteenth Amendment). It also applies to both legislative and executive action whether those actions are of a substantive or procedural nature. Generally, to pass the rational basis test, the government need not make any argument. Rather, the opposing party must negate "every conceivable rationale" for the challenged regulation. The rational basis test was produced out of a chain of 1930s and 1940s Supreme Court decisions. United States v. Carolene Products Company, 304 U.S. 144 (1938), was one of these decisions. The case dealt with a federal law that prohibited filled cows milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The defendant argued that the law was unconstitutional on both Commerce Clause and due process grounds. The previous term, the Court, was under intense political pressure from President Roosevelt. Roosevelt was trying his best to stimulate the U.S. economy in the face of a very long period of


worldwide economic stagnation. A change in the membership of the court in the 1930s provided the opportunity for change from the Lockner philosophy that restricted government regulation of commerce. The defendant company, Carolene Products, was charged with breaking the law and the United States District Court for the Southern District of Illinois had granted the defendant's motion to declare the “milk filling” law unconstitutional, and the Seventh Circuit Court of Appeals had affirmed the District Court's ruling. Justice Harlan Stone, writing for the Court in Carolene Products, found that the law, being "presumptively constitutional" was essentially a legislative judgment, and hence was not for the courts to overrule. Applying rational-basis review, the Court held that the law was supported by substantial public-health evidence, and was not arbitrary or irrational. Carolene Products is best known for its "Footnote Four", which is considered to give additional clarity to the standards of review. The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases. Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a heightened standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and judicial review.

Text of Footnote Four (Carolene Products) “ There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth… It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. ”

Footnote Four introduced the idea of levels of judicial scrutiny. It established the rational basis test for economic legislation, an extremely low standard of judicial


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review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest. Justice Stone outlined a higher level of judicial scrutiny for legislation that met certain conditions:

o On its face violates a provision of the Constitution (facial challenge).

o Attempts to distort or rig the political process. o Discriminates against minorities, particularly those who lack

sufficient numbers or power to seek redress through the political process.

Fundamental Rights Exception. Due process challenges to legislation involving fundamental personal rights which invoke a more searching standard of judicial review will be discussed in Topic 11 and 12.


A reasonable law will generally be constitutional even if it retroactively impairs private contract relationships.

Once a state has contracted away its fiscal powers, it is thereafter barred from any changes in the contract.

If a state law has the effect of reducing property values, the law constitutes a "taking" requiring "just compensation."

In most cases, due process is satisfied if the law is rationally related to a permissible government objective.

Which of the following is not an element of the traditional test?

a. Probe to discover the true legislative objective.

b. Ascertain if the means are rationally related to the objective.

c. Assume any state of facts that would sustain the law.

d. All of the above (a, b, and c) are elements of the traditional due process rationality basis test.


The Process o f Incorpora t ion o f the B i l l o f R igh ts

As economic substantive due process died, the courts began to use the Due Process Clause as a vehicle for making various specific personal rights applicable to the states. Key questions considered by the Court were whether the Due Process Clause makes all of the Bill of Rights applicable to the states, whether the clause has an independent meaning, and whether Bill of Rights guarantees made applicable to the states apply to the same extent and in the same manner as it operates against the federal government.

TOTAL INCORPORATION - The Court\has rejected the argument that the Due Process Clause incorporates all of the Bill of Rights and makes them applicable against the states.

FLEXIBLE DUE PROCESS - In the 1940s and 50s, a Court majority employed a flexible approach which viewed the Due Process Clause as having a meaning independent of the Bill of Rights. The Court determined whether a proceeding was so unfair as to offend fundamental standards of decency. This approach is presently a minority position in due process adjudication.

SELECTIVE INCORPORATION - The Court has held that some, but not all, of the provisions of the Bill of Rights are incorporated by the Due Process Clause and thus made applicable to the states.

o Standard of Incorporation - The standard of incorporation has been variously stated as whether the Bill of Rights guarantee is essential to "the concept of ordered liberty" or whether it is "fundamental to the American scheme of justice."

o Provisions Not Incorporated - Most of the provisions of the Bill of Rights have been incorporated. Those which today do not apply to state governments are the Seventh Amendment right to trial by jury in civil cases, the right to grand jury indictment, freedom from excessive bail, the requirements of a 12-person jury and of a unanimous verdict for conviction.

FULL AND PARTIAL INCORPORATION - The Court has held that the incorporated right applies against the states to the same extent and in the same manner as the Bill of Rights provision applies against the federal government. Caveat: Recent cases appear to have narrowed the scope of Bill of Rights guarantees.

o Example: The Sixth Amendment right to trial by jury is "fundamental to the American scheme of justice" and thus is incorporated in Fourteenth Amendment due process, Duncan v. Louisiana (1968). But the right to a 12-person jury is not a Sixth Amendment right and thus is not


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constitutionally required in federal or state criminal trials. Williams v. Florida (1970). A jury of five persons is not constitutionally permissible (Ballew v. Georgia (1978» and a state conviction by a non-unanimous six-person jury for a non-petty offense violates due process (Burch v. Louisiana (1979». While the requirement of unanimity is not incorporated in Fourteenth Amendment due process, a split among the Justices indicates it may still be a Sixth Amendment requirement. Apadoca v. Oregon (1972).


The Court has now held all of the guarantees of the Bill of Rights applicable to the states as part of the Fourteenth Amendment Due Process "Liberty" Clause.

An incorporated right applies against the states but the scope of the Bill of Rights guarantees which is being incorporated may be re-defined by the Court.

When a fundamental right is burdened, the Court requires the government to justify the law under a stricter standard of review.

Subs tan t ive Due Pr ocess Rev is i ted : The R igh t o f P r ivacy and Other Un- enumera ted R igh ts FUNDAMENTAL RIGHTS Just as procedural rights were incorporated into due process and made applicable to the states, various substantive limitations on government power became part of Fourteenth Amendment due process. State legislation was declared unconstitutional not because it was an arbitrary and unreasonable deprivation of liberty but because it violated the guarantee of free speech, or religious freedom, or privacy which are fundamental rights guaranteed by due process.

"FUNDAMENTAL RIGHTS": STANDARD OF REVIEW. When

legislation intrudes on "fundamental rights" applicable to the states through the due process guarantee, courts do not apply the rational basis test. A more demanding standard of review is adopted. Often this takes the form of "strict scrutiny," i.e., the


government must demonstrate that the legislation is necessary to further a compelling state interest.

RATIONALITY TEST DISTINGUISHED. This standard departs

from the rationality test of due process in the sense that it requires a much more specific showing of necessity, a much more urgent showing of state interest must be shown in order to validate the challenged legislation, and the burden of justification is on the government (i.e., the usual presumption of the law's validity does not apply). If such a law is not precisely drawn it can be held to be unconstitutionally overbroad.

EXPRESS, IMPLIED AND UNENUMERATED RIGHTS While a more stringent standard of review than the rationality standard is used for all express rights, e.g., speech, religion, the Court has also applied the more demanding standard to rights that are not expressly enumerated in the Constitution. In some cases the rights are implied from the express rights, e.g., rights of association and belief implied from the First Amendment. In other instances, the right appears to be based on considerations such as traditional societal values, contemporary morals, logic and reason, or the consequences of the law for the individual. THE RIGHT OF PRIVACY The Source of the Right of Privacy The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence noted below) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments. The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights remains controversial. Many originalists (believers that Constitution has a fixed and knowable meaning, which was established at the time of its drafting) have argued that no such general right of privacy exists. The Supreme Court, however, beginning in the middle 20th Century and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and, other items, such as termination of medical treatment.


The Penumbral Right of Privacy - The Court has said that there is a right of privacy which lies within the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments i.e., the right was implied from rights which are expressly enumerated. Take a look at the text of these amendments in the Constitution see if you can understand what they meant by “penumbras”. A good example of the “penumbral” effect is the case of Griswold v. Connecticut (1965), the second focus case in your reading. Griswold involves a state criminal statute proscribing the use of contraceptives even by married persons or aiding and abetting the use of contraceptives is a violation of the right of privacy. It is an impermissible intrusion on the marital relations, said the court. Although the Bill of Rights does not explicitly mention "privacy," Justice William O. Douglas wrote for the majority that the right was to be found in the "penumbras" and "emanations" of other constitutional protections. Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment to defend the Supreme Court's ruling. Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment. Justice Byron White also wrote a concurrence based on the due process clause. Two Justices, Hugo Black and Potter Stewart, filed dissents. Justice Black argued that the right to privacy is to be found nowhere in the Constitution. Furthermore, he criticized the interpretations of the Ninth and Fourteenth Amendments to which his fellow Justices adhered. Like many Supreme Court cases several reasons were given by the court for why the state law was unconstitutional, but with the same outcome. i.e. declaring the statute unconstitutional. Since Griswold, the Supreme Court has cited the right to privacy in several rulings, most notably in Roe v. Wade (1973), which is another focus case in your readings. The Supreme Court ruled, in Roe, that a woman's choice to have an abortion was protected as a private decision between her and her doctor. For the most part, the Court has made these later rulings on the basis of Justice Harlan's substantive due process rationale. In Roe and other abortion rights decisions, the Court declared that the right of privacy has its source in the Fourteenth Amendment's guarantee of personal liberty against restrictive state action without due process, but the Court also acknowledged that other courts have ascribed the source of the right of privacy to the Ninth Amendment's reservation of rights to the people. The state's interest in protecting a mother's health becomes compelling after the end of the first trimester of pregnancy. Therefore, the state may regulate the abortion procedure at that point to the extent reasonably required to protect maternal health. Prior to the end of the first trimester, the attending physician and the patient are free to jointly determine without significant state regulation whether the pregnancy should be terminated. After viability, the state has a compelling interest in the potentiality of human life and the state regulation is permissible even if it goes so far as to prohibit abortion except when it is necessary to preserve the life or health of the mother. The Scope of the Right of Privacy - The Court has declared that the scope of the fundamental right of privacy is broad enough to protect the use of contraceptives and a woman's decision whether or not to terminate her pregnancy even if she is a minor. However, the Court, recognizing the greater state interest in minors, has


applied a less stringent standard of review in such cases, and allowed a greater degree of state regulation.

Examples:

o A state may not require consent of the spouse to an abortion since the balance of interests favors the woman who physically bears the child and is most affected by the pregnancy. Nor may state require parental consent during the first trimester since this gives third persons a veto over the decision of a physician and his/her patient. Planned Parenthood of Central Missouri v. Danforth (1976).

o Similarly, the decision of a minor to use contraceptives free of

parental consent is protected by the right of privacy. Carey v. Population Services Int'l (1977). Parental consent as a prerequisite to aborting a pregnancy of an unmarried minor has been held unconstitutional. But, a plurality of the Court suggested that a carefully-drawn scheme requiring judicial approval for a minor's abortion might be upheld. Bellotti v. Baird (1979).

o A state statute requiring physicians treating minor girls seeking

abortions to "notify if possible" the parents does not violate the minor's right to privacy. The holding is specifically limited to un-emancipated minors who failed to demonstrate maturity or negative relationships with their parents. H.L. v. Matheson (1981).

********

Bill of Rights (and 14th Amendment) Provisions Relating to the Right of Privacy Amendment I

(Privacy of Beliefs) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment III (Privacy of the Home) No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV (Privacy of the Person and Possessions) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment IX (More General Protection for Privacy?) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Liberty Clause of the Fourteenth Amendment No State shall... deprive any person of life, liberty, or property, without due process of law.

********** Abortion Funding and Privacy - But the right of privacy is not significantly burdened if government fails to make the right effective by funding abortions even for those dependent on government for their medical assistance. There is no right to abortion funding.

Example:

o A state does not act unconstitutionally if it refuses to provide funding for indigent women who might otherwise be unable to secure an abortion. There is no constitutional obligation that government must affirmatively act to implement the abortion decision of the women. Maher v. Roe (1977); Williams v. Zbarz (1980). (No duty to fund even medically necessary abortions). Nor does a federal statute denying public funding for certain medically-necessary abortions violate Due Process, Equal Protection or the Establishment Clause. While government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those obstacles it did not create. Harris v. McRae (1980).

OTHER UNENUMERATED FUNDAMENTAL RIGHTS In addition to the right of privacy, the more stringent standard of judicial review has been applied to other rights not expressly guaranteed by the Constitution, such as marriage and family life, the right to vote and the right of interstate movement. Since many of the cases involving these rights have been decided under the Equal Protection Clause, we will further discuss this subject in Topic 12. Rights to Marriage and Family Life - The institutions of marriage and family life are' deeply rooted in our nation's history and traditions. Through them, basic moral and cultural values are passed down. They are, therefore, fundamental rights guaranteed by the Due Process Liberty Clause. A more stringent standard of review is appropriate.

Examples:

o A state statute prohibiting interracial marriage violates due process liberty. Marriage is one of the "basic civil rights of man" and is fundamental "to our very existence and survival." The state failed to prove that the law is necessary to the achievement of an overriding government interest. Loving v. Virginia (1967).


S T U D Y T A S K 4

The Movement to Recognize ‘‘Personal Rights’’—Sex?

Two Supreme Court decisions involving sexual preference and particularly the rights of homosexuals, one decade apart, have left the water a mid muddy about where the law now stands with respect to the right to engage in homosexual conduct. The Court first considered the matter in the 1986 case of Bowers v Hardwick, a focus case in your reading, which challenged a Georgia law authorizing criminal penalties for persons found guilty of sodomy. Although the Georgia law applied both to heterosexual and homosexual sodomy, the Supreme Court chose to consider only the constitutionality of applying the law to homosexual sodomy. (Michael Hardwick, who sought to enjoin enforcement of the Georgia law, had been charged with sodomy after a police officer discovered him in bed with another man. Charges were later dropped.) In Bowers, the Court ruled 5 to 4 that the Due Process Clause "right of privacy" recognized in cases such as Griswold and Roe does not prevent the criminalization of homosexual conduct between consenting adults. One of the five members of the majority, Justice Powell, later described his vote in the case as a mistake. (Interestingly, Powell's concurring opinion suggests that were Georgia to have imprisoned Hardwick for his conduct, that might be cruel and unusual punishment.) In 1999, the Georgia Supreme Court struck down the statute first challenged in Bowers as a violation of the Georgia Constitution. In 1996, the Supreme Court again considered gay rights issues in Romer v Evans, a challenge to a provision in the Colorado Constitution (adopted by a 54% to 46% vote) that prohibited the state or its subdivisions from adopting any laws that gave preferred or protected status to homosexuals. (The provision, Amendment 2, effectively repealed anti-discrimination laws in three municipalities in Colorado) By a 6 to 3 vote, the Court found the Colorado provision lacked a rational basis, and therefore to violate the equal protection rights of homosexuals. Justice Kennedy's opinion concluded Amendment 2 was "born of animosity" toward gays. Justice Scalia, in his dissent, accused the Court of "taking sides in the culture wars." Then in 2003 the Supreme Court considered a challenge to a Texas law that criminalized homosexual sodomy, but not heterosexual sodomy. The case, Lawrence v Texas, raised both substantive due process and equal protection issues. Voting 5 to 4, the Court overruled its earlier decision in Bowers v Hardwick and found that the state lacked a legitimate interest in regulating the private sexual conduct of consenting adults. Justice O'Connor added a sixth vote to overturn the conviction, but rested her decision solely on the Equal Protection Clause (which we will discuss in Topic 13).



When a fundamental right is burdened, the Court requires the government to justify the law under a stricter standard of review?

Due process is not violated by a law which provide funding for maternity but denies funding for abortion?

Does Lawrence suggest that laws prohibiting homosexual marriage are unconstitutional? What legitimate interest does the state have, if any, in prohibiting two persons of the same sex from entering into a marriage relationship? What made for a different outcome in Lawrence than in Bowers?

Rev iew Quest ions

1. The Rational Basis Test was quite a change of philosophy on the part of the Supreme Court for reviewing legislation that sought to introduce social, economic or tax legislation? What factors in the 1930s and 1940s led to this change in philosophy?

2. What is the standard of review for issues involving fundamental rights? Name as many rights that are fundamental from your perspective. How many would be fundamental under the U.S. constitution. How is a fundamental right defined?

3. Recently, a legislature of the state of Maryland enacted a statute stating that before a new entrant into the laundry business can be licensed, the State Board of Laundry Regulation must ascertain the "necessity" for the new entrant and find that the existing laundry establishments in the state "are not adequate to meet the public needs." You area a U.S. citizen resident in Maryland and wish to expand your business into Maryland. You have consulted a lawyer, who thinks that the statute is constitutionally invalid on a number of grounds. He thinks that the statute is particularly vulnerable because he believes it violates the Privileges and Immunities Clause of the Fourteenth Amendment. Your lawyer has filed suit in Maryland state court and alleges that the right to choose business is one of the privileges and immunities of United States citizenship protected by the Fourteenth Amendment. Is he right?

4. The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be?

5. The Court in Bowers seemed very concerned about the slippery slope. Could the Court protect homosexual sodomy between consenting adults without also protecting polygamy, adultery, incest, or bestiality? How might lines be drawn between a fundamentally protected right and conduct that might not be considered moral by a significant number of citizens.


Seminar Top ic Topic: Privacy as a Fundamental Right in the U.S. and the Pacific Islands In the United States the courts protect the marital, procreation and abortion rights from laws that would interfere with a citizen’s choice in these areas. High level scrutiny is provided by courts in reviewing such legislation. Though there is sometimes controversy over whether a practice or activity is a fundamental right there is general agreement that the U.S. Constitution through several articles, and namely the 3rd, 4th and 5th Amendments, provide an umbrella of privacy that stems from traditions and historical expectations that government will not intervene in certain matters because they are so personal in nature and do not necessarily effect the fundamental rights of others. Please prepare to discuss and provide your opinion on the following questions and talking points.

How is the scope of protected “privacy” affected by tradition, culture and societal norms in the United States? How about in the Pacific Islands? Would the outcome be any different if the Pacific Islands had never been colonized and had gradually developed their legal systems out of traditional value systems and mechanisms.

Are there any commonly shared Pacific Island cultural traits, traditions or norms that shape this scope? Or can it only be determined on a country by country or community by community basis?

Based on your readings in Topic 10 make a comparative analysis on the following subjects referencing both the United States and your choice of Pacific Island country.

o What are the major enumerated fundamental rights under

the constitution? o Which are the key fundamental rights that are implied, bot

expressed in the constitution? o Are there constitutional provisions defining or implying a

fundamental personal right under the penumbras of privacy? What, if any, are they?

o Abortion is a protected privacy right or a crime?

Be prepared to discuss how each of these topics is (or is not) addressed by the laws and societal norms of your choice of Pacific Island Country.


INDIVIDUAL RIGHTS AND LIBERTIES:

PROCEDURAL FAIRNESS

11 T O P I C



1. Ex Post Factor Law

2. Procedural Due Process: Civil Cases

a. Board of Regents of State Colleges v. Roth

b. Cleveland Board of Education v. Loudermill (1985)

3. Application of Due Process in Matters Involving Non-Citizens Accused of Terrorism

a. Boumediene v. Bush (2008)

b. Boumediene v. Bush and the extraterritorial reach of the U.S. Constitution, Dr. Jean-Marc Piret (2008)



The constitutional prohibition regarding Ex Post Factor Laws

The “interests” that are required to demonstrate that due process is required when there is “state action”.

How the extent of due process required may depend on a balancing of the strength of the individual interest and the government’s reason for not providing certain levels of due process before acting.

When due process may be required extraterritorially in situations involving non-citizens.





P resc r i bed Read ing Board of Regents of State Colleges v. Roth (1972)

Cleveland Board of Education v. Loudermill (1985)

Boumediene v. Bush (2008)

Boumediene v. Bush and the extraterritorial reach of the U.S. Constitution - A step towards judicial cosmopolitanism?, Jean-Marc Piret, Utrecht Law Review.org/ Volume 4, Issue 3 (December) 2008


Due Process and Terrorism - A Post-Workshop Report, American Bar Association Standing Committee on Law and National Security (November 2007)

I n t roduc t ion

In Topic 10 we addressed the development of substantive due process in the U.S. through an evolution of court philosophy on the Bill of Rights, the application of these rights to the States and how Courts have interpreted constitutional text to expand the coverage of protected fundamental rights so that constitutional rights correspond, at least to a degree, with social changes and expectations. The application of constitutional due process is traditionally divided into the two categories of substantive due process and procedural due process. These categories are derived from a distinction that is made between two types of law. Substantive law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as freedom of speech and privacy, whereas procedural due process is concerned with provisions such as fairness of process including the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney. The Due Process Clauses in the Fifth and Fourteenth Amendment are the primary constitutional sources for procedural fairness. The most obvious requirement of the Due Process Clause is if states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property"). Although it may be that the writers of the Constitution used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three interests, no matter how important it is, it doesn't qualify for constitutional protection. Still the definition of these interests is so potentially broad that there is a considerable need for continuing evaluation by the courts.


The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license by a state government may occur without many of the same protections since it doesn’t present the same level of interest or right.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 5th Amendment “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 14th Amendment Due Process Clause

We will begin this topic by examining a very clear statement in the Constitution that supports a fair process – the prohibition against Ex Post Factor Laws. Then we shall move on to the more ambiguously defined and applied due process clause found in the 14th Amendment.

EX P OST FACTO LAW Both the federal and state governments are expressly prohibited from passing any ExPost Facto law. This is stated in Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1. The Ex Post Facto Clauses have been interpreted by the Court to prohibit the enactment of retroactive criminal legislation that significantly disadvantages the offender. The effect, not the form of the law, determines whether it is Ex Post Facto.

Prohibited Retroactivity - The restriction against Ex Post Facto laws would preclude the enactment of laws defining as criminal conduct which was not criminal at the time of its occurrence. Similarly, retroactively increasing the penalty for criminal conduct is also impermissible. The standard derives from a basic legal precept Nulla poena sine lege. No penalty without a law.


Examples: A state statute repealing an earlier statute and reducing the amount of "gain" time for good conduct deducted from a convicted prisoner's sentence, is an unconstitutional ex post facto law as applied to the petitioner, whose crime was committed before the new statute's enactment. Since the petitioner lost “gain time” that had been available under the repealed statute, the effect of the repealing statute was to retroactively impose a punishment more severe than that assigned when the defendant was convicted and thereby retroactively disadvantaged him. Weaver v. Graham (1981).

PROCEDURAL DUE PROCESS: CIVIL CASES

The Fifth and Fourteenth Amendment Due Process Clauses guarantee procedural fairness. Whenever a state or federal practice is challenged as violative of due process, two questions are asked.

a. Interest Affected - is there a deprivation of a significant life, liberty, or property interest so that the Due Process Clause applies? It does not matter whether the interest is characterized as a "right" or a "privilege." If it is a significant due process interest, procedural fairness is required. However, thus far the Court has only recognized due process as applying to benefits that are "presently enjoyed," i.e., due process is not applied to the application for benefits.

b. Procedures Affected - in the particular factual context, what procedures are required to assure fundamental fairness? The minimum procedures demanded by due process are notice and a hearing. What is fair is determined by balancing the interests favouring summary determination against the harm to the person aggrieved. Courts in making this determination consider three factors: (1) the severity of the harm to the litigant if the requested procedures are not granted; (2) the risk of error if the procedures are not afforded; and (3) the administrative difficulty and cost of providing the added procedures.

What is "Property"? - While property is not limited to interests in realty or personality, the fact that an interest is important to an individual is inadequate to create "property" for due process purposes. Property has thus far been limited to interests recognized by government. For government benefits to constitute property, therefore, the person seeking due process must show some entitlement created by government. What is "Liberty"? Liberty is a broad concept not limited to conditions of confinement such as imprisonment. It includes interests such as marriage, raising a family, working in the common occupations of the community. Unlike property interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution. Deprivations of certain basic liberties (such as the freedom to travel, the freedom to live with and raise children, the freedom from incarceration, or the freedom to not be subjected to physical


violence or forced medical treatment) will trigger a requirement that the government afford due process. But not every serious injury inflicted by the government is necessarily a deprivation of a liberty interest, according to the Court. Two cases involving damage to reputation illustrate that the imposition of stigma by government officials without more, does not violate liberty. In 1971, in Constantineau v Wisconsin, a case involving a governmental posting of the names of "excessive drinkers," the Court concluded that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty interest in her good name and reputation, the Court said. However, five years later in Paul v Davis (1976), a case involving the government's distribution of a list of "active shoplifters," the Court reversed course and held that damage to an individual's reputation--standing alone--is not deprivation of a protected liberty interest. In Paul distribution of the flyer by the police identifying a person as a petty thief (shoplifter), even though the person had only been arrested, not convicted of the offense, did not violate due process liberty. The Court distinguished Constantineau, now finding that the individual's additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case.

Recurring Fact Situations

1. Welfare Rights

The Statutory Entitlement Concept - A person who qualifies to receive welfare benefits has a statutory entitlement to receive benefits. Whether welfare is deemed a right or a privilege, this is a significant property interest and due process must be afforded.

Balancing to Determine Fairness - In determining what process is due, the state interest in conserving fiscal and administrative resources is balanced against the importance to the welfare recipient of uninterrupted benefits.

Examples: Welfare benefits to a qualified recipient with children cannot be terminated prior to a hearing. Given the dependence of the recipient on the benefits for subsistence, the importance to the state that persons receive such subsistence and the absence of any emergency justifying summary procedures, due process requires timely notice indicating the basis for termination, and a hearing before an impartial examiner in which the recipient may appear personally, with or without counsel, to present evidence and confront and cross-examine adverse witnesses. Goldberg v. Kelly (1970).


2. The Right to Use and Possess Property: Consumer Credit and Due Process

a) Wages as a Property Interest - Wages constitute a specialized type of property interest protected by due process. Given the effect of even a temporary loss of such wages by garnishment, notice and a hearing must be afforded prior to statutorily-recognized garnishment of wages in an action instituted by a credit company to recover debt. Sniadach v. Family Finance Corp. (1969).

b) Contingent Interests in Property - The purchaser of goods under a contingent sales contract has a significant property interest in the use .and possession of such goods. The due process guarantee has been extended in some situations to relationships which have not yet matured into property rights. Due process must be afforded but in some cases summary adjudication may provide sufficient fairness.

Examples: o Procedural due process requires that before a state may

authorize the summary seizure of goods or chattels in a person's possession under a writ of replevin, upon the mere ex parte application by a creditor to a court clerk, the state must provide an opportunity for hearing to the person in possession of the goods. The function of the hearing is to prevent unfair and mistaken deprivation of the "property" interest. Fuentes v. Shevin (1972).

o A state statute permitted garnishment of commercial accounts upon mere conclusionary allegations in an affidavit issuable by a clerk (not a judge) and made no provision for early hearing. The garnishment could be dissolved only by filing a bond to protect the creditor. The procedure was declared to violate due process. Since there still existed the likelihood of irreparable injury to property interests, the fact that the case involved garnishment of a corporation's bank account rather than household goods was deemed immaterial. North Georgia Finishing, Inc. v. Di-Chem, Inc. (1975).

3. Employment Rights of the Public Sector

Conditions of Employment - It is not always clear whether a public employee, e.g. employed by the government, has a due process property interest in continued employment, requiring at least notice and hearing. It may depend on the conditions of the employment. A person must have more than a subjective expectancy of continued employment. The expectation must be created by the state. Let’s take a look at Board of Regents v. Roth (1972). Roth is one of the focus cases in your readings that illustrates the factors influencing


whether a public employee has a protected “property interest” that requires due process protection. Board of Regents v Roth shows how the Court has defined "property" interests for purposes of the due process clause. The case involved the decision of a public college not to renew the contract of an untenured professor. The Court concluded that the professor had no "liberty" interest in any specific teaching job, and that he had no "property" interest in his job because he lacked "a legitimate claim of entitlement" under state law to his job. The Court noted that he would have had such a claim of entitlement had he been tenured, because then the college would have had to make a specific showing of poor performance in order to sustain its dismissal. Without a legitimate claim of entitlement to his job, the Court reasoned, there is nothing to have a hearing about. Property interests, the Court stress, must be found in the statutory or common law of the jurisdiction. The same year that Roth was decided the Supreme Court addressed a similar issue with slightly different facts to illustrate how a property interest was established in public employment in the case of Perry v. Sindermann (1972).In that case the Court decided that a state college teacher who has held his position for a number of years may be able to show a legitimate claim of entitlement to job tenure even in the absence of a formal tenure system. The college rules, regulations, and practices can create a de facto system of tenure, i.e., an entitlement, it said. Although a mere subjective "expectancy" is not protected by due process, the teacher is entitled to be given an opportunity to prove the legitimacy of a claim of entitlement. If such a property interest is proved, the teacher is entitled to hearing by the college where he could be informed of the grounds for his nonretention and challenge the sufficiency of the grounds. In another one of your focus cases, Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees any right to a hearing, it should have the flexibility to give them a right to a hearing, but allow a pre-hearing suspension without pay. The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined as a matter of federal constitutional law, not state statutory law.

Employment at Will-Conditional Property Interests The termination of a policeman's employment without a hearing pursuant to a city ordinance providing for discharge for negligence, unfitness, and unsuitable conduct, was held not to violate due process. A public employee whose position is terminable at the will of the employer is not deprived of "liberty" when there is no public disclosure of the reasons for the discharge. Similarly, there is no "property" interest infringed when the ordinance involved is construed as "granting no right to continued


employment" but merely conditions removal on satisfactorily complying with certain specified procedures. Bishop v. Wood (1976). State-Created Causes of Action - A state-created cause of action which cannot be dismissed except "for cause," creates a due process property interest. State specification of procedures is not determinative of due process requirements. Rather, the procedures required for terminating such an interest is a federal constitutional question for the courts.

Example:

o In Logan v. Zimmerman Brush Co. (1982), it was found that a state termination of a complainant's cause of action because a state official, for reasons beyond the complainant's control, fails to comply with statutorily mandated procedures violates procedural due process. The Illinois Fair Employment Practices Act (FEPA) creates a cause of action for employment discrimination based on physical handicaps unrelated to job ability. The plaintiff's FEPA claim constitutes an entitlement which cannot be denied except "for cause"-this suffices as a due process property interest. The Court applied the three-part test for determining what process is due. The employee's interest in retaining employment, disproving alleged inability and redressing discrimination are all substantial interests. Since termination of the claim is the result of random chance resulting from the Commission's failure to act, there is a high risk that meritorious claims will be defeated. Finally, there is no undue burden on the state in considering the merits of the employee's claim.

4. Institutional Due Process - Procedural due process issues have

frequently arisen in the context of the judicial review of the practices of public institutions such as prisons, schools, and mental hospitals. While officials in such institutions exercise broad discretion, the courts have increasingly demanded adherence to fair processes in admission and administration. For example, while confinement in a mental hospital may not constitute imprisonment, it does involve significant curtailment of a liberty interest requiring due process. Involuntary confinement requires at least "clear and convincing evidence".

Examples: o Transfer of an incarcerated prisoner to a mental hospital

implicates a liberty interest protected by due process. First, a liberty interest is created by a statute specifying certain conditions for transfer and by commitment to the mental hospital. The stigma and subjection to mandatory behaviour modifications treatment also implicate significant liberty interests. Weighing the interest of the prisoner in not being arbitrarily stigmatized and subjected to involuntary treatment and the substantial risk of error against the state's interest in


segregating and treating mentally ill prisoners, the Court held that the process requires written notice, a hearing at which evidence is heard, including a right of presentation, confrontation and cross-examination, an independent decision maker, a written statement by the fact-finder, effective and timely notice of rights, and qualified and independent assistance of legal counsel. Vitek v. Jones (1980).

o A child voluntarily committed by its parents to a mental

institution has a constitutionally protectible liberty interest at stake given the confinement and stigma involved. In determining what procedures are due, the interests of the parents and the child are presumed to be the same since parents generally act in the child's best interests. State interests in effective use of its resources and avoidance of excessive procedures are also to be considered. The risk of error is sufficiently great to require some inquiry (an informal medical hearing would suffice) by a neutral fact finder to assure admission requirements are satisfied, and thereafter to assure that there is a continuing need for confinement. Parham v. J.R. (1979).

o Compare these examples with the case in Jago v. Van Curen

(1981) in which the Court found rescission of a decision to grant purely discretionary parole to a prisoner prior to actual release, without any hearing, based on alleged false statements by the prisoner to the parole board, does not violate due process. While the prisoner suffers grievous loss, the Court found this does not mean that he has a "liberty" interest. Neither his subjective expectation, even though based on understandings with the parole board, nor the state laws governing parole created a liberty interest. The Court can sometimes seem to be “splitting hairs” over fact situations to draw the line between when a due process interest is at stake and when it is not.

o While a prisoner does not have a constitutionally protected

liberty interest in remaining with other prisoners and not being administratively segregated following his involvement in a prison riot, explicit mandatory language in state statutes and regulations can create such a liberty interest. In this instance, due process was satisfied since the state met its minimal obligation "to engage in an informal, nonadversary review of information supporting [the prisoners] administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation."

o The prisoner's interest was not of great consequence since he

was merely transferred from one extremely restricted environment to an even more confined situation. The


government's interest in the safety of guards and inmates involved "the most fundamental responsibility of the prison administration." Informal procedures provided by the prison provided a reasonably accurate statement of probable cause to believe that charged misconduct occurred and the value of additional procedures was slight. Hewitt v. Helms (1983).

5. Parental Rights - The interest of natural parents in the care, custody, and

management of their children involves a fundamental liberty interest. In determining what process is due, this liberty interest of the parents is commanding and weighs heavily. But the state interests may still outweigh the parental liberty interest.

Examples: Due process requires use of the "clear and convincing" evidentiary standard before parental rights are terminated for unfitness. Use of the "fair preponderance" standard violates due process. There is a significant risk of error and the consequences of erroneous termination of parental rights generally outweigh the consequences of erroneous failure to terminate the parental relation. Accuracy in fact-finding also serves the state interest in the child's welfare by preserving the natural familial bonds while doubt remains. Since the clear and convincing standard is regularly used in other proceedings, there would be no excessive administrative burden on the state fact-finders. Santosky v. Kramer (1982). An indigent parent is not necessarily denied procedural due process guarantees where the state fails to appoint counsel in a parental-status termination proceeding. There is a general presumption that the due process safeguard of appointed counsel will only be required where there is a possible deprivation of personal liberty. To rebut this presumption, the private interests at stake, the risks of an erroneous decision, and the state's interest must be considered. While the balancing of these factors does Favour the parent's interests in many cases, whether it is sufficient in a particular case to overcome the presumption against appointed counsel must be determined on a case by-case basis. The record in the present case indicated that the absence of counsel had not denied fundamental fairness. Lassiter v. Dept. of Social Services (1981).

6. Student Rights

Courts have been reluctant to intrude into the sensitive area of school-Student relationships and have generally recognized broad power in school authorities to act in loco parentis. But the Court has now indicated that due process does protect the liberty and liberty interests of a student.

Examples:


o A state statute allowing school principals to suspend students

for misconduct for up to ten days without a hearing violates due process. Because state confers a system of free public education on its children there is an "entitlement," i.e., a property interest. Since the suspension could impose a stigma, the child’s liberty interest is infringed. Balancing these interests against the state's interests in maintaining order and discipline, the court held that due process require a student be furnished at least notice of the charges against him, an explanation of the evidence against him and an opportunity to reply. Goss v. Lopez (1975)

o Charlotte Horowitz failed to graduate from medical school

because of poor performance in clinical courses and her lack of concern for personal hygiene. She was notified of the reasons for the school’s actions and afforded a hearing and appeal at which she could respond. She was not, however, accorded an opportunity to appear personally. Assuming that such a dismissal denies a property or liberty interest, the Court was unanimous that due process was satisfied by the procedures afforded. A number of justices indicated that due process standards are more easily satisfied when the procedures invoke academic rather than disciplinary considerations. Board of Curators v. Horowitz (1978)

7. Due Process Rights in the Military Sector

Military Courts - Pursuant to its Art. I powers to provide regulations for the governance of the land and naval forces, Congress has created a system of military courts. Questions have arisen regarding the proper jurisdiction of these military courts. Status - Military jurisdiction is generally limited to military personnel. I t does not extend to military dependents or civilian employees at least during peacetime} even when they are abroad. Types of Crimes - Even if military personnel are involved, there is a limitation regarding the kind of criminal offenses subject to military court jurisdiction. Only if a crime is service-connected or committed on military grounds does the military court have power to act. If it is predominantly a civilian-type offense committed outside military grounds, the civil courts have jurisdiction. Callahan v. Parker (1969); Relford v. Commandant (1971). Primary Jurisdiction of Military Courts - When a soldier charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military justice system, the federal courts must refrain from equitable intervention. If it is subsequently held that the military courts lacked jurisdiction, they would similarly lack power to impose any punishment. Schlesinger v. Councilman (1975)


CONCLUSIVE PRESUMPTIONS Conclusive presumptions are created when statutes conclusively presume that certain facts exist which categorize individuals into a class subjected to burdens not visited on others, even though the presumptions may be wrong in a certain case. The denial of an opportunity to challenge the presumption has been generally held to violate due process. When critical due process interests of the individual are lost by government action, he or she must be afforded an opportunity for a hearing to prove that the fact presumed is not true in his or her case. Courts may hold laws creating classifications violative of the due process, using the irrebuttable presumptions concept, rather than analysing the classification under the Equal Protection Clause.

Example:

School board rules requiring every pregnant school teacher to take a maternity leave without pay a specified number of months (five and four months in the two statutes challenged) before the expected birth of her child were to violate due process. To assume that all women teachers were physically unfit to continue employment beyond the designated date assumed a fact that was not true in individual cases. Since the critical interests in marriage and family life were at stake, the use of the conclusive presumption of unfitness violated due process. Individualized determinations were required to satisfy due process. The Court held also that the rules had no relationship to the school's interest in assuring continuity of instruction. Cleveland Board of Education v. La Fleur (1974).

Exception. When the irrebuttable presumption involves a noncontractual claim to receive public funds, and claimants are permitted to present evidence that they meet objectively defined statutory requirements for eligibility, the presumption is constitutional if rationally based. No significant liberty or property interest is impaired. For example, in Weinberger v. Salfi (1975), a Social Security Act provision preventing wage earners, widows and step-children from recovering benefits if their relationships with the wage-earner began less than nine months before the wage earner's death was held to be constitutional. Congress could rationally conclude that such a presumption would preclude the use of sham marriages to obtain Social Security benefits and that it would avoid the expense and difficulty of individualized determinations. It was therefore permissible to bar a widow from recovery even though the wage earner was in good health at the time of the marriage.


S T U D Y T A S K 1

SUMMARIZING - The following table summarizes the process of “proving” that a procedural due process violation has occurred.

PROOVING A PROCEDURAL DUE PROCESS VIOLATION

LIFE

LIBERTY

PROPERTY

1. Show that the government has deprived a person of a non-trivial protected interest, one that the Supreme Court would recognize as falling into one of the three boxes above.

2. Show that the loss of the process which is claimed owed to the person (taking into account the seriousness of the deprivation and including the added risk of an erroneous deprivation) outweighs the government's interests in not affording the process in question.

When that two-part proof is established fundamental fairness requires the following:

1. The government must provide notice of the charges against the person.

2. The government must be able to show that there is an articulated (non-vague) standard of conduct which the person is accused of violating.

3. The government must provide the person with an opportunity to rebut the charges against the person in a meaningful way and at a meaningful time (the "hearing requirement").

4. In order to sustain its position (i.e., its deprivation of the person’s liberty or property), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.

5. The government must provide some explanation to the individual for the basis of any adverse finding.

Please respond to following questions and explain your answer.

Who is protected by the Due Process Clause? Does it protect, for example, non-citizens living in the U.S.?


How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?

How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Would damage to one's reputation caused by state action be enough to trigger due process?

What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?

Conclusive presumptions always violate due process?

Which of the following is least likely to qualify as a sufficient interest for invoking the due process guarantee?

a) The interest of a purchaser in a contingent sales contract.

b) The interest of a state employee under an “at will” contract.

c) The interest in a state cause of action.

d) A student’s interest in not be suspended from school.

Due Process and Te r ror ism

In Topic 6 we examined the case of Hamdi v. Rumsfeld in the context of limitations on the President’s executive power. Hamdi was a case dealing very much with the due process afforded a U.S. citizen held at the U.S. naval base in Guantanamo, Cuba. Guantanamo is infamous as a U.S. military prison for persons detained outside of the U.S. as “enemy combatants” or suspected terrorists in President Bush’s so called “war on terror”. Many of the persons detained in Guantanamo have been held for up to seven years without charge raising controversy within the U.S. on whether President Bush not only exceeded his powers, but whether the U.S. government is unconstitutionally depriving Guantanamo prisoners of due process of law. It has also raised questions about whether state action to protect the U.S. against terrorism requires exceptions to even the minimal due process standards.

On June 12, 2008, the US Supreme Court issued a historic decision in Boumediene v. Bush, striking down the part of the Military Commissions Act of 2006 that sought to strip federal habeas corpus jurisdiction over the petitioners, six natives of Algeria who had immigrated to Bosnia where they were detained by U.S. military forces. The petitioners were imprisoned at the United States Naval Station at Guantanamo Bay since 2003. The decision, written by Justice Anthony Kennedy and joined by four other justices, is the first time the Court has held an act of Congress violated the Suspension Clause of the Constitution. Taking Hamdi v. Rumfield a step further they also ruled that non-citizens detained by U.S. military forces outside of the U.S. have a right to due process to determine Habeas Corpus and that the required due process must be defined by the Constitution and not a military statute. Note that Boumediene applies to what the U.S. government was referring to as “unlawful enemy combatants”, which are


S T U D Y T A S K 2

distinguished from enemy combatants that must abide by and be protected by the Geneva Conventions on the Conduct of War. We will discuss Boumediene more in this week’s seminar. What then are the rights of non-citizens to procedural due process? The short answer is that the due process protection afforded non-U.S. citizens living in the United States is not as extensive as that provided to a citizen. The primary reason is that non-citizens, unless provided specific statutory rights, have a more difficult time establishing that they are entitled to a constitutionally independent due process. That is not to say that non-citizens have no constitutional right to a fair process or that the process afforded is always inferior. For instance noncitizens have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel. On the other hand, iimmigrants facing deportation are entitled to a hearing before an immigration judge, representation by a lawyer (but not one that's paid for by the government), and interpretation for non-English-speakers. But the due process required may be lower than what would be required for a U.S. Citizen or legal resident. For example in deportation hearings the government must provide "clear and convincing" evidence to deport someone (a lower standard than "beyond a reasonable doubt" used in criminal cases where “liberty” is also at issue). In other cases there may just not be a defensible due process interest for the non-citizen. A non-citizen would have a difficult time claiming that denial of her application to vote in a presidential election required due process since the Constitution only grants citizens the right to vote for President. The report on a symposium titled “Immigration Law: The Constitutional Rights of Non-Citizens” is a very good short read for those who would like to understand a bit more about the constitutional rights of non-citizens in the context of immigration law.

How important to the majority opinion in Boumediene were the elements of citizenship, military status and territoriality?

What is the due process interest of the petitioners? What is the government’s countervailing interest?

Would the courts’ decision have been different if the person’s detained were not “unlawful combatants” but instead persons attempting to enter the United States illegally and then detained at Guantanamo? What in your opinion is the due process interest of illegal immigrants compare to “unlawful combatants”?


Rev iew Quest ions

1. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?

2. A U.S. state law requires that pharmacies must be operated by pharmacists in good standing or by a corporation or association predominately controlled by pharmacists. The State Board of Pharmacy denied a permit to a drugstore because it did not comply with the stock ownership requirements of the statute. The drugstore contended that the state statute is unconstitutional on the ground that the Due Process Clause of the 14th Amendment guarantees that no person should be denied the opportunity to pursue gainful employment. It argued that the requirements of the statute were not nationally related to the drug stores ability to perform its task or role competently and otherwise in good order. Is the State statute constitutional?

3. Non-Citizens of the U.S. detained by the U.S. government against their will outside the territory of the United States would always be outside the reach and protection of the U.S. Constitution. Please explain why this statement would not always be true.

Seminar Top ic Topic: Due Process as a Universal Right? The focus of this week’s seminar is the extraterritorial application of the constitutional concepts of due process and habeas corpus. In addition to reading Boumediene v. Bush, please read Professor Jean-Marc Piret’s article titled Boumediene v. Bush and the Extraterritorial Reach of the U.S. Constitution. Please be prepared to discuss the following questions. Does the Supreme Court’s decision in Boumediene v. Bush helps further the proposition that essential human rights are part of the natural law that requires enforcement by all governments regardless of constitution? Four models are described by Prof. Piret. He states that the “…fourth model considers a constitution to be a contract balancing power between the governors and the governed. Individual rights of the governed may then be restricted in order to give room to the legitimate interests of the Government and, vice versa, the Government’s power can be restricted in order to give priority to individual rights.” Does this create a whole new level of law applied only to certain persons, with a certain legal authority, in certain places where there is a certain governmental authority?


By extending constitutional due process and the Great Writ to certain foreign citizens who are under authority of the U.S. government, does this conversely mean that foreign citizens might be held to certain statutory or constitution obligation of the U.S. government?

What is the potential influence of Boumediene? Is it limited to places like Guantanamo and to the detention of “unlawful combatants”? Could it be applied to combatants as defined by the Geneva Conventions? Are there scenarios in the Pacific Region where the rationale of Boumediene might be applied by other courts to other governments?


INDIVIDUAL RIGHTS AND LIBERTIES: EQUAL PROTECTION

12 T O P I C



1. Introduction

a. Historical Background of “Clause”

b. Evolving Social Influences

c. General Standards

2. Levels of Scrutiny Under the Equal Protection Clause

a. Three Levels of Review

i. Rational Basis

ii. Strict Scrutiny

iii. Intermediate Level

b. Racially Segregated Public Facilities

c. Racially Segregated Education

3. Proving Discrimination, State Action Requirement and Affirmative Action



The origins of the Fourteenth Amendment’s Equal Protection Clause and the social context related to its development.

The three levels of analysis provided by the Supreme Court cases involving assertions that the Equal Protection Clause has been violated.

The fundamental rights protected by the Clause and other rights and interests that may be protected though not fundamental.

How the equal protection analysis is applied to specific classifications involving racial discrimination and voting rights.

The elements of proving a violation of the equal protection clause.

The requirement of state action

The rationale behind affirmative action to correct past discrimination and challenges to affirmative action in the courts.

How Pacific Island countries compare in respect to equal protection principles in the U.S. and why there may be differences.





Presc r i bed Read ing Rational or Minimal Scrutiny Test

o Plyler v. Doe (1982). Racially Segregation in Public Facilities and Schools

o Plessy v. Ferguson (1896)

o Korematsu v. United States (1944)

o Brown v. Board of Education (1954)

Voting Rights

o Bush v. Gore (2000)

o Crawford v. Marion Election Board (2008)

State Action

o Edmonson v Leesville Concrete (1991)


Affirmative Action:

o City of Richmond, Appellant v. J.A. Croson Company (1989)

o Bakke v. Regents of the University of California (1978)


INTRODUCTION and GENERAL STANDARDS

"No STATE shall deny to any person within its jurisdiction the equal protection of the laws." 14th Amendment, Equal Protection Clause

Constitutional Text - The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. While there is no corresponding provision applicable to the federal government unreasonable classifications by the federal government violate the Fifth Amendment due process clause. To fill this constitutional gap the Court in Bolling v Sharpe (1954) found segregation in the public schools of Washington, District of Columbia (D.C.) violated the Constitution. The District of Columbia is not a state and as the administrative district of the nation’s capital area is under the supervision of the U.S. government. That raises the issue of whether pesons living in the District of Columbia have the right to equal protection. Chief Justice Warren wrote:

"The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process."

Bolling (and its so-called "reverse incorporation") seems to leave open the possibility that the Federal Government will be given, in some cases, more flexibility than the states to draw legislative classifications. On a positive side this type of interpretation might leave the door open for the Federal government to institute reverse discrimination measures that might help certain classified groups recover from generations of discrimination. For example, the federal government’s attempts to improve opportunities for African Americans through less stringent admission policies, though arguably an unequal protection of laws might not necessarily violate the 5th Amendment’s implied equal protection right if corrective actions of government are excused because they further equality. (See affirmative Action, infra) Equal protection of the law could become confused with equality among people. It, of course, has nothing to do with equality and provides only that there is equal protection of the law. It only really becomes a relevant concept when there is alleged discrimination in the application of a constitutional or statutory right or protection. Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for


deciding when a classification is unconstitutional. The Supreme Court has dictated the application of different tests depending on the type of classification and its effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has "a rational basis" to a "legitimate state purpose." The Supreme Court, however, has applied more stringent analysis in certain cases. It will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.

Many features of U.S. equal protection reflect the peculiarities of U.S. history and the evolution of societal norms and tolerance. It was not until 1863 that African American slaves were emancipated and it took literally another one-hundred years before they gained anything close to equal protection under the law despite the 14th Amendment’s fairly clear equal protection language. Likewise women were not able to vote in national elections until the 19th Amendment was enacted in 1920 because the 14th Amendment provision for voting applied only to males. Nevertheless the principle of equal protection grew through generations of societal change, amendments to the Constitution, civil rights statutes and judicial decisions. The “equal protection” clause expressed in the 14th Amendment and implied in the 5th Amendment is certainly not unique in the realm of world constitutions. It was the embodiment of the principles of liberty in the Declaration of Independence and in the U.S. Constitution. It was very much an imperfect fundamental concept imbedded, but not clearly declared in its implementation until politically safe to do so after the civil war ended in 1865. Three years later it became part of the Constitution.

The basic concept of equal protection of the law has been emulated in other constitutions and laws, and is endorsed in international law through Article 7 of

Standard - Not all classifications of people violate equal protection since law generally involves different treatment of persons. Only when a classification is unreasonable, arbitrary and invidious, does it violate equal protection. The Criteria for Reasonableness – Reasonableness of a classification is dependent on: (1) the basis of the classification; (2) the nature of the interests impaired by the c1assification; (3) the government interests supporting the classification.


the Universal Declaration of Human Rights which states: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

Now many constitutions in the world have at least some reference to the concept of equality and some variation of “equal protection of the laws” that can at least be implied. Many have far more text around the “equal protection” bone than that included in the U.S. Constitution. Constitutions of Pacific Island nations illustrate substantial equal protection of law clauses in their constitution and some have institutionalized “affirmative action” in their constitution. For example, the Constitution of the FSM at Article IV provides at Sections 3 and 4.

A person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws. Equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status.

The influence of the United States due process clause is quite noticeable in the text of Section 3 of the FSM Constitution. In Section 4, the FSM Constitution goes a step further and defines the categories of protection. This definition of protected classes is something that only exists in U.S. statutory law. In the Constitution of Fiji, Section 38 (Equality), extensive constitutional coverage is given to the principle of equal protection. It states:

Every person has the right to equality before the law. The Constitution of Fiji also describes particular classifications that are provided protection “including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others….” Indeed the Fiji constitution goes a step further than the U.S. constitution when at clause 6(k) it recognizes a place for “affirmative action and social justice programs to secure effective equality of access to opportunities, amenities or services for the Fijian and Rotuman people, as well as for other communities, for women as well as men, and for all disadvantaged citizens or groups, are based on an allocation of resources broadly acceptable to all communities”… Even governments not known for democratic values reference the concept of equality under the law such as North Korea and Saudi Arabia. For example, the North Korea Constitution contains among the 23 fundamental rights of citizens a guarantee that “Citizens enjoy equal rights in all spheres of State and public activity.” It goes into significant detail concerning the equal protection to be afforded women and measures the State can take to promote this equality. The North Korea Constitution is notable in that it makes no provision for equal protection for non-citizens. Article 8 of the Basic Law of Saudi Arabia provides the “Government in the Kingdom of Saudi Arabia is based on the premise of


S T U D Y T A S K 1

justice, consultation, and equality in accordance with the Islamic Shari'ah.” The Shari’ah used in Saudi Arabia is a religious document that actually establishes more discriminatory classifications than provisions for equal protection under law. Equal protection of the law seems like an enormously simply proposition doesn’t it? The answer is yes, but the realities of society and the law and their interplay beg for an answer that is not quite so clear. Indeed as we shall see in this topic “equal protection of the law” is a fluid principle in the United States. Its definition is more clearly seen by the lines drawn by the discrimination it seeks to prevent and the level of scrutiny applied by the courts. In this topic we will sketch both of these concepts while analysing the U.S. Supreme Courts evolving interpretation of the Equal Protection Clause from the time of the ratification of the Fourteenth Amendment after the U.S. Civil War until the present debates about programs to remedy past discrimination through affirmative action programs. First we will examine the tests applied by the Supreme Court in reviewing legislation, regulations and governmental activities that are suspected of violating the Equal Protection Clause. Then we will look at a variety of individual rights and interests and see how the Court applies particular levels of scrutiny to decide if there has been a violation of the equal protection clause. We will finish up this topic with a brief discussion about the requirement of “state action”, the levels of proof required to show unconstitutional discrimination and policies of “affirmative action.” The topic for this week’s seminar is a comparative analysis and discussion about equal protection in the U.S. and the Pacific Island countries, and the historical and social circumstances influencing its establishment and application.


The principle of equal protection under the law was firmly imbedded in the U.S. Constitution since it was ratified in 1789?

A constitution with very specific terms defining the scope of an equal protection of law clause would always be superior to one that does not?

The 14th Amendment Equal Protection Clause places an obligation on the states and the federal government to uniformly apply laws?


Note about Sources of Constitutional Interpretation You may now have become a bit familiar with the Supreme Court through your readings. It is good to think of the Supreme Court has a forum for competing views about the constitution, the limits of government and the rights of persons. There are five generally agreed upon sources that have guided the Court in its interpretation of the Constitution.

1. the text and structure of the Constitution, 2. intentions of those who drafted, voted to propose, or voted to ratify the

provision in question, 3. prior judicial precedents, 4. the social, political, and economic consequences of alternative

interpretations, and 5. natural law.

There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when each points in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called "originalists." Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called "non-originalists." In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain "fundamental rights" that are not explicitly protected in the text of the Constitution. As you read through the cases in this topic try to identify how the justices (in majority, concurring or dissenting opinions) might be categorized into schools of thought about the sources of constitutional interpretation and how liberally they are inclined to interpret constitutional text.

Originalists and Non-Originalists

Textualist: An originalist who gives primary weight to the text and

structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent."

Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good.

Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.

Examples of Originalist Justices Justice Hugo Black Justice Antonin Scalia Justice Clarence Thomas Examples of Non-Originalist Justices Justice Harry Blackmun Justice William Brennan Justice William O. Douglas


Leve ls o f Scru t iny under the Equa l P ro tec t ion C lause

Overview

Legislation frequently involves making classifications that either advantage or disadvantage one group of persons, but not another. The state governments in America allow 18-year-olds to drive, but don't let 12-year-olds drive. Indigent single parents receive government financial aid that is denied to millionaires. Obviously, the Equal Protection Clause cannot mean that government is obligated to treat all persons exactly the same--only, at most, that it is obligated to treat people the same if they are "similarly circumstanced." Over recent decades, the Supreme Court has developed a three-tiered approach to analysis under the Equal Protection Clause.

1. Strict Scrutiny – under this highest level of scrutiny the government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. It is applied to classifications involving race, national origin, religion and alienage, and to fundamental rights involving denial of the vote, interstate migration, access to the courts and other rights that may be recognized as fundamental.

2. Middle-Tier Scrutiny – for this middle level of scrutiny the

government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to that interest. This level of scrutiny would be applied to quasi-suspect classifications such as gender.

3. Minimum or Rational Basis Scrutiny - Minimum scrutiny applies

to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens. The government at this level need only show that the challenged classification is rationally related to serving a legitimate state interest.

We will next look at each of these levels of scrutiny in more detail with a particular focus on strict scrutiny and issues involving race and voting.


RATIONAL BASIS SCRUTINY Recall that we discussed in Topic 10 the rational basis test in the context of due process analysis and its application to economic issues. The Equal Protection Clause of the Fourteenth Amendment traditionally as been interpreted to grant the states a wide measure of discretion with respect to making classifications in enacting legislation. As long as a classification set forth in a statute has some rational basis, i.e., it is rationally related to a permissible government interest, the Equal Protection Clause is not violated because a particular measure results in some inequality. This rational classification test operates as follows:

1. If the classification in a law is challenged on the basis of the Equal Protection Clause, if any state of facts reasonably can be conceived that would sustain the legislation, the existence of that state of facts at the time the law was enacted will be presumed.

2. One who challenges a state law on the basis of the Equal Protection

Clause has the burden of showing that the classification has no rational relationship to a permissible governmental purpose and is essentially arbitrary. This burden of proof, until recently, has proven essentially insurmountable.

Examples:

A city ordinance prohibited ads on the side of trucks but made an exception for those who owned their trucks and used their vehicles to advertise their own business. It was contended that the prohibition drew an arbitrary line between advertisements of products sold by the owner of the truck and other truck and general outdoor advertising. The Court held that the local authorities may reasonably have concluded that those who advertise their own wares on their trucks do not present the same traffic safety problems in view of the nature or extent of the advertising which they use. . REA v. New York (1949) A ban on plastic nonreturnable milk containers while permitting the sale of milk in other nonreturnable containers, such as paperboard milk cartons, does not violate the equal protection guarantee. The state legislature could rationally have decided that its ban on plastic milk jugs might foster greater use of environmentally desirable alternative containers. Where the evidence on whether the classification would help to conserve energy and landfill space was at least debatable, the courts are not to substitute their judgment for that of the legislature. Minnesota v. Clover Leaf Creamery Co. (1981). A state constitutional provision subjected corporations and other entities but not private individuals to ad valorem personalty taxes. The Court held that such a distinction did not violate the equal protection principle since states have wide latitude in defining what they deem to be reasonable tax classifications. Lehnhausen v. Lake Shore Parts Co. (1973).


Recent Trend to Balancing the Rational Basis Analysis The traditional rational basis test is extremely deferential to the government. Under this traditional test, a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state. Moreover, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation. It is enough if the interest is now advanced and that it is "conceivable." In some cases, however, when the disadvantaged group is a sympathetic one and the individual interest affected is especially strong, the rational basis test is applied differently. Plyler v Doe (1982), one of your focus cases, involved a challenge to a Texas law that denied to the children of illegal immigrants a public education. In Plyler the Court compared the weight of the state's asserted interests--which it found to be very weak--against the substantial harm to the plaintiffs, and determined the laws in question to violate the equal protection clause. I In Plyler and a handful of other cases the Court has indicated a willingness to utilize a somewhat more stringent approach in traditional review. In these cases, the Court's analysis more closely approximates true ad hoc balancing to determine the reasonableness of the law. In Plyler the Court was asked to review the question of whether a Texas statute that denied free public education to children of illegal immigrants while providing it to children of citizens or legally admitted immigrants violated equal protection. While illegal alien children are not a suspect class, they do constitute an underclass ("a permanent caste") said the court. While education is not a constitutional right, the Court held that it has "a fundamental role in maintaining the fabric of our society." The state failed to show that the discrimination was justified by a substantial state interest. The actual application of the rational test in Plyler differed from that traditionally used in cases where no suspect classification or fundamental right was involved in at least one important respect: the Court in this and several other cases weighed the state's asserted interests and compared them to the strong individual interests at stake instead of just a straight forward examination of whether the Texas statute had a rational basis to a permissible purpose. INTERMEDIATE LEVEL SCRUTINY The Court sometimes applies a middle-tier scrutiny (a standard that tends to produce less predictable results than strict scrutiny or rational basis scrutiny) to gender and illegitimacy classifications. We will not go into detail on cases falling under this intermediate level of analysis, but know that the Court may sometimes resort to it especially in regard to gender and illegitimacy classifications. STRICT SCRUTINY Classifications involving suspect classifications such as race, are subject to closer scrutiny. A rationale for this closer scrutiny was suggested by the Court in a famous footnote in the 1938 case of Carolene Products v. United States , which


we discussed in Topic 11. Usually, strict scrutiny will result in invalidation of the challenged classification--but not always, as illustrated by Korematsu v. United States (a focus case), in which the Court upholds a military exclusion order directed at Japanese-Americans during World War II. Loving v Virginia, which we learned about in Topic 11, produced a more typical result when racial classifications are involved: a unanimous Supreme Court struck down Virginia's miscegenation law. An obvious question is what is a fundamental right deserving of strict scrutiny analysis? Two types of classifications cause the Court to depart from its usual rational basis scrutiny under the Equal Protection Clause: (1) when group burdened by the classification is "suspect" (e.g., a racial or ethnic minority, women, aliens) or (2) when the classification burdens what the Court determines to be a "fundamental right." The Court has been reluctant to add to what was a relatively short list of fundamental rights recognized beginning in the 1960s, and specifically rejected the suggestions, for example, that welfare payments or education be labeled the sort of fundamental rights that trigger heightened scrutiny. We shall summarize the status of certain rights as fundamental or not further on in this topic. Racial Discrimination – Public Facilities and Schools The issue of whether public facilities may be segregated based on race first arose in the context of transportation, not education. In the 1896 case of Plessy v Ferguson (focus case) the Supreme Court concluded that a Louisiana state law requiring white skinned and dark skinned persons to ride in separate railroad cars did not violate the Equal Protection Clause. In an opinion that tells quite a bit about prejudice in America a century ago, Justice Brown wrote that the law did not "stamp the colored race with a badge of inferiority" and that any such suggestion is "solely because the colored race chooses to place that construction on it." As is frequently the case a dissenting Supreme Court opinion is remembered more than the majority opinion. Such is the case with Plessy. In a famous and eloquent dissent in Plessy, Justice John Harlan argued, "Our Constitution is color blind, and neither knows nor tolerates classes among its citizens." Judicial activism is often precipitated by social activism in America. Beginning in the 1930s, an organization by the name of the National Association for the Advancement of Colored Persons (NAACP) began pressing for the constitutional rights of African-Americans. The NAACP is a social rights advocacy organization. Under the leadership of African-American attorney Charles Hamilton Houston—the NAACP began to organize against the "separate but equal" doctrine announced in Plessy. Houston chose to concentrate his efforts on segregation in public education, where he thought the adverse effects of the enforced racial separation could be most easily demonstrated. In 1938, Houston persuaded the Supreme Court that the state of Missouri's refusal to provide legal education for African-Americans within its own borders (Missouri sent its qualified African-American law students to neighboring states' schools, paying the tuition) denied African-Americans the equal protection of the laws. In subsequent victories in the Court, the NAACP gave meaning to the "equal" part


of separate but equal: states would have to ensure that separate educational programs were truly equal in terms of resources, reputation, and other measures. The NAACP’s greatest impact came in the landmark case of Brown v. Board of Education (1954) , a focus case, where it “recruited” a plaintiff (Oliver Brown, a parent) to challenge racially segregated schools in Kansas. "Racially segregated schools," the Court concluded, are "inherently unequal." The Court found support for its decision in studies that indicated that minority students learn better in racially mixed classrooms. The next year, in Brown II, the Court announced a decision outlining its plan for implementing racial desegregation in the schools. The Court took a cautious approach, remanding the cases to federal district courts with orders to integrate the schools "with all deliberate speed." As it turned out, desegregation was very slow despite the Supreme Court’s intervention, and a decade after the Brown decision, only a small percentage of African-American children in many areas of the U.S. attended schools with white children. Opposition to court-ordered segregation was intense in some places – particularly so in some of the southern American states. Governors stood in schoolhouse doors and some angry citizens terrorized African-Americans. In some places, integration was only achieved after a powerful show of force by national guard troops under the authority of the President. In one of the school districts involved in the 1954 school desegregation cases, Prince Edward, Virginia, county officials decided to close public schools altogether rather than integrate. Tuition benefits were provided to children to attend private schools, but the only private schools operating in the county would not permit African-Americans. white-only admission policies. In 1964, a very impatient and activist Supreme Court found Prince Edward's closing of the public schools to violate equal protection, and indicated that federal courts were empowered to order the opening of schools and to order the raising of taxes to pay for them, if necessary. "The time for mere deliberate speed has run out," the Court said. Korematsu v. United States, (1944) shows another side of strict scrutiny that deferred to government action because of war. This landmark case addressed the constitutionality of Executive Order 9066. This executive order, issued by President Roosevelt, led to the forcible internment of approximately 110,000 Japanese nationals and Japanese Americans living in the United States to housing facilities called "War Relocation Camps". The justification for this Executive Order came from Japan's attack on Pearl Harbor, Hawaii, that instigated America’s entry into World War II. Of those interned, 62 percent were United States citizens. The case was brought to the Court in 1944, while the U.S. and Japan were engaged in bloody battles on the Pacific Islands. The Court used a strict scrutiny standard to uphold the constitutionality of the exclusion orders in a 6-3 decision. The opinion, written by Supreme Court Justice Hugo Black, held that the need to protect against espionage outweighed the individual rights of Fred Korematsu, one of the internees, and the rights of Americans of Japanese descent.


Justice Murphy wrote a stinging minority opinion stating that the detention of Japanese "falls into the ugly abyss of racism," and comparing the rationale for the Japanese exclusion to that supporting "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy". He also compared the treatment of Japanese Americans, on the one hand, with persons of German and Italian ancestry (the U.S. also being at war with Germany and Italy), on the other, as evidence that race, rather than the emergency alone, led to the exclusion order. He wrote in the last paragraph of his opinion:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

The Korematsu decision has never been explicitly overturned. Indeed, the case is significant both for being the first instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a very few cases in which the Court held that the government met that standard! The case is a sad note about how even a democracy responds in time of war and how external threats may seem to justify extraordinary government action even under a strict scrutiny analysis. As a footnote to the Korematsu case the U.S. Government eventually acknowledged that it had erred in respect to Korematsu and other Japanese-Americans. In 1988, Congress passed and President Ronald Reagan signed legislation which apologized for the internment on behalf of the U.S. government. The legislation stated that government actions were based on "race prejudice, war hysteria, and a failure of political leadership". About $1.6 billion in reparations were later disbursed by the U.S. government to surviving internees and their heirs. The legislation may be found at: http://www.internmentarchives.com/showdoc.php?docid=00055&search_id=19269&pagenum=1 Voting Cases How the Supreme Court treats voting cases provides an interesting illustration about the dynamics of the Supreme Court It does so sometimes with great difficulty in reaching consensus on the appropriate analysis to be applied to a given situation. There can be no doubt that these types of cases can be extremely important to Americans. As recently as 2000 the Supreme Court was petitioned to review a matter of voting irregularities in the case of Bush v. Gore (2000) (focus case). Easily the most controversial decision involving voting and the Equal Protection Clause, in this case the Supreme Court decision ended the


recounting of votes in the State of Florida during the 2000 election with George Bush and Albert Gore as the principle candidates. Although the vote to stop the recount (which Bush wanted because he was ahead!) was 5 to 4, seven justices found an equal protection problem with Florida using different criteria to measure voter's intent in different counties for ballots that were marked, but not clearly marked. Two of those seven justices (Breyer and Souter) would have sent the matter back to the Supreme Court of Florida with instructions for the state government to develop a state-wide standard for determining the intent of voters--but five justices believed it was simply too late for that. Your other focus case on the right to vote is Crawford v. Marion Election Board (2008). That case concerns the reasonableness of a state government’s election regulations, which include very strict voter identification requirements. In Crawford the Court considered an appeal from a Seventh Circuit decision upholding a Indiana law that required voters to present either a driver's license, a passport, or a state-issued photo identification card. In a 2 to 1 panel decision, the Court of Appeals found the law did not violate the First Amendment or the Equal Protection Clause. The Court of Appeals wrote, "It is exceedingly difficult to maneuver in today's America without a photo id (try flying, or even entering a tall building, such as the courthouse in which we sit, without one). And, as a consequence, a vast majority of adults have such identification." A 2007 study showed that 13% of registered voters in Indiana lacked the required identification and that most of those tend to vote with the Democratic Party. Consequently the law was perceived by members of this party to disproportionately affect the poor, minorities, and the elderly, who usually vote for Democrats. The administration of President G.W. Bush took the side of Indiana, arguing in an amicus brief that the state has an interest in "deterring voter fraud." By a vote of 6 to 3, the Court rejected the challenge. Three justices (Stevens, Roberts, and Kennedy) allowed that an as-applied challenge to the law might have merit if a plaintiff could show that the law placed a special "burden" on his or her ability to vote, such that heightened scrutiny of the law was appropriate. Three concurring justices (Scalia, Thomas, and Alito) believed that the Indiana law should be subjected only to rational basis analysis, and that the state's interest in preventing voter fraud constituted a rational basis.

Three dissenting justices (Souter, Ginsburg, and Breyer) concluded, using a balancing test, that Indiana's interest in preventing voter fraud did not justify the significant burden the law placed on specific groups of voters.

The plaintiffs argued that any burden on the right to vote, however slight it is or however meagre the number of voters affected by it, cannot pass constitutional muster unless it is shown to serve a compelling state interest. The Court rejected the argument citing an earlier decision where it held that "(e)lection laws will invariably impose some burden upon individual voters. . . . (T)o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently."


Fundamental Rights Analysis We have looked at the application of strict scrutiny analysis to issues involving race and voting. Strict scrutiny is also used because of the nature of the interests which are burdened by the classification. When a classification significantly burdens the exercise of a fundamental personal right, the government usually must prove that the classification is necessary to a compelling governmental interest. Whether the right is a fundamental right becomes an issue that sometimes requires considerable reflection by the court. The fact that a classification has some effect on the exercise of a fundamental right does not necessarily mean that a more stringent standard of review than rationality will be applied. In some cases, where the law does not deter, penalize or otherwise significantly burden the exercise of the protected right, the Court has applied the traditional rational basis test. Court has increasingly avoided using strict scrutiny language in reviewing classification burdening fundamental rights. There are indications that the Court is moving away from a strict categorical or tiered approach to equal protection issues towards more of a sliding scale. With the “sliding scale” the more significant the burden on fundamental rights and interests, the greater the degree of scrutiny that will be used. This approach was advocated by Justice Thurgood Marshall in Plyler v Doe (1982), where he stated:

While I join the Court opinion, I do so without in any way retreating from my opinion in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (dissenting opinion). I continue to believe that an individual's interest in education is fundamental, and that this view is amply supported "by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values." Furthermore, I believe that the facts of these cases demonstrate the wisdom of rejecting a rigidified approach to equal protection analysis, and of employing an approach that allows for varying levels of scrutiny depending upon "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn....."

The following is a brief description of fundamental rights followed by other categories of rights and interests, which while not fundamental, may at times deserve higher scrutiny.

First Amendment Rights - When the government classification significantly burdens the exercise of a fundamental First Amendment right such as freedom of speech, freedom of belief and association, or the free exercise of religion, the Court will apply a stricter standard of review.

Right to Travel - While the Court has never clarified its constitutional

source, there is a fundamental right of interstate movement. When the government denies benefits because of interstate travel the classification burdens the fundamental right to travel and the strict scrutiny standard of


judicial review applies But if the classification does not deter, penalize, or otherwise significantly burden the protected right, the Court will not apply strict scrutiny.

The Right of Privacy - The right of privacy is a fundamental right.

Government classifications significantly burdening exercise of the right are subject to stricter scrutiny in determining if equal protection is violated. However, if the government does not penalize or otherwise significantly burden the right of privacy, the rationality test will be used. Eisenstadt v. Baird (1972).

Right to Marry - Marriage is one of the "basic civil rights of man." It is

deemed fundamental "to our very existence and survival." Loving v. Virginia (1967). Government classifications which significantly interfere with this right are subject to a rigorous standard of review. But, if the classification does not significantly interfere with the exercise of the fundamental right, only the rational basis test is used.

FUNDAMENTAL INTERESTS. The Court has also used a stricter standard of review to prevent discrimination in regard to fundamental interests such as voting and access to criminal justice. While the Court has not rejected this precedent, it has frequently rejected use of strict scrutiny based on the importance of the interest. Today, it is usually discrimination in the exercise of constitutional rights that triggers strict scrutiny.

Voting - There is no right to vote expressly recognized in the Constitution. However, the Court has indicated that voting is a fundamental interest, preservative of other rights and closely related to First Amendment rights. When government classifications discriminate in the ability to vote, or significantly burden the exercise of the franchise, the government must prove the classification is necessary to promote a compelling governmental interest. This principle applies whether a general or special purpose election is involved.

Access to Criminal Justice - Access to the courts for a criminal defendant

is of fundamental importance. Wealth differences should not determine the kind of criminal justice a person receives, at least when the initiative for the criminal proceeding comes from the government. This triggers a right for a person who cannot afford an attorney to be provided one by the government.

OTHER IMPORTANT INTERESTS. The fact that the classification significantly burdens critically important interests such as decent housing, medical care, welfare, or education will not itself trigger a stricter standard of review than rationality. Equal protection is satisfied so long as the classification is not arbitrary.

Education - While education is an important social and individual interest,

it has not yet been held to be a constitutional right. The rational basis test is, therefore, usually the appropriate standard of review. However, when


S T U D Y T A S K 2

education is totally denied to a discrete underclass of children while it is freely provided for other classes, the Court has applied a more searching standard of review-only a law furthering a "substantial" state goal will satisfy equal protection. We see an example of that in Plyler v. Doe (1982) where the court found that while illegal immigrant children are not a suspect class, they do constitute an underclass ("a permanent caste") in our society. While education is not a constitutional right, it has "a fundamental role in maintaining the fabric of our society."

Public Welfare - While economic assistance for unemployed persons

involves basic human needs, legislation creating public welfare programs is judged by the rational basis test unless a suspect classification or fundamental right is involved.

Please respond to the following questions concerning the Equal Protection Clause and explain why your answer is true or false.

o In most cases, a classification which is rationally related to a permissible government interest is constitutional.

o When a government enactment has the effect of discriminating on the basis of race, strict scrutiny applies.

o If a decision is motivated in part by racial discrimination, equal protection is violated.

o If a school district has been adjudged to be de jure segregated, it may not take action that has a segregative effect.

o Voluntary use of racial classifications by government is constitutional if the plan is rationally designed to overcome racial segregation.

o State classifications which have the effect of burdening women more severely than men must be substantially related to an important government interest.

o Classifications which discriminate against men in order to remedy past discrimination against women are constitutional if they are narrowly drawn to achieve the benign purpose.

o Illegitimacy is a suspect classification.

o When a classification significantly burdens the exercise of a fundamental constitutional right, the Court generally requires that government prove that the classification is necessary to a compelling government interest.


o While voting has not been held to be a fundamental constitutional right, the Court has applied strict scrutiny to restrictions on the franchise of voting.

Which of the following are elements of strict scrutiny equal protection review?

a. Burden of justification on the government.

b. The government interest must be compelling.

c. The classification must be necessary to achieve this objective.

d. No less burdensome alternatives must be available.

e. All of the above are elements of the strict scrutiny standard.

Which of the following classifying traits will not trigger a stricter standard of equal protection review?

a. Race.

b. National origin.

c. Gender.

d. Wealth.

e. Illegitimacy.

Which of the following has not been held to be a fundamental right requiring a more stringent standard of equal protection review?

a. Interstate travel.

b. Privacy.

c. Housing.

d. Marriage.

e. All of the above have been held to be fundamental rights.

P rov in g D isc r im ina t ion , S ta te Ac t ion Requ i r ement and Af f i rmat ive Ac t ion

State Action Requirement

The U.S. Constitution is a limitation on governmental conduct, not--with the exception of the Thirteenth Amendment's prohibition of slavery--a limitation on private conduct. In some cases, however, both the government and private actors are involved in the action that is alleged to violate constitutional rights, and it is necessary for a court to determine whether the government's role in the conduct is sufficient to cause make applicable the Constitution.


The Court has developed a number of theories upon which state action sufficient to trigger the protections of the Constitution might be found. The "public function theory," applied by the Court in the case of a part reserved for “whites only” (Evans v Newton), held that when certain traditional functions of government are turned over to private parties, the Constitution (in the case of Evans, the Equal Protection Clause) will apply. The "judicial enforcement theory" holds that judicial enforcement of private discrimination may constitute state action. Such state action was found to exist in the case of Shelley v Kraemer, where the state courts of Missouri had been used to evict an African-American family from a home they had bought from a “white” person in violation of a restrictive covenant entered into by white homeowner. Since almost all private discrimination is supported at some level through the judiciary, the Court’s decision in Shelley raises the question of just what the exact limits of its governing principle might be. A third basis for finding state action is that the action of the government is so entwined with the action of the private parties that the complained about action can be fairly attributed to the government. This was found to be the case in Burton v Wilmington, where the “Coffee Shop”--which served only “white” customers--had leased its space in a building owned by the City of Wilmington. The Court found that the presence of a "symbiotic relationship" between the city and the private discriminators supported its conclusion.

The most recent case on “state action”, Edmonson v Leesville Concrete (1991), one of your focus cases, represents a lenient application by the Supreme Court of the state action requirement. In Edmonson, the Court found that a private defence attorney's use of peremptory challenges to exclude black jurors in a civil case constituted state action. The Court found that the use of peremptory challenges was authorized by federal law and that there was judicial assistance of the discrimination in the excusing of the challenged juror. The Court also described the selection of jurors as a traditional state function.

Proving Discrimination When Statute is Neutral

When a statute or government policy classifies on the basis of race, the court will strictly scrutinize the classification, insisting that the racial classification is necessary to further a compelling state interest. However, when a statute is neutral on its face, but is alleged to have been applied in a racially discriminatory way, the analysis by the Court is more complex. In order to convince the court to apply strict scrutiny the person alleging discrimination must show that the government’s action was motivated by a discriminatory purpose. Statistical evidence of discrimination can be presented to the Court to show a discriminatory effect. For example, Yick Wo v. Hopkins (1886) involved a challenge by a Chinese-American, Yick Wo, to the San Francisco Board of Supervisors' decision to deny him a license to operate a wooden laundry. Yick Wo alleged discrimination, pointing out that 79 out of 80 non-Chinese who applied for laundry licenses received them, but only 1 out of 200 Chinese applicants were issued licenses. The Court accepted that Yick Wo's statistical evidence made out a prima facie case of a violation of the Constitution.


The case of Arlington Heights v. MHDC (1977) is a good guide for showing how the court will now apply a disparate impact test where a statute or regulation is not discriminatory on its face, but its affect is claimed to be discriminatory. The case involved a city regulation specifying what type of residences and businesses in a suburb of Chicago were allowable. It barred the construction of a multi-family housing facility (i.e. apartment complex) in the center of the neighbourhood. The neighbourhood was zoned for single family dwellings without variance since 1959. The Court set out a difficult standard for the plaintiffs to meet in proving discriminatory purpose of the city regulation. It held that to establish a prima facie case of an equal protection violation where the statute or regulation is not itself discriminatory, the person alleging discrimination must first show (through use of legislative history, a pattern of events, or departures from usual procedures) that discrimination was a motivating factor in the decision. Then, according to the Court, the burden shifts to the city to show that the same decision would have resulted even if the discriminatory motive was not present. In a footnote to the decision the Court alludes to a level of proximate cause level of proof whereby the complainant shows that the respondent intended to discriminate.

Proving Discrimination Under the Equal Protection Clause

1) The person alleging discrimination, in the absence of a statutory classification, must show that a discriminatory purpose was a MOTIVATING factor in the government's action or decision.

Note: A motivating factor need not be the SOLE factor in the decision. A motivating factor need not be the PRIMARY factor in the decision.

2) To show that a discriminatory purpose was a motivating factor, the following evidence could be offered:

i) Evidence that the action or decision has a disproportionate impact on the class--the more disproportionate the impact, the stronger the evidence.

ii) Statements by government decision-makers suggesting a discriminatory purpose: (a) --Statements at the time of decision (b) --Statements at the time of trial (c) A suspicious pattern of events leading up to the decision (d) Evidence that the decision was a departure from usual

procedures 3) If a discriminatory purpose is established, the government can defend

its decision by showing that the same decision would have been made even without the discriminatory purpose.


Affirmative Action

A lack of equal protection and chronic discrimination against a class of people, such as occurred in connection with slavery, can be corrected by the law. However the social inequity produced from centuries of discrimination leaves the previously unprotected class from advancing socially, economically and politically. Remedies to reverse this outcome have included a range of proactive programs that have been collectively known as affirmative action.

In his famous dissent in Plessy v Ferguson, Justice John Harlan wrote that the law was "color blind." Harlan's phrase resonated in perhaps an unintended way in modern times among critics of the government affirmative action programs that began to spring up in the 60s and 70s. These programs were designed to supplement civil rights legislation for the purpose of correcting generations of discriminatory laws that disadvantaged African-Americans. The programs were largely aimed at providing opportunities that would ultimately advance economic opportunities for African-Americans and other disadvantaged groups. One clear way to produce this outcome is to increase educational opportunities and another was through government contracting and employment guidelines.

In the 1970s President Nixon directed government agencies to provide potential contractors with information about the percentages of minorities in each local labor market. While not required, those contractors who proposed hiring certain numbers of minorities in their bids were given an advantage in the bidding process. These policies were extended to state and local governments and marked the beginning of the debate over the use of numerical goals and quotas.

The era of “affirmative action” raised the question of whether the government may use racial classifications when it does so to benefit, not discriminate against, racial minorities that have historically been the victims of discrimination? The Supreme Court first considered the question in respect to education in 1978, in the case of Bakke v. Regents, University of California. Bakke, a “white” applicant to the University’s Medical School, claimed that he was denied admission even though his test scores and grades were markedly better than racial minority applicants who were admitted through the school’s affirmative action. That program gave extra weight to criteria such as whether the applicant was a member of a disadvantaged group. The Court found that Bakke had been denied equal protection of the laws by the University’s use of a "two-track" admission system, one track for “whites” and one for “non-whites”. Even though Bakke won, many people came to view Bakke as a victory for proponents of affirmative action because of Justice Powell’s concurring opinion. Powell, providing the critical fifth vote for Bakke, said that increasing racial diversity in classrooms was a compelling state interest, and that a more narrowly tailored program - such as one that gave "pluses" to minority applicants rather than putting them into a separate admission track--would not violate the Constitution.

The 1970s could be regarded as a high point in affirmative action programs coming directly after a decade of civil rights legislation in the 1960s. In the 1980’s the political winds changed in America. Newly elected President Ronald


Reagan was opposed to programs such as affirmative action which favored minorities in jobs, education, and awarding government contracts. Conservative politicians like Reagan felt it amounted to reverse discrimination by granting minority groups special advantages that were denied the majority of citizens. The administration stopped requiring contactors doing business with the federal government to comply with affirmative action programs. Reagan’s Department of Justice supported a number of legal challenges to affirmative action and cut back efforts to enforce job discrimination and fair housing laws as well as legal challenges to court-ordered school integration.

In 2003 the Supreme Court looked at two cases against the University of Michigan, Gratz v. Bollinger which focused on the university’s undergraduate admissions, and Grutter v. Bollinger which focused on the university’s law school admissions. (Bollinger was the university’s president at the time.) The majority on the Court agreed that trying to attain a diverse student body was a compelling need, but felt the university’s undergraduate admissions system did more than tip the balance because it gave too many points for being an a minority. For this reason, the Court deemed it unconstitutional. The admissions process for the law school considered the “whole person” and didn’t seem to give an advantage to any one group, thus the Court upheld the school’s policy.

Affirmative action policies in government contracting have also slid in the direction of being the exception rather than the rule. In the City of Richmond v. J.A. Croson Company (1989) the Supreme Court considered affirmative action in the context of government "set-asides": programs that set aside a specified percentage of government contract dollars for minority business enterprises. Rejecting the argument that racial set-asides might be justified as a remedy for past societal discrimination, the Court held that such programs are only justified as a remedy for past discrimination by the government entity adopting the set-asides. In this case the city's plan violated both prongs of strict scrutiny, in that (1) the plan was not justified by a compelling governmental interest, since the record revealed no prior discrimination by the city itself in awarding contracts, and (2) the 30-percent set-aside was not narrowly tailored to accomplish a remedial purpose. Croson, and a subsequent case involving a federal set-aside program (Adarand Constructors v Pena (1995)) make clear that all racial classifications will be subject to the strict scrutiny test requiring demonstration of a compelling state interest and use of classifications narrowly tailored to further that interest.

The future of affirmative action would seem to be limited. In more recent cases the Supreme Court has struck down programs in several U.S. cities that used race of students as a factor in assigning students to schools so as to maintain a targeted level of racial diversity in public schools. Four of the justices have made it clear that they would like the Court to prohibit all attempts to “racially balance” schools concluding there is no compelling interest for such efforts. In 2009 the Court will consider another The middle ground at the court holds that attempts to achieve racial balance in public schools would be constitutional if they focused on achieving specific purposes thru narrow means.


S T U D Y T A S K 3

When is statistical evidence of discriminatory motive sufficient to shift the burden to government to demonstrate that its motive was in fact race-neutral? What if 20 of 200 Chinese applicants for laundry licenses had received them?

What types of evidence might be introduced to prove discriminatory purpose?

A private party can never be accused of violating the equal protection clause? Explain your answer.

What were the grounds for the court’s decision in Bakke v. Regents of University of California? Why would some commentators call it a victory for affirmative action?

Rev iew Quest ions

1. Persons receiving economic assistance (welfare) under a joint federal-state government financed program to aid the poor challenge the state of Maryland for its regulation that sets a maximum grant regulation on the total amount any one family unit may receive. The basis of the formula used does not take into account the fact that there is a disparity in family size among recipients of the program in the state. Does the Maryland program described above violate the Equal Protection Clause of the Fourteenth Amendment? Why or why not?

2. The state of Maryland enacts a law requiring the sterilization of all “welfare” recipients having a third illegitimate child. Statistics indicate that the state's welfare rolls have a disproportionate proportion of African-Americans. An African-American welfare recipient who has been ordered to be sterilized following the birth of her third illegitimate child has brought suit alleging the law violates the Equal Protection Clause. Discuss the issues that would be raised in determining if the sterilization law violates equal protection.

3. What are the policy arguments for applying constitutional limitations only to governmental racial discrimination, not private racial discrimination? If racial discrimination is bad, why not interpret the Constitution to ban all forms of it? Should a person be able to apply racially discriminatory criteria in choosing who is admitted into his house? To the persons attending his church?

4. Should there be affirmative action programs? Can these be justified in the United States on constitutional grounds? On humanitarian and social welfare grounds? Why might a college or university want to consider race as a factor in the admissions process ? Do you think it is appropriate for a college or university to do so? Why or why not?


5. The case of Ricci v. DeStefano (Docket N. 07-1428 and 08-328) is another equal protection case before the Supreme Court that will likely be decided in late 2009. It involves a petition from “white” fire-fighters alleging reverse discrimination when a test for promotions was thrown-out because all 27 of the African American fire fighters taking the test did not “pass”. The test was discarded because it was thought the test may have been biased against African Americans. This is another of many opportunities for the Supreme Court to review and clarify the equal protection clause. Why do you think there are so many cases dealing with the same clause? Why doesn’t the court make broad based rulings instead of limiting their rulings to the facts of a case? What factors may explain this phenomena?

Seminar Top ic

Topic: Equal Protection and Social Influences Is the equal protection clause uniquely American in its establishment? Is it uniquely American in its application? Do Pacific Island Countries reference a similar clause in their constitutions? How many Pacific Islands? What are the differences in wording or interpretation? If there is little or no litigation in Pacific Island nations about “equal protection under law” provisions or similar constitutional provisions – why is that the case? At the seminar this week we shall seek to answer these questions through a multilateral discussion about the nature of “equal protection” as an established constitutional right and how a range of factors – including history, social dynamics, demographics has shaped its application. As we have done with earlier comparative seminars – in answering these questions you will be asked to demonstrate your knowledge of U.S. law and also represent the status of law of a Pacific Island country of your choosing.


INDIVIDUAL RIGHTS AND LIBERTIES: FREEDOM OF SPEECH

13 T O P I C



1. Origins of Free Speech in the U.S.

2. The Basic Doctrine of Freedom of Expression

3. Freedom from Compelled Expression



Cultural and social foundation for freedom of speech in the U.S.

The basic doctrine of freedom of speech and the standard of review for regulation that is directed at content

Time, place and manner restrictions that are permissible in regards to regulating speech not based on content.

How and why the First Amendment is applied to prevent coerced speech.




Presc r i bed Read ing Abrams v. United States, 250 U.S. 616 (1919)

Brandenburg v. Ohio ,395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)

Madsen, et al. v. Women's Hlth. Center, Inc. et al., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)

West Virginia Bd. of Educ. vs. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)


State v. Lundquist, 262 Md. 534, 278 A.2d 263 (Md., 1971)

Maryland Statute on Pledge of Allegiance, MD Code Educ. 7-105 Display of flag; patriotic exercises


The Supreme Court Defines Marketplace of Idea, Journalism and Mass Communication Quarterly, W. Wat Hopkins http://terpconnect.umd.edu/~tpg/HopkinsWeekSeven.pdf

I n t roduc t ion - Or ig ins

The First Amendment to the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition for a redress of grievances.

The First Amendment is addressed specifically to the Congress, by which is meant the federal government generally. It was only in 1925 that the Supreme Court held that the states were bound by the guarantees of the First Amendment through the Due Process Clause of the Fourteenth Amendment. Generally the rights created in the First Amendment require state action in order to be justiciable though, as we shall see, the Supreme Court has broadened this doctrine to include some private activities and places. The First Amendment could be the subject of an entire course in an American Law School. We will focus on the clause that provides that Congress shall make no law “abridging the freedom of speech….’ The First Amendment guarantees but does not define freedom of speech. Many Americans think these guarantees provide absolute protection for speech. However this popular myth isn’t supported by constitutional interpretation. There are limits. A major work of modern First Amendment law in the United States is to articulate the points at which those limits are reached. This ongoing process is often contentious and difficult, and no one simple legal formula or philosophical principle has yet been discovered that is up to the task. Americans thus continue to debate in political forums and litigate in legal forums such issues as the power of society to censor offensive speech to protect children, the power to arrest speakers spreading violent or hateful propaganda for fear that it will foment crime or terrorism, the permissibility of banning speech that defeats protection of intellectual property, the propriety of curbing speech to shelter personal reputation and privacy, Internet communications, the right to restrict political contributions and expenditures to reduce the influence of money on the political process, and countless other free-speech conflicts.


A variety of doctrines have been produced by the Supreme Court which to define the meaning and extent of the protection accorded to freedom of speech and press under the First Amendment. As we shall see in this topic there is sometimes inconsistency between these doctrines. The Court has generally adhered to the principle that the vital functions served by the First Amendment require that it be given a "preferred position" in relation to other constitutional values. This requires close judicial scrutiny when First Amendment rights are burdened. Our analysis of the First Amendment will not be comprehensive, but by the end of this topic you will have a good understanding of the cultural and social foundation for freedom of speech in the U.S.; the basic doctrine of the freedom of speech; the parameters of when it is permissible for the state to regulate speech based on content; the regulation of speech based on time, place or manner; and the protection afforded against the compelling of speech by government. What you learn in this topic will hopefully give you a basis to think comparatively in terms of freedom of expression and related rights (such as freedoms of press and association) in the cultural and legal frameworks of the Pacific Islands and the United States.

The Ba s ic Doct r ine o f F re edom of Express ion First Amendment Rationale A theory supporting America’s belief in the Freedom of Expression is the “marketplace of ideas”. This metaphor may come from several sources, but perhaps in the “modern era” the writings of the English philosopher John Stuart Mills are attributed to what seems more economic philosophy than anything else. It describes a situation in which people speak and exchange ideas freely. The metaphor reflects, in a superficial manner, something of Mill's liberalism, his desire to minimize government's and society's interference in the life of the individual. It also reflects ideological beliefs of the 19th and 20th centuries that market behaviour represents the kind of freedom that people want, so speech and action must be free in the same manner. (for more information see alternative reading - The Supreme Court Defines Marketplace of Idea, Journalism and Mass Communication Quarterly, W. Wat Hopkins) The marketplace of ideas metaphor does not presume that truth will emerge from the free trade in ideas, at least not instantly. It presumes that free trade in ideas is the best test of truth, in much the same way that those who believe in laissez-faire economic theory argue that over the long haul free economic markets are superior to command-and-control economies. The American belief in the marketplace of ideas metaphor may stem from strong cultural sense that good will prevail over evil – or good ideas will prevail over bad ones - notwithstanding the reality that sometimes the bad idea can endure for quite a long time, e.g. slavery, prohibition on women voting.


The marketplace of ideas theory is based on the principle that the First Amendment forbids government from taking sides in the natural struggle of ideas. It says that if government does not limit or restrain the marketplace of ideas, full and free expression will push the best ideas toward triumph and lead to the defeat of less worthy ones. "(T)he best test of truth is the power of the thought to get itself accepted in the competition of the market" said Justice Holmes in his rather famous dissent in the case of Abrams v. United States (1919). That thinking was mirrored in another case in your reading, New York Times v. Sullivan (1964), which is a libel case. The court in New York Times v. Sullivan took the “marketplace of ideas” theory and declared that the meaning of the First Amendment is to encourage the vigorous robust discussion of public issues and public men. Such discussion is central to democratic government, stated the Court, in order that the people may actively participate in governing. Content Control v. Indirect Burdens When government in the United States undertakes to regulate expression because of the content of the speech, i.e., because of what is being said, American courts demand substantial justification. On the other hand, when government regulation only indirectly burdens freedom of expression, e.g., time, place and manner regulations, a lesser degree of judicial scrutiny will be used.

a) Categories of Speech - At times, the Supreme Court has held that certain categories of speech are not entitled to full First Amendment protection (e.g., commercial speech) or to any First Amendment protection (e.g., fighting words, obscenity). In such cases, laws based on the content of the expression are more likely to be upheld.

b) Strict Scrutiny - On other occasions, the Court has employed tests which impose a heavy burden of justification on government when it seeks to regulate speech content (e.g., clear and present danger test, compelling state interest test). In such cases, the ordinary presumption of constitutionality is not applicable.

c) Balancing - When a law only indirectly burdens freedom of speech, the Court is more likely to engage in an ad hoc balancing of the competing interest to determine if the law is reasonable. The interests of the government in regulating the activity are weighed against the burden on free speech interests. Increasingly, the availability of less burdensome alternatives to achieve the government interests are considered.

We will examine next the nature of the “Clear and Present Danger” test and how the Court seeks to balance those laws that do not directly burden freedom of speech.

The Clear and Present Danger Test: Content Control As you see in your reading Brandenburg v. Ohio (1969) the advocacy of the idea of illegal conduct, without more, is constitutionally protected. Only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions," may the speech be suppressed because of its content.


a) The Early Formulation

1) In its most influential formulation, the clear and present danger doctrine was defined as follows: A restraint on the rights to free speech and assembly can be held permissible only if there actually exists an imminent and probable danger and an apprehended evil so substantial as to justify the governmental restraint.

2) The clear and present danger test provides that where the threatened danger is serious and imminent, the state, in such extraordinary circumstances, will be permitted to do what in normal circumstances it is not permitted to do, i.e., restrain expression because of its content. The reason such restraint is permitted is because it is concluded there is insufficient time to permit full and free discussion to achieve its normally curative function. As Mr. Justice Brandeis expressed it: "Only an emergency can justify suppression."

3) Prior to the 20th century there were few cases measuring the question of regulating speech and those that did appear almost always were decided concisely in favour of the government. A surge of emigration to the United States in the early part of the 20th century created a more diverse society from a range of European nations, cultures and social-economic status. The entry of the United States in 1917 into World War I stimulates heated debate with some clearly not non-supportive of the U.S. role. The rise of Socialism and Communism in popular politics in the early 20th century also contributed to the strength of dialogue that made governments feel insecure. Freely expressed ideas were sometimes perceived as a threat to the social order.

4) In Abrams v United States we see the beginnings of a movement to a more speech-protective test. Although the Court majority votes to uphold the Espionage Act convictions of Jacob Abrams and other anarchists who distributed leaflets attacking the U. S.'s decision to send troops to Europe to defend Czarist Russia against the Bolsheviks, Justices Holmes and Brandeis publish a powerful dissenting opinion. Holmes argued that the "silly leaflet" of "poor and puny anonymities" posed no real danger to U. S. efforts, and thus failed to present a "clear and present danger" that the government might be justified in trying to suppress. Writing that "the best test of truth is competition in the market" of ideas, Holmes urged his brethren to take their responsibities to enforce the First Amendment more seriously.

5) A legislative judgment that the danger is too immediate and too serious to permit the normal reliance on free discussion in not conclusive even if it is reasonable. The Court must conclude that a particular restraint is justified because of the danger. Whitney v. California (1927) (concurring opinion of Mr. Justice Brandeis).

6) The Supreme Court's ruling in New York Times Co. v. Sullivan revolutionized libel law in the United States by deciding that public officials could not sue successfully for libel simply by proving that published information is false. The case arose from a full-page advertisement placed in the New York Times by the Southern Christian Leadership Conference, a civil rights advocate, to raise money for the legal defense of civil rights leader Martin Luther King, Jr., who had been arrested in Alabama in 1960. L.B. Sullivan, a city


commissioner in Montgomery, Alabama, who was responsible for the police department, claimed that the ad libeled him by falsely describing the actions of the city police force. Sullivan sued the four clergymen who placed the ad and the New York Times, which had not checked the accuracy of the ad.The advertisement did contain several inaccuracies, and a jury awarded Sullivan $500,000. The Times and the civil rights leaders appealed that decision to the Supreme Court, and the Court ruled unanimously in their favor. The Court decided that libel laws cannot be used "to impose sanctions upon expression critical of the official conduct of public officials," and that requiring critics to guarantee the accuracy of their remarks would lead to self-censorship. The Court found no evidence that the Times or the clergymen had malicious intent in publishing the ad.

b) The Modern Test: Incitement and Danger

When does the First Amendment allow the government to punish individuals for expression that may lead to unlawful conduct? The modern formulation of the clear and present danger test expressed in Bradenburg v. Ohio focuses on both the nature of the speech and the danger it presents. First, only incitement of unlawful conduct, not advocacy of abstract doctrine, can be punished. Second, only incitement to "imminent lawless action" which is "likely to incite or produce such actions," may be reached. The incitement test did not become part of the Supreme Court's First Amendment jurisprudence until 1969 when Brandenburg was decided. In reversing the conviction of a Ku Klux Klan leader (an organization with racist views) who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race," the Court held that the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action. Thus, Brandenburg brings together the incitement test and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s.

The Balancing Test: Indirect Burdens Laws which are neutral as to the content of the expression and are directed at conduct are constitutional if they are reasonable even though speech is indirectly burdened. The reasonableness of the burden is determined by a balancing test.

a. Interests Balanced In balancing cases, the Court weighs the governmental interest (e.g., in the national security area, the interest in self preservation) against the particular constitutional right alleged to be infringed, e.g., to refuse to disclose political association. Some justices have urged that balancing as it is actually used works to the disadvantage of First Amendment rights


because what should be balanced is the government interest against the societal interest in First Amendment values. b. Speech-Conduct The Court has indicated that when speech is joined with conduct (i.e., "speech plus"), it is not as entitled to First Amendment protection as "pure speech". Reasonable laws, directed at the conduct element, are constitutional even though speech is incidentally burdened. The focus of the regulation must be on the associated conduct and not on the idea being expressed-government must remain neutral regarding the content of the expression. Example: The Secretary of State has the power to revoke a passport when the holder's activities are causing or likely to cause serious damage to national security or foreign policy. To the extent that the revocation acted to inhibit movement, it was an inhibition of action rather than of speech. Haig v. Agee (1981).

Valid content-neutral time, place or manner regulations Government regulation of speech on the basis of content because it might be inflammatory or subversive is subject to strict judicial scrutiny (usually a requirement that the restriction serve a compelling state interest and that there is no way of serving the interest that is less speech-restrictive). Content-neutral restrictions on speech are subject to only intermediate scrutiny. In general, the government must show that the law serves an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication. There is a four part test for time, place and manner regulations of speech. Four-Part Test for Time, Place & Manner Regulations - Can you think of some of the possible content-neutral reasons for restricting speech. There are, of course, many content-neutral justifications for restricting speech in the U.S. Should someone be able to falsely scream fire in a crowded room? Is it permissible to express oneself at someone’s private residence or commercial establishment? Can government regulate such speech? The test for constitutional validity of time, place and manner regulations of speech in the public forum are:

1) Does the regulation serve an important governmental interest? 2) Is the government interest served by the regulation unrelated to the

suppression of a particular message? 3) Is the regulation narrowly tailored to serve the government's interest? 4) Does the regulation leave open ample alternative means for

communicating messages? Content-neutral justifications for regulating speech are still controversial. A case in point is the public debate over abortion in the United States.


S T U D Y T A S K 1

In Madsen v Women's Health Center looks at a series of content-neutral speech restrictions included in an injunction directed at demonstrators who congregated at a Florida abortion clinic. The Court upheld some of the restrictions (e.g., a 36-foot buffer zone to allow access to the clinic driveway and a ban on noisy demonstrations during clinic hours), but struck down others (a ban on demonstrations visible from the clinic and a ban on approaching clinic patients). The case provokes a lively debate over whether the Court is modifying First Amendment law to suit its abortion rights jurisprudence. In this case the Court used a modified standard of review because this was a matter of speech being restricted by judicial injunction rather than statutory regulation.


The First Amendment to the Constitution of the United States declares that "Congress shall make no law ... abridging the freedom of speech." What does and should this mean? Justice Oliver Wendell Holmes, in his famous Abrams v. United States (1919) dissenting opinion, began what may be the single most poetic paragraph ever written by a Supreme Court justice on the meaning of freedom of speech. Here is that opening line: "Persecution for the expression of opinions seems to me perfectly logical." What do you think Holmes meant my this and why would he say it?

The proposed test of Holmes and Brandeis in their Abrams dissent would require that the government khow that the speech in question pose some real and immediate threat to U. S. war efforts--the fact that the speech might have a bad tendency is not enough. Does the Holmes test offer more First Amendment protection for ineffective speech by "anonymities" than effective speech by "somebodies"? If so, is this a good result?

What was the primary issue in New York Times v. Sullivan? How was the marketplace of ideas theory instrumental in helping the court reach its decision? According to the Court, what must a complainant prove to be successful in a libel action against reports or news editors?

Would the Kle Klux Klan speaker in Brandenburg be protected by the First Amendment if he had said "NOW is the time to take revengeance" instead of "It's possible that revengeance may have to be taken"?

What if the KKK speaker had said "If the Supreme Court decides case XYZ against us, then we must assassinate all the justices that voted the wrong way"?

To be the basis of a permissible prosecution under the First Amendment is it only necessary that there be an incitement to imminent lawless action, regardless of how minor may be the


infraction involved? Can, for example, a demonstrator be prosecuted for urging people to "Go trespass" or "Jaywalk now!"? What do you think?

What are the standards that must be met for a valid content-neutral regulation of speech in public areas?

Describe the standard used by the Court in Madsen in deciding the validity of each of the components of the injunction? Why did the Court not agree with the petitioner that the injunction really addressed the content or viewpoint of the speech being regulated? Why did the majority decide that the state court injunction was not a regulation of content even though it was directed at anti-abortion demonstrators? Is there anyway that the Court could apply a strict standard as argued by Scalia and still protect those who work or wish to utilize the service of the health center (to exercise their constitutionally protected right to obtain an abortion)?

F reedom f rom Coerced Speech

Freedom of speech is firmly imbedded in the American psyche. It is not absolute, but even the constraints of judicial doctrine provide a broad array of content that is protected. But what about the inverse of freedom of speech? Does the First Amendment allow the government to compel individuals to make expressive statements?

The most compelling example of “freedom from speech” relates to the Pledge of Allegiance. The Pledge of Allegiance was written at the turn of the 20th century by a Baptist minister to celebrate an American holiday. He thought that school children could recite the pledge during flag raisings and other patriotic occasions as part of their civic education. It was adopted in 1942 by the U.S. Congress as the official pledge of the United States. Over the years additional words were added to the pledge so that by the 1950’s it read:

I pledge allegiance to the flag of the United States of America and to the republic for which it stands: one nation under God, indivisible, with liberty and justice for all.

A pledge of allegiance associated with ceremonies honouring a nation’s flag is not unique to America. In the Philippines the pledge is called Panunumpa ng Katapatan sa Watawat ng Pilipinas and was created by Executive Order 343 in 1996. In Papua New Guinea the National Identity Act 1971 (Part IIA) requires that children recite a pledge of allegiance “in each primary school and high school before the commencement of classes in each day.”

The adopting of the Pledge of Allegiance by the federal government didn’t dictate when the Pledge was to be recited. It became controversial for some Americans when many state governments created statutes requiring students to recite the pledge of allegiance at daily commencement ceremonies in schools.


In 1935, a leader of the Jehovah's Witnesses church in America, Joseph Rutherford, declared that saluting the American flag violated the Biblical command against worshiping graven images, and urged his followers not to do so. Rutherford's call would lead to two U. S. Supreme Court decisions considering whether states could demand flag salutes from public school children. In 1941, in the midst of World War II, the Court announced its 8-1 opinion in Minersville School District v. Gobitis, upholding a Pennsylvania school district's decision to expel three Jehovah's Witnesses who refused to salute the flag. The Court's decision was criticized by civil libertarians and over 170 newspaper editorialists.

Then, just two years later in West Virginia v. Barnette, the Court reversed itself and ruled 6-3 that West Virginia's decision to expel students who refused to salute the flag violated the First Amendment. (The startlingly quick overruling of Gobitis came as the result of three justices--Douglas, Black, and Murphy-- switching their votes and two new justices, Robert Jackson and Wiley Rutledge, joining the Court.) Justice Jackson's opinion for the Court saw inconsistency in an interpretation of the First Amendment that "guards the individual's right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind."

In 1977 the Court in Wooley v. Maynard (1977), considered another compelled speech claim, this one brought by a New Hampshire couple who had three times been prosecuted for covering up the state motto "Live Free or Die" on their New Hampshire license plate. The Maynards, also Jehovah's Witnesses, objected on religious grounds to the ideological message conveyed on the state license plates. Writing for the Court, Chief Justice Burger enjoined enforcement against the Maynards of New Hampshire's law prohibiting the obscuring or defacing of license plates. The law, the Court said, compelled individuals to be "couriers for ideological messages" and "mobile billboards."

Now let’s go back to the Pledge of Allegiance and see how an issue of coerced speech actually arises at the state level and is handled by a state Court. The state of Maryland has had a “pledge of allegiance” statute on the books since 1957. In its original form the statute (Chapter 737 of the Laws of Maryland 1970) became the subject of the action by a teacher who was personally opposed to forcing his students in involuntary patriotic exercises. The Court of Appeals in State of Maryland v. Lundquist (1971) affirmed the lower court degree holding that Lundquist, the teacher, could not be required to lead his students in a flag salut and pledge (or punished for not doing so), as required by Chapter 737. The declaration of Chapter 737 as unconstitutional led to a revision of the statute by the General Assembly of Maryland. The statute, as revised in 1978, takes away the punishment clause and provide for non-participation by teachers and students. See Maryland Annotated Code, Chapter 22, Sec. 2 (1978). Even though the statute is clear there are still instances of schools not appropriately applying the law to students and teachers, leading to their embarrassment and in some cases punishment.


S T U D Y T A S K 2

What was the constitutional basis according to the court in Maryland v. Lundquist for declaring unconstitutional the Maryland statute on the Pledge of Allegiance in schools? Why do you think the dissenting justices had a hard time acknowledging the majority opinion?

Would it be constitutional for a school to require a student objecting to the Pledge of Allegiance to leave the room while others recited the Pledge?

Considering the reasoning of the Supreme Court in West Virginia v. Barnette, do you feel a rule requiring government employees to take a loyalty oath to the constitution would withstand constitutional muster in the U.S? Would it depend on what it stated?

Rev iew Quest ions

1. What are the philosophical concepts that support First Amendment jurisprudence in the U.S.?

2. Can it be argued that the American system values freedom of speech more than the right to be protected from hateful speech?

3. How significant would you rate the U.S. government's interest in forcing school children to salute the flag? Why does the United States – which prides itself on Freedom of Speech have a pledge of allegiance? Why is it the state governments that have passed legislation concerning the pledge of allegiance in schools?

Seminar Top ic Topic: Differing Concepts of Freedom of Speech in America and Pacific Island Countries? Read the following two statements. Write a memorandum addressing the points below. The memorandum will also serve as your guide to discussion about the topics at this week’s seminar. 1) Which of the two statements most closely reflects the state of popular

opinion about “freedom of speech” in your home country? Why? 2) Does the body of national law in your country address freedom of

speech similar to the United States model? Compare and contrast as necessary to fully support your conclusions

3) Would it be true to conclude that freedom of speech is more relevant in a formal political system? Conversely does it have little real value in a traditionally governed community? Please justify


Western legal thought, at least as popularized in general literature, assumes the universality of certain principles contained in the “four freedoms” adopted by the membership of international organizations, treaties, and even most constitutions. The freedoms of association, of assembly, of speech, and of religion are taken for granted as applicable, if not always applied, in countries around the world. They form the basis of human rights campaigns, the justification for intervention (at least philosophically) in the affairs of nations, and to many, they represent the foundation of the participatory democratic form of government so idealized, even in its absence and in its shortcomings. Yet social structures, traditions, and even laws that frame human behavior in many parts of the world, some apparently benevolent and others not, contradict some of the assumptions beneath the “four freedoms.” In particular, in those societies that place the highest value on communal rather than individual rights, the application of the “universal” freedoms has been problematic at best. The needs of the individual, in such social environments, often may be perceived as contradicting, even endangering, the health of the community, and particularly the community’s cohesion, the very life blood of the society. In such structures, the web of mutual obligations and interdependence constitutes the fabric of human life. The highest value is the maintenance of that web and the linkages that comprise it.

“The Rule of Law, Custom, and Civil Society in the South Pacific, An Overview”, Stephan Klingelhofer and David Robinson, International Center for Not for Profit Law, Page 1, (2001)

An example of the internal contradictions is provided by current debates about free speech in the Pacific. Some groups in the PICs claim that free speech (protected in all PIC constitutions) undermine indigenous rights, the chiefly or royal system and group cohesion because it creates disunity and suspicion. It is disrespectful to question the leadership or state behaviour, especially when leadership rests in the hands of traditional chiefs, elders or royals and because it creates chaos and rifts in the community. Such governments may use the cultural relativist argument to suppress press freedom to protect themselves against public scrutiny. UN Secretary General Kofi Annan pointed out in relation to this: “There are however, those who still question the value of free speech to their societies; those who argue that it threatens stability and endangers progress: those who still consider free speech an imposition from abroad and not the indigenous expression of every people’s demand for freedom. This argument is never made by the people, but by governments, never by the powerless but by the powerful; never by the voiceless, but by those whose voices are the only ones allowed to be heard.”

PACIFIC CULTURE AND HUMAN RIGHTS: WHY PACIFIC ISLAND COUNTRIES SHOULD RATIFY INTERNATIONAL HUMAN RIGHTS TREATIES, P Imrana Jalal, Human Rights Advisor, Pacific Regional Rights, Resource Team (RRRT/UNDP), April 2006 (page 12)

Part 4 – LITIGATION IN A FEDERAL SYSTEM

JURISDICTION OF FEDERAL AND STATE COURTS

14 T O P I C


Topic 14 concept map

This map represents the core concepts that we’ll be covering in this unit, and the relationships between them.



1. Subject–Matter Jurisdiction

a. Constitutional and Statutory Bases of Federal Subject–Matter Jurisdiction

i. State Courts

ii. Federal Courts

• U.S. Constitution, Article III

• Title 28, United States Code

iii. Rationale for Subject Matter Jurisdiction

b. Subject–Matter Jurisdiction of Federal Trial Courts: Federal Questions (Sec. 1331)

i. Louisville & Nashville Railroad v. Mottley

ii. Rationale for Federal Question Jurisdiction

c. Subject–Matter Jurisdiction of Federal Trial Courts: Diversity of Citizenship (Sec. 1332)

i. Baker v. Keck

ii. Diversity–of–Citizenship Jurisdiction

d. Concurrent State–Court Jurisdiction and the Role of the U.S. Supreme Court

i. Yellow Freight System v. Donnelly

ii. State Court Jurisdiction Over Federal and State Law

2. ‘‘Personal’’ Jurisdiction of State and Federal Courts

a. World–Wide Volkswagen Corp. v. Woodson

b. Physical Presence and ‘‘Minimum Contacts’’

3. Jurisdictional Issues in Transnational Litigation

a. Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County

b. Bank of Hawaii v. Ataji L. Balos, et. Al., 701 F.Supp. 744, United States District Court, Hawaii (1988)




The jurisdictional and concurrent roles of Federal and state courts in the United States

Thresholds for subject matter and diversity jurisdiction of Federal courts.

Minimal contacts necessary for personal jurisdiction by a state or Federal court.

Federal rules of procedure addressing subject matter and diversity jurisdiction.

How influence of jurisdictional issues on international litigation.




Presc r i bed Read ing 28 U.S.C. Sections 1330-1369 and 28 U.S.C. Sections 1441-1452.

Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)

Baker v. Keck, 13 F.Supp. 486 (E.D. Ill., 1936)

Yellow Freight System, Inc v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990)

State and Federal Court Jurisdiction, Chart from Understanding the Federal Court System

World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)

The Foreign Sovereign Immunities Act, which may be found at http://www.law.cornell.edu/uscode/html/uscode28/usc_sup_01_28_10_IV_20_97.html


Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County

Bank of Hawaii v. Ataji L. Balos, et. Al., 701 F.Supp. 744, United States District Court, Hawaii (1988)

Al te rna t i ve Read ing

The Federal Rules of Civil Procedure (FRCP) . You may find the Federal Rules at http://www.law.cornell.edu/rules/frcp/

The Alien Tort Statute – What will Sosa Bring, See http://www.rkmc.com/The-Alien-Tort-Statute-What-will-Sosa-Bring.htm (Journal Article)

Patunvanu v Government of the Republic of Vanuatu and Federal Reserve Bank of New York, Civil Appeal Case 10 of 2005 (18 November 2005)

I n t roduc t ion

As a lawyer working in a Pacific Islands nation you may very well find yourself advising a client on issues ultimately involving transnational litigation. It is particularly challenging to understand litigation in U.S. courts because of complex relationships and rules of courts in a federated system. The purpose of this topic is to orientate you to jurisdictional issues that are basic to understanding the roles of courts in the United States’ federal system and that are fundamental as well in transnational litigation involving U.S. courts. We will explore the role of the courts, examine subject and personal jurisdiction doctrines, examine statutes regulating jurisdiction and court procedures, and explore cases that elaborate on jurisdictional issues in practice. This week’s seminar topic will allow you to demonstrate your knowledge of transnational jurisdictional matter and related issues in respect to the U.S. court system. Sub jec t -Mat te r Jur isd ic t ion CONSTITUTIONAL AND STATUTORY BASES OF FEDERAL SUBJECT–MATTER JURISDICTION Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court has the authority to only hear bankruptcy cases. Subject-matter jurisdiction is distinguished from personal jurisdiction, which is the power of a court to render a judgment against a particular defendant, and territorial jurisdiction, which is the power of the court to render a judgment


concerning events that have occurred within a well-defined territory. Unlike personal or territorial jurisdiction, a lack of subject-matter jurisdiction cannot be waived. A judgment from a court that did not have subject-matter jurisdiction is null and void. To decide a case, a court must have a combination of subject (subjectam) and either personal (personam) or territorial (locum) jurisdiction. Subject-matter jurisdiction, personal or territorial jurisdiction, and adequate notice are the three most fundamental constitutional requirements for a valid judgment. State courts - State court systems in the United States are divided into divisions such as criminal, civil law, family, and probate. A court within any one of those divisions would lack subject-matter jurisdiction to hear a case regarding matters assigned to another division. Most state court systems, however, include a superior court that has "general" jurisdiction; that is, it is competent to hear any case over which no other tribunal has exclusive jurisdiction. Because the United States federal courts have exclusive jurisdiction over a very small percentage of cases (e.g., copyright and patent disputes), state courts have the authority to hear the vast majority of cases. U.S. federal courts - Subject-matter jurisdiction is significantly more limited in United States federal courts. The maximal constitutional bounds of federal courts' subject-matter jurisdiction are defined by Article III, Section 2 of the U.S. Constitution. Remember back to Topic 5 and our early exploration in this course of Article III. Congress is given authority under Article III to define the jurisdiction of the Federal Courts. The actual subject matter of Federal courts derives from Congressional enabling statutes, namely 28 U.S.C. Sections 1330-1369 and 28 U.S.C. Sections 1441-1452 (see your readings!). The United States Congress has not extended federal courts' subject-matter jurisdiction to its constitutional limits. For example, the amount-in-controversy requirement for diversity jurisdiction is based on 28 U.S.C. Section 1332, not a constitutional restriction. Moreover, Congress could constitutionally overrule the complete-diversity rule in diversity cases. By far the most important two categories of federal subject-matter jurisdiction are federal question jurisdiction and diversity jurisdiction. The enabling statute for federal question jurisdiction, 28 U.S.C. Sec. 1331, provides that the district courts have subject-matter jurisdiction in all civil actions arising under the Constitution, laws, or treaties of the United States. As mentioned before, this jurisdiction is ordinarily not exclusive; states too can hear claims based on federal law. The enabling statute for diversity jurisdiction, 28 U.S.C. Sec. 1332, grants the district courts jurisdiction in an action that meets two basic conditions:

Complete diversity requirement. No defendant is a citizen of the same state as any plaintiff.

Amount in controversy requirement. The matter in controversy exceeds $75,000.


Federal courts also have removal jurisdiction, which is the authority to try cases removed by defendants from state courts. The contours of removal jurisdiction are almost identical to those of original jurisdiction. The Federal Rules of Civil Procedure (FRCP) provide the rules for litigating civil matters in Federal courts. You may find the Federal Rules at http://www.law.cornell.edu/rules/frcp/ According to Rule 12(h)(3) of the Rules, a federal court must dismiss a case for lack of subject-matter jurisdiction upon motion of a party or sua sponte, upon its own initiative. SUBJECT–MATTER JURISDICTION OF FEDERAL TRIAL COURTS: FEDERAL QUESTIONS (28 USC, SEC. 1331) Congress has conferred upon federal courts jurisdiction to decide federal questions i.e., cases or controversies arising under the Constitution and laws of the United States (28 U.S.C. Sec. 1331) and cases or controversies between citizens of different states (diversity jurisdiction). (28 U.S.C. Sec. 1332.) There is a presumption against federal jurisdiction. The existence of subject matter jurisdiction generally must be demonstrated at the outset by the party seeking to invoke it (FRCP 8). It cannot be conferred by consent of the parties, nor can its absence be waived. The rule that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action so demonstrates is called the "well pleaded complaint rule". The rule is demonstrated in one of your focus case, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). The rule described in Motley is that an action arises under the Constitution and laws of the United States only if the original statement of the plaintiff’s cause of action shows that it is based on the Constitution or federal statutes. A federal court can’t have jurisdiction just because the defendant might use a federal law or the Constitution to defend himself. Also notable about Motley is that the Court of Appeals raised the issue of “federal question” jurisdiction sua sponte exercising federal court authority to decided jurisdictional issues at any phase of a legal action. Note the aftermath of the Mottley case. After the Supreme Court’s decision in 1908, the Mottley’s re-filed their complaint in state court based on state contract law, and the railroad responded with federal law defences just as anticipated by the Mottley’s in their original law suit. The state courts’ ruled in favour of the Mottley’s, rejecting the federal issues raised by the defendant, and the railroad then sought review of these federal issues in the U.S. Supreme Court (see Louisville and Nashville Railroad v. Mottley (II), 219 U.S. 467 (1911). The Court granted certiorari and held that it could hear the appeal because the case now raised a federal question. Mottley II demonstrated that the Supreme Court, and only the Supreme Court, can intervene at any time to hear a federal question even if a federal question is not in “a well-pleaded complaint.” Thus the Well Pleaded Complaint Rule applies not to Article III (original jurisdiction of the U.S. Supreme Court), but does apply to 28 U.S.C. Sec. 1331 (jurisdiction afforded to lower federal courts).


SUBJECT–MATTER JURISDICTION OF FEDERAL TRIAL COURTS: DIVERSITY OF CITIZENSHIP (SEC. 1332) In diversity cases the subject matter jurisdiction of the federal courts is defined by who the parties to the lawsuit are rather than the subject matter of the underlying dispute. Federal subject matter jurisdiction exists in cases where the opposing parties are citizens of different states and the amount in controversy exceeds $75,000 exclusive of interests and costs. (28 U.S.C. Sec. 1332) "Citizenship" is synonymous with "domicile" and "domicile" means physical presence in the state coupled with the intent to reside there indefinitely. There must be complete diversity of citizenship between the parties on each side, i.e., all plaintiffs must be citizens of different states than all defendants. The "rule of complete diversity" holds that there is no diversity jurisdiction when any party on one side of the dispute is a citizen of the same state as any party on the other side. If any plaintiff shares a common citizenship with any defendant, then diversity is destroyed and along with it federal jurisdiction. This rule was stated in the early 19th century in the case of Strawbridge v. Curtis, 2 L.Ed. 435 (1806). Citizenship of Corporations - For diversity purposes, corporations have dual citizenship. The state of incorporation and where they have their chief place of business. For example, if X Corporation, incorporated in the State of Delaware and with its principal place of business in California is a party to law suit, diversity is lacking if any adverse party is a citizen of either Delaware or of California. It is generally accepted that a corporation can have only one principal place of business for purposes of diversity jurisdiction. Amount in Controversy - Diversity jurisdiction can be invoked only if the amount in controversy exceeds the sum of US $75,000 exclusive of interest and costs. (See 28 U.S.C. Sec. 1332) The words are interpreted literally. If the matter in controversy is precisely $75,000 or less, there is no jurisdiction. Note, there is no amount in controversy requirement for federal question cases. In determining whether the amount in controversy requirement has been met, the court looks to the sum demanded by the plaintiff in his complaint. Aggregation of Claims - If a single plaintiff has two entirely unrelated claims against a single defendant, each for $40,000, he may sue in federal court since the aggregate of the claims exceeds $75,000. If two plaintiffs each have a $40,000 claim against a single defendant, they may not aggregate their claims, and may not sue in federal court, no matter how similar the claims may be. i.e., if a single plaintiff is suing a single defendant, FRCP 18 permits the plaintiff to join as many claims as he may have against the defendant regardless of their nature, and the value of all the claims is added together in determining whether the jurisdictional amount is met. Multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount requirement. What is Domicile - What is required to acquire a domicile for diversity jurisdiction purposes? As you see from your reading in the case of Baker v. Keck the rule is very much fact-determinative for assigning domicile for purposes of diversity of citizenship for persons. To acquire a domicile a person must establish a dwelling place with the intention of making it a home. That intention


is not necessarily determined from the statements of declarations of the party but may be inferred from the surrounding circumstances. CONCURRENT STATE–COURT JURISDICTION AND THE ROLE OF THE U.S. SUPREME COURT The Constitution established a system of government in which sovereignty was not unequivocally lodged in one level of government. In Chief Justice Marshall’s words, in the case of Gibbons v. Ogden (1824), “our complex system presents the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union. . . .” Naturally, in such a system, “contests respecting power must arise”, The underlying federal nature of the U.S. Court system means that disputes respecting authority may frequently arise because of dual structures of courts exercising concurrent jurisdiction in certain types of cases. One set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed by constitutional law, statutes and by practices established by the courts themselves to avoid disharmony. Unless there is a congressional statute to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between States, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction. Indeed, the presumption is that states courts enjoy concurrent jurisdiction, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to limit the state courts. Even within the category of admiralty jurisdiction the state courts have concurrent jurisdiction over cases that may occur when litigation is in the form of a suit at common law. The case of Yellow Freight System v. Donnelly, Certiorari to the U.S. Court of Appeals for the 7th Circuit No. 89-431 (1990) confirmed that even in cases where Congress has created a federal statutory protection against discrimination there is concurrent jurisdiction. The fact that Title VII contains no language that expressly confines jurisdiction to federal courts or ousts state courts of their jurisdiction is strong evidence that Congress did not intend to divest state courts of concurrent jurisdiction. Although most legislators, judges, and administrators who have been involved in the enactment and interpretation of Title VII may have expected that such litigation would be processed exclusively in federal courts, such anticipation cannot overcome the presumption, that was affirmed in Tafflin v. Levitt, 493 U.S. 455, that state courts have the inherent authority, and are competent, to adjudicate federal claims. In the event of a state court action preceding the initiation of an action on the same matter in Federal court, the Federal court will normally abstain on its own motion.


See Chart from Understanding the Federal Court System for description of categories of cases typically heard by state and federal courts, and matters of concurrent jurisdiction. THE AUTONOMY OF STATE COURTS State courts have considerable autonomy by virtue of their subject matter jurisdiction over a broad array of civil and criminal matters, and conversely the limited jurisdiction of Federal courts. Conflict can arise through two processes – Supreme Court review of state court decisions by the Supreme Court and restraint of state courts by the federal courts on federal questions. Review of state court decisions by the Supreme Court is intended to protect federal interests and promote uniformity of laws and decision relating to federal questions. The second broader category arises from the fact that state interests and actions which may be adjudicated by state courts, may also be subject to restrain by federal courts. This has become a more pronounced area of tension in the period since the U.S. Civil War because Congress has in that time period providing federal question jurisdiction to federal courts, enacted a range of civil rights legislation, and conferred jurisdiction on the Federal courts to enforce them. The post-Civil War period also saw constitutional amendments applied directly to the states, with the Fourteenth Amendment’s application of due process and the Bill of Rights the most significant. As a result, the states and state courts have an increasing array of cases that can be reviewed by Federal courts under the U.S. Constitution and Federal statutes. Noncompliance With and Disobedience of Supreme Court Orders by State Courts The United States Supreme Court when deciding cases on review from the state courts usually remands the case to the state court when it reverses for “proceedings not inconsistent” with the Court’s opinion. This disposition leaves open the possibility that unresolved issues of state law will be decided adversely to the party prevailing in the Supreme Court or that the state court will so interpret the facts or the Court’s opinion to the detriment of the party prevailing in the Supreme Court. When it is alleged that the state court has deviated from the Supreme Court’s mandate, the party losing may appeal again or apply for mandamus to compel compliance. Statutorily, the Court may attempt to overcome state recalcitrance by a variety of specific forms of judgment- a writ of mandamus or a writ of prohibition being among them. If, however, the state courts simply defy the mandate of the Court, difficult problems face the Court, extending to the possibility of contempt citations. Perhaps one of the earliest examples of disobedience of federal authority arose out of the conflict in the late 1820s and early 1830s between a Native American tribe, The Cherokees, and the State of Georgia, which was seeking to remove them and seize their lands, with the active support of U.S. President Andrew Jackson. The Court had issued a writ of error to the Georgia Supreme Court to review the murder conviction of a Cherokee, Corn Tassel, and after the writ was served, Corn Tassel was executed on the day set for the event, contrary to the


S T U D Y T A S K 1

federal law that a writ of error superseded sentence until the appeal was decided. Two years later, Georgia again defied the Court when in Worcester v. Georgia, it set aside the conviction of two missionaries for residing among the Indians without a license. Despite the issuance of a special mandate to a local court to discharge the missionaries, they were not released, and the State’s governor loudly proclaimed resistance. Consequently, the two remained in jail until they agreed to abandon further efforts for their discharge by federal authority and to leave the State, whereupon the governor pardoned them. Modern relations between Federal and state courts are generally devoid of serous tension. Most issues are resolved efficiently and it has been the very rare situation when the Supreme Court must issue a writ or order of contempt to obtain compliance.


What is the scope of diversity jurisdiction in Art. III Sec. 2 of the Constitution? For example, could Congress pass a statute saying that a state-law suit by a New Yorker against a New Yorker and a Californian for $50 dollars can get into federal court?

Consider the following cases, all of which are actions brought in federal court under state law with an amount in controversy greater than $75,000. Is there diversity (or alienage) jurisdiction under 28 U.S.C. Section 1332?

o A Californian sues a New Yorker and a Californian.

o A Californian sues a New Zealander.

o A Ni Vanuatu sues a Palauan.

o A Californian sues Somoa.

o An Australian sues a Texan and a Californian.

o A Fijian sues a Samoan and a New Yorker.

o A New Yorker and a Fijian sue a Californian and a Ni Vanuatu.

o A New Yorker and a Tongan sue a Californian and a Marshall Islander.

o Vanuatu sues a Californian.

o A Californian sues a Tongan citizen domiciled in California who has not been admitted for permanent residence.

o A Californian sues an American citizen domiciled in Kiribati.


In Baker v. Keck, what was the citizenship of the Progressive Mine Workers Of America? Did is matter?

In Yellow Freight, why did the Court find there was concurrent jurisdiction by state and federal courts?

Why wasn’t there a federal question in Mottley I? Why did the Supreme Court take jurisdiction over a federal question raised by the defendant in Mottley II even though not stated in the complaint?

‘ ‘Pe rsona l ’’ Jur isd ic t ion o f S ta te and Federa l C our ts

PHYSICAL PRESENCE AND ‘‘MINIMUM CONTACTS’’

Jurisdiction refers to the power of the court to decide a case, i.e., to render a decision that will be recognized and enforced by authorities and other courts. Jurisdiction is of two types: subject matter jurisdiction and jurisdiction over the parties. A court must have both types of jurisdiction before it has jurisdiction to decide the case.

Jurisdiction over the parties (personal jurisdiction) relates to the question of whether someone from another state, Alaska, New York, or Nevada can be forced to come to the state where the lawsuit was filed (the "forum state") e.g. California, to defend against the lawsuit. The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum.

Jurisdiction Over Persons or Things - In personam, (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it. Requires that the court not only have jurisdiction over the subject matter of the action, but also that it have jurisdiction over each party to the action. Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment.

A person is subject to in personam jurisdiction on any of the following theories:

(1) Presence, i.e., being served with a copy of the summons and complaint while physically present in the forum jurisdiction. The physical presence of a defendant in the forum is a sufficient basis for acquiring jurisdiction over him, no matter how brief his stay might be. The case of Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877) is a leading case on “presence”.

(2) Domicile (residence) alone is a basis for exercising jurisdiction over an absent domiciliary. In Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).) the Court held a person may always be sued for all claims, regardless of where they arise, in


their state of permanent residence or in the case of a corporation, the state in which it is incorporated.

(3) Consent to personal jurisdiction. A defendant who has not been personally served in the jurisdiction can nevertheless voluntarily appear and submit himself to jurisdiction. In such cases defendant is said to have "consented" to jurisdiction. Can consent be obtained in advance of any lawsuit being filed? Can consent be implied? The court in Hess v. Palowski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) said yes. In that case it was held that a state can legislate that a non-resident motorist using its highways be deemed to have appointed a local official as his agent to receive service of process in any action growing out of the use of the vehicle within the state. However, the state must provide actual notice to the nonresident defendant.

(4) Minimum Contacts. Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state. Hence, a defendant who has never set foot in the state of California may nevertheless be subject to valid personal jurisdiction so as to be compelled to defend a lawsuit in California provided that he has minimum contacts with the forum state such that compelling him to appear and defend in the forum does not offend traditional notions of fair play and substantial justice. One of the precedent setting cases is International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).) holding that the due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations.

A distinction was recognized between “general” and “specific” jurisdiction in Helicopteros Nationales De Colombia, S.A. v. Hall, 466 U.S. 408, (1984). In order to assert general jurisdiction there must be substantial forum related activity

Minimum Contacts - The Four Principles of International Shoe

1) Jurisdiction is permissible when the defendant's activity in the forum is continuous and systematic and the cause of action is related to that activity.

2) Sporadic or casual activity of the defendant in the forum does not justify assertion of jurisdiction on a cause of action unrelated to that forum activity.

3) A court may assert jurisdiction over a defendant whose continuous activities in the forum are unrelated to the cause of action sued upon when the defendant's contacts are sufficiently substantial and of such a nature as to make the state's assertion of jurisdiction reasonable. ("general jurisdiction")

4) Even a defendant whose activity in the forum is sporadic, or consists only of a single act, may be subject to the jurisdiction of the forum's courts when the cause of action arises out of that activity or act. ["specific jurisdiction"]


on the part of the defendant. The threshold for satisfying minimum contacts is higher than in specific jurisdiction cases.

In the case of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958) the Supreme Court held that the "minimum contacts" a defendant must have with the forum state must be in the form of a purposeful affiliation on the part of the defendant, i.e., jurisdiction is impermissible where the defendant's contact with the forum is not purposeful.

It should be noted that many states have what are called "Long Arm" statutes (a reference to the authorization to "reach out" beyond the borders of a state). These predicate jurisdiction over non-residents upon a variety of contacts with the forum, including the transaction of business in the state, the commission of certain acts within the state, e.g., the commission of a tort, ownership of property, entering into a contract. These statutes generally authorize the exercise of personal jurisdiction to the broadest extent that due process will permit as set forth in the International Shoe case.

A court may also take jurisdiction over a thing as opposed to a person

In rem jurisdiction is the power of a court to deal with a thing (e.g. a parcel of land, an automobile, a ship) and to determine its status in relation to the legal rights of all persons known and unknown, i.e., in a proceeding in rem the court exercises its power to determine the status of property and the determination of the court is binding with respect to all possible interest holders in that property.

Quasi-in-rem jurisdiction is similar to in rem. In a proceeding quasi-in-rem, the court renders a judgment for or against a person but recovery is limited to the value of property that is within the jurisdiction and thus subject to the court's authority. The dispute that gives rise to an action quasi-in-rem may be related to the property or unrelated to it. In an action quasi-in-rem, the property may be used to satisfy any judgment in the action.

Challenging Jurisdiction - By making an "appearance" in response to a lawsuit a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any, in personal jurisdiction. In most states a defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction. If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction. In federal courts no special appearance is necessary. Jurisdiction may be challenged under Rule 12(b) of the Federal Rules of Civil Procedure or included as a defense in the answer.


The Requirement of Notice - The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought. If the defendant has not received proper notice, the court's power to adjudicate is imperfect. Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court.

Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. The three methods of serving process are personal service, substituted service, and constructive service. Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required.

Two questions to ask in analysing whether the notice is valid are:

1. Is there a statute which authorizes this particular method of notice?

2. If so, does the statute meet the minimum constitutional requirements?

Attacking Notice - Defective service of process can be challenged by a FRCP 12(b)(5) motion to dismiss or the objection can be made in the answer. Defective service of process goes to lack of notice. Due process requires notice and an opportunity to be heard.

Venue - If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in. The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute. Venue, unlike subject matter jurisdiction, may be waived. Stated another way, the distinction is this: jurisdiction is the power to adjudicate, venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants.

Under 28 U.S.C. Sec. 1391 in diversity actions, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found. In federal question cases there is no plaintiff's venue. The action may be brought only in the district where all defendants reside or the district in which the claim arose.

How to Analyze a Personal Jurisdiction Issue

1. Does a statute (long-arm-statute) purport to authorize the exercise of personal jurisdiction?

2. If answer is "no" then end of analysis. No personal jurisdiction can be asserted. If the answer is "yes" then;

3. Does the statute go beyond the constitutional limits of due process set forth in International Shoe?

4. If "yes" then no personal jurisdiction. If "no" then personal jurisdiction can be constitutionally asserted


S T U D Y T A S K 2

Transfer or Change of Venue & Forum Non Conveniens - This doctrine permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum. 28 U.S.C. Sec. 1406(a) provides that if a civil action is commenced in the wrong district or division, the court shall dismiss, but if it is in the interest of justice, the court may instead transfer the case to any district or division in which it could have been brought. Transfer is preferable to dismissal since it avoids the necessity of commencing a new lawsuit. Transfer can be ordered only if the court in which the action was brought has jurisdiction of the subject matter but it is not necessary that it have personal jurisdiction.

28 U.S.C. Sec. 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Under the rule of "forum non conveniens" a court can dismiss a suit even though it has both personal and subject matter jurisdiction and the venue is properly laid if there exists another forum so much more convenient for the parties and the courts that plaintiff's privilege of choosing his forum was outweighed. The enactment of 1404(a) helps to reduce opportunist plaintiffs filing in a forum where there may be a more mutually convenient forum.

Who is Woodson, the Respondent in World-Wide Volkswagen?

What is the legal basis for plaintiffs’ claimed assertion of jurisdiction over defendants in World-Wide Volkswagen?

What are the procedural issues in World-Wide Volkswagen?

The U.S. Supreme Court endorses the “minimum contacts” test set out in International Shoe. According to Justice White, who delivers the Court’s opinion, what are the two functions of the minimum contacts test?

What are International Shoe’s four pillars of minimal contact reaffirmed by the Court in World-Wide Volkswagen?

How do the Federal Rules of Civil Procedure stabilize and clarify the jurisdiction of federal courts?

A Note about Transna t iona l L i t iga t ion

As a major international trading country many transnational disputes are submitted to United States courts for adjudication. The global economy and general interconnectivity of all parts of the world these days equate to an increasing need for transnational dispute resolution. An array of activities are


potential subjects including traditional ones like commercial transactions, financial and investment schemes and tort actions as well as not so traditional subjects such as international human rights. Forums can range from private arbitration, administrative tribunals through state courts and all the way up the federal system to the Supreme Court. The appeal of the United States as a forum for transnational litigation is that there are minimal risks associated with losing (loser does not generally pay costs) and the potential for high returns from a sympathetic jury. It has been said that in terms of class actions (joinder of many plaintiffs) on securities transactions, the U.S. is the forum of choice for many European plaintiffs because the forums and remedies available are more limited in European nations.. With slight variation the rules that apply to jurisdiction to domestic parties also apply when one or both of the parties are situated outside of the United States. Under United States law, the power of American courts to consider transnational disputes may be limited by, among other things, principles of: subject matter jurisdiction, personal jurisdiction, service of process, forum non conveniens, sovereign immunity, act of state, comity among nations and contractual forum selection. Many of these legal principles apply in typical domestic litigation but assume perhaps even more significance in the international context. As American courts are increasingly challenged by transnational cases, the law concerning the limits of judicial power is steadily evolving. For example, over the past several years the Supreme Court has limited the ability of federal courts to consider certain international disputes based upon lack of subject matter jurisdiction. An example is in the extraterritorial application of U.S. anti-trust laws in which the Court limited application of the laws where conduct and injury were suffered only outside the U.S. See F. Hoffmann-La Roche Ltd. v. Empagran S.A. (03-724) 542 U.S. 155 (2004) Further shaping the jurisprudence of international law in the United States, an important decision regarding the jurisdictional reach of the Alien Tort Claims Act was issued by the Supreme Court in 2004 in the case of Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See http://www.rkmc.com/The-Alien-Tort-Statute-What-will-Sosa-Bring.htm for a review of Sosa and the ATCA as a means for foreign parties to address violations of human rights in U.S. Federal courts. The Foreign Sovereign Immunities Act of 1976 (FSIA), as amended, is codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602-1611 of the United States Code, and establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts—federal or state. It also establishes specific procedures for service of process and attachment of property for proceedings against a Foreign State. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. The FSIA may be found at http://www.law.cornell.edu/uscode/html/uscode28/usc_sup_01_28_10_IV_20_97.html On the flip side of the FSIA is a legal action against the United States government in a court outside of the United States. While this is certainly possible the rules of notice and service of process that would apply to the United States would similarly apply to a foreign government. See Patunvanu v Government of the Republic of Vanuatu and Federal Reserve Bank of New York, Civil Appeal Case 10 of 2005 (18 November 2005) for an example of a legal


action by a Vanuatu citizen ostensibly against the U.S. government that failed for want of personal service of notice in addition to a lack of subject matter jurisdiction. Related to the FSIA is the Act of State Doctrine. The “Act of State Doctrine” is a doctrine developed through caselaw, executive-branch actions, and, more recently, federal legislation. The doctrine limits the ability of U.S. courts, in certain instances, from determining the legality of the acts of a sovereign state within that sovereign’s own territory. The Act of State doctrine’s applicability has been limited. However, there still may be instances in which the Act of State doctrine applies to limit the power of a U.S. court to pass on a particular issue, even where the court otherwise has plenary jurisdiction over the dispute under the FSIA. Thus, although related, the FSIA and Act of State doctrines require separate analyses. Although, as briefly described above, there are many legal principles that may limit United States courts from adjudicating foreign disputes, it is important for the Pacific Island lawyer to recognize that jurisdictional matters are key to initiating or defending any matter involving litigation in the U.S. Courts. The balance of this topic will look at the basic jurisdictional issues of U.S. court adjudication in the context of transnational litigation. Subject Matter – Diversity of Jurisdiction Diversity of Citizenship is the principle means for subject matter jurisdiction of a federal court. This is also true in the case where one of the parties is foreign. The case of Bank of Hawaii v. Ataji L. Balos, et. Al., 701 F.Supp. 744, United States District Court, Hawaii (1988) is an example of how a Marshallese defendant(s) attempted to utilize some novel arguments to defeat the jurisdiction of a federal district court. Personal Jurisdiction in Transnational Litigation Personal jurisdiction is key to international litigation. Assuming that subject matter jurisdiction (the court’s power to entertain the subject of the dispute) is proper in an international case, the plaintiff must establish the United States court's personal jurisdiction over the defendant. As we saw earlier in our discussion about personal jurisdiction, due process under the Fourteenth Amendment to the United States Constitution (as well as most State Constitutions) protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful "contacts, ties or relations." The exercise of personal jurisdiction plays a critical role in international litigation including selection of the initial forum, discovery, defining the bounds of the litigation and enforcement of judgments. Undoubtedly, the United States has one of the most expansive views of personal jurisdiction in the world. Fair and open access to the court system has constitutional underpinnings. However, personal jurisdiction doctrine still places limitations on American courts. Lack of personal jurisdiction will result in dismissal.


1. The “Minimum Contacts” Requirement - The modern federal approach to due process analysis is the minimum contacts standard developed by the United States Supreme Court in International Shoe and its progeny including World-Wide Volkswagen. “Minimal Contacts” can have special importance in transnational litigation. Under the International Shoe approach, due process is only satisfied when the non-resident defendants have "minimum contacts" with the forum state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Whether the minimum contacts are sufficient to satisfy due process depends on whether the defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." The "purposeful availment" requirement ensures that a defendant will not be called into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts. In other words, the defendant's activities must justify a conclusion that the defendant "should reasonably anticipate being haled into court there." 2. General and Specific Personal Jurisdiction.- The "minimum contacts" analysis has been further refined by the Supreme Court into "general" and "specific" jurisdiction. Where the defendant's forum activities are "continuous and systematic," the exercise of jurisdiction may be proper without a relationship between the defendant's particular act and the cause of action. On the other hand, where the defendant's activities in the forum are isolated or disjointed, jurisdiction is proper only if the cause of action arises from a particular activity. 3. “Fair Play and Substantial Justice” - If "minimum contacts" with the forum state are established, Due Process requires a showing that the exercise of personal jurisdiction over the non-resident defendant would not "offend traditional notions of fair play and substantial justice." In other words, the question is whether the exercise of personal jurisdiction would be reasonable under the circumstances of the case. The United States Supreme Court has developed a series of common-sense factors which should be considered in determining whether the exercise of personal jurisdiction over a non-resident defendant comports with "fair play and substantial justice." A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. When analysing the relative burden of litigating in the forum state, "the primary concern is for the defendant's burden. This is because the law of personal jurisdiction is asymmetrical. If the burdens of trial are too great for a plaintiff, the plaintiff can decide not to sue or, perhaps, to sue elsewhere. A defendant has no such luxury.


4. Special Considerations for Foreign Defendants - Recent United States cases suggest a "higher jurisdictional threshold" if the defendant is a foreign citizen. The leading Supreme Court case is Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (Cheng Shin Rubber Industrial Co., Ltd., Real Party in Interest). Asahi is the defendant and a major Japanese industrial manufacturer who is the case involved products liability claims against a Japanese manufacturer. The Court determined that trial judges should weigh the interests of different nations, rather than different states, in the personal jurisdiction calculus. Explaining this factor in an international dispute, the Supreme Court warned:

World-Wide Volkswagen also admonished courts to take into consideration the interests of the "several States," in addition to the forum State, in the efficient judicial resolution of the dispute and the advancement of substantive policies. In the present case, this advice calls for a court to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the California court. The procedural and substantive interests of other nations in a state court's assertion of jurisdiction over an alien defendant will differ from case to case. In every case, however, those interests, as well as the Federal Government's interest in its foreign relations policies, will be best served by a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State. "Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field." citing United States v. First National City Bank, 379 U.S. 378, 404 (1965) (Harlan, J., dissenting)

Further, the Asahi court explained:

The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.

In Asahi, the United States Supreme Court characterized the burden of United States litigation on Asahi as "severe" because Asahi would be forced to "to traverse the distance between Asahi's headquarters in Japan and . . . California" and submit itself to a "foreign nation's judicial system." Note about Enforcement of Money Judgements in the U.S. by Foreign Courts What happens when a foreign court – let’s say in the Pacific – makes a money judgement against a U.S. citizen domiciled in the United States. Reciprocity of recognition and enforcement is generally not required for the enforcement of foreign money judgments in the United States. There is no constitutional or federal statutory provision that governs the recognition or execution of foreign country judgements in the United States. The procedure for recognizing and


S T U D Y T A S K 3

enforcing in the United States judgments entered in foreign countries is similar throughout the fifty states, with some states following common law decisions alone, and others, in states that have adopted the Uniform Foreign Country Money Judgments Recognition Act, through interpretation of that statute. The Uniform Foreign Country Money Judgments Recognition Act has been adopted in 17 states: Alaska, California, Colorado, Connecticut, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New York, Ohio, Oklahoma, Oregon, Texas, and Washington. The Act applies only to money judgments. See Restatement (Third) of the Foreign Relations Law of the United States § 481, Reporters' Note 1 (1987). The Uniform Foreign Money-Judgments Recognition Act provides that a foreign judgment shall not be refused recognition for lack of personal jurisdiction if the defendant was served personally in the foreign state, or voluntarily appeared in the proceeding, or agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved. In such a case the plaintiff could file for enforcement either with the state court or a U.S. federal court accepting diversity jurisdiction (and applying the appropriate state law of domicile of the defendant) . For example, see Tonga Air Service, LTD. v. Wayne Fowler, 826 P.2d 204, Supreme Court of Washington (1992)

What considerations did the court take into account in Asahi in ruling that the foreign defendant didn’t have the “minimal contacts” for jurisdiction?

Why do you think that defendants in Bank of Hawaii v. Balos didn’t argue forum non conveniens and that they had minimal contacts with Hawaii?, i.e. that the Bank should have brought the legal action in the Marshall Islands.

What is the FSIA and how does it limit the exposure of a foreign government to the U.S. court system?

Rev iew Quest ions

1. What is the Well-Pleaded Complaint Rule? What issue does a well-pleaded complaint address?

2. How does the legitimacy of personal jurisdiction by a State Court involve the application of Due Process under the 14th Amendment?

3. Why does diversity jurisdiction exist?

4. Let’s say I'm domiciled in the state of New York. I then establish the intent to move to the state of Arizona permanently, but on the way I get in


accident in the state of Oklahoma, where I remain for rehabilitation. Where do you think is my domicile for diversity of citizenship purposes?

5. Why not look to the citizenship at the time of the events being adjudicated rather than the citizenship at the time of the commencement of the suit in order to determine diversity?

6. Does the decision in Baker v. Keck make sense given the underlying purposes of diversity jurisdiction?

7. What aspects of Title 28 of the U.S. Code would apply to a foreign party?

8. Consider the following statement by Lord Alfred Thompson Denning about a quarter century ago about the U.S. Legal System. “As a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune. At no cost to himself, and at no risk of having to pay anything to the other side. The lawyers there will conduct the case "on spec" as we say, or on a "contingency fee" as they say. The lawyers will charge the litigant nothing for their services but instead they will take forty percent of the damages, if they win the case in court, or out of court on a settlement. If they lose, the litigant will have nothing to pay to the other side. The courts in the United States have no such cost deterrent as we have. There is also in the United States a right to trial by jury. These are prone to award fabulous damages. They are notoriously sympathetic and know that the lawyers will take their forty percent before the plaintiff gets anything. All this means that the defendant can be readily forced into a settlement. The plaintiff holds all the cards.” Do you think Lord Denning might be inflating his observation or is he accurate based on your knowledge of the U.S. legal system?

Seminar Top ic Topic: Advising a Pacific Island Nation on whether a U.S. Court has jurisdiction of it on a legal action brought against it U.S. District Court by a citizen of the United States. Hypothetical: You are a private lawyer in the beautiful Pacific Island nation of X. The Attorney General of the Government of the Republic of X has sought your advice after receiving informal notice that a legal action is being brought against it by a U.S. corporation in U.S. Courts. The Attorney General is angry – feeling that any adjudication of a matter involving the policy, legislative or executive functions of the Republic of X are sovereign matters beyond the jurisdiction of a U.S. court. He knows that you have a good deal of knowledge about the U.S. legal system and asks you to advise the Government of X on how it should proceed.


The facts are as follows. In 2005 the Government of X and Advocates for Pacific Island Nations, Inc., a U.S. corporation entered into a contract for services. Advocates for Pacific Island Nations (APIN) is a public relations firm based in Washington, District of Columbia, but registered as a corporation in the adjoining state of Virginia. Their business angle is that they can represent Pacific Island nations which do not have an Embassy in Washington by portraying the very best about those nations. Behind the scenes they say they can influence in a positive way U.S. government programs, policies and laws that may affect a client - Pacific Island nation. The 2005 contract between APIN and the Government of X is for three-years. Under the contract APIN is to provide X with government and public relations consulting services in Washington, D.C. in return for payment of $500,000 per year. Substantially all of APIN's services under the contract were to be performed in the Washington area, and the contract itself contained a provision stating that Virginia law governed any questions of interpretation. Both parties performed their obligations satisfactorily for the three year period. In 2008, the contract was renewed, without change, for an additional three years. Both the 2005 and 2008 contracts were signed by the Prime Minister of X, Edward Singapora. In March 2009, Mr. Singapora and his party are on the losing end of an election in which “expensive foreign contracts” are a big issue. The first step of the successor Prime Minster, Mr. Kalamati Nocontraka, is to order that no more payments be made on the 2008 contract with APIN and to terminate the contract. Shortly after this, APIN sues the Government of X for breach of contract, claiming that X terminated the contract without cause or legal justification and therefore owes APIN $450,000, the total remaining payments due under the 2008 agreement. Your next step is to research the issue, write a memo (no longer than 4 single spaced pages of text) to the AG of X (your professor!) and prepare for a presentation to the Council of State ( your seminar group!) on jurisdictional issues involved in the case. Your memorandum and presentation should address the AG’s strong desire to ignore the proceedings. Address the following issues in addition to any other issues that you deem relevant.

Where is the action likely to be adjudicated – federal or state courts? Why and where? Be specific about the possible venue.

How would the court adjudicating the matter obtain jurisdiction.

What U.S. statutes might apply? What are the jurisdictional issues if any? Is there any way to avoid jurisdiction of the court? What about using International Shoe or World-Wide Volkswagen to support avoidance of the matter?

What is required in terms of formal notice of process on the

Government of X? Where will it take place and in what manner?


What is the likelihood that the Republic of X would succeed in dismissing on the basis of sovereign immunity or the Act of State Doctrine?

What are the potential problems associated with simply ignoring

the matter? Please use any of the cases and statutes in your readings to support your conclusions. A useful research tool on actions involving commercial disputes involving non-U.S. governments may be found at http://www.proskauerguide.com/litigation/9/I . You should use your memorandum as a guide for discussing your conclusions at the seminar.

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Part 5 – Extraterritorial Influence of American Law

AMERICAN LAW IN THE PACIFIC

15 T O P I C



1. Introduction

2. The Historical Foundations of American Influence A. The Case of American Samoa and Guam B. Trust Territory of the Pacific Islands

i. Historic Foundations ii. The Relationship of the Pacific Islands

and the U.S. under the TTPI a) Governance b) Trust Territory Code c) Judiciary d) Transitions from the TTPI

3. The Compacts of Free Association - FSM, RMI and Palau

A. Nature of the Compact Relationship B. Executive and legislative Functions C. Influence of the U.S. on Judicial Systems and Sources of Law D. Custom and Traditional Practices E. U.S. Law as a Framework and Source – Reflecting Social Norms

and Values? F. Access to U.S. Courts

4. Overseas “Flag Territories” – Samoa, CNMI and Guam A. Three Degrees of Limited Self-Governance B. Nature of Government C. Judiciary and Law

i. Judiciary

ii. Application of U.S. Constitution – Territorial Clause and Insular Cases

iii. Land and Equal Protection Clause

D. Protection of Tradition of Custom




The distinguishing features of the Freely Associated States and Flag Territories and the nature of their relationship to the United States government through a Compact of Free Association (FSM, RMI, Palau), Organic Act (Guam), Compact (CNMI) or cessation treaty (American Samoa).

The degree to which the U.S. legal system shapes the legal systems of the FAS nations and Flag Territories.

The access that Flag Territories and FAS nations have to U.S. Courts.

The provisions of the U.S. Constitution that apply to Flag Territories through application of the Insular Cases and the Territorial Clause of the U.S. Constitution.

The extent to which U.S. statutory and case law is applied in FAS nations and Flag Territories.

The systems for resolving disputes between FAS nations and territories.

How traditional and cultural systems in the FAS nations and Flag Territories are protected from the adverse influences of U.S. law.





Presc r i bed Read ing

Trust Territory of the Pacific Islands

Trust Territory Agreement (U.S and U.N.) People of Saipan v. Department of Interior, 502 F.2d 90, 99 (9th Cir.

1974))

Table of Contents of Trust Territory Code Judicial History of Trust Territory, Chapter 5, Bello

FSM, Marshall Island, Palau

Tammed v. FSM, 4 FSM Intrm. 266, 281-282 Semens vs. Continental Airlines, Inc., 2 FSM Intrm. 131 (Pon. 1985)

People of Bikini v. United States, 554 F.3d 996 (2009)

Customary Law And Received Law In The Federated States Of

Micronesia, Journal of South Pacific Law Volume 10 2006 - Issue 1, Ankush Sharma

Custom and Constitutionalism in the Federated States of Micronesia,

APLPJ_03.2_, King (2002) Territories - CNMI, Guam and American Samoa

Com. of Northern Mariana Islands v. Atalig, 723 F.2d 682 (C.A.9 (N.Mariana Islands), 1984) (No Applic of 6th Amend to CNMI)

Wabol v. Villacrusis, 958 F.2d 1450 (C.A.9 (N.Mariana Islands), 1992)

Guam Society of Obstetricians and Gynaecologists v. Ada, 962 F.2d 1366 (C.A.9 (Guam), 1992)

History and Development of the Judicial Systems in American Samoa, CNMI and Guam, Pages 67-99, Government Accountability Office, Report O-08-655, June 2008

Summary Of The “Insular Cases” by Dan MacMeekin

Seminar

Curfews, Culture and Custom in America Samoa, Asian-Pacific Law & Policy Journal, Daniel Hall (2002) Resisting Temptation in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa, Jeffrey B. Teichert


Al te rna t i ve Read ing

Constitutions, Organic Law and Covenant:

o Palau

o FSM

o Marshall Islands

o Covenant to Establish a Commonwealth of the Northern Mariana Islands

o CNMI Constitution (online link)

o Guam (Organic Law)

o American Samoa Constitution

o American Samoa Cession Treaty

Compacts of Free Associations

o FSM

o RMI

o Palau

Cases

o Samuel vs. Pryor, 5 FSM Intrm. 91 (Pon. 1991) (Immunity of U.S. govt. agency under the compact) (also shows use of U.S. law as reference)

o Rayphand v. Sablan, 95 F.Supp.2d 1133 (N. Mariana Islands, 1999) - One man, one vote doesn’t apply to CSMI)

Reports, Journals and Web Sites

o The Supreme Court Of The Federated States Of Micronesia: The First Twenty Five Years, Hon. Dennis K. Yamase

o Our Island Friends: Do We Still Care? The Compacts of Free Association with the Marshall Islands and Micronesia, Center for Interdisciplinary Law and Policy Studies at the Moritz College of Law, Stanley K. Laughlin, Jr., (2007)

o The U.S. Insular Areas, Application of the U.S. Constitution, Government Accounting Office (1997)

o Marshall Islands Courts System Information, C.J. Carl Ingram

o About the courts of the Northern Mariana Islands (web site link)


I n t roduc t ion

In Topic 14 we began to see the relevancy of U.S. law and courts to the Pacific Islands nations on issues concerning jurisdiction. In this final topic we will address more directly and dynamically the extent of U.S. Law influence in the Pacific. The extent of that influence is greater than one might first think. It encompasses six jurisdictions broken into two categories. The Federated States of Micronesia (FSM), Palau and the Republic of the Marshall Islands (RMI) form the first category known as the Freely Associated States that entered into Compact of Free Association with the United States. These are sovereign nations formerly administered as a U.N. trust territory and now in a close political relationship with the United States. The second category includes American Samoa, Guam and the Commonwealth of the Mariana Islands. They are dependent territories of the United States with varying degrees of self-government. We will refer to these as Flag Territories. This Topic is in three parts. First we will examine the historical foundations of America’s relationship with the Pacific Island nations. This starts with the acquisition of American Samoa and Guam at the start of the 20th Century and the designation by the United Nations of the Trust Territory of the Pacific Islands in 1947. Territorial government and law in the territories during this period was decidedly American in design and flavour influencing the later political and legal development of the territories. The nature and degree of this influence will be explored in the 2nd and 3rd parts looking in particular at the confluence of customary practices and a formal system associated with the legal heritage of America. The seminar for this week will provide an opportunity to discuss protecting culture and customary practices in a territory where U.S. law plays a prominent role.

The H is tor ic a l Foundat ions o f Amer ica n Law in the Pac i f i c

THE CASE OF AMERICAN SAMOA AND GUAM American Samoa and Guam have the earliest and most sustained contact with the United States of the six jurisdictions studied in this topic. Neither of the territories were part of the Trust Territory of the Pacific Islands. By the Treaty of Berlin of 1899, the United Kingdom and Germany renounced in favour of the United States all their rights and claims over the eastern islands of Samoa. This treaty went into effect on February 16, 1900. On April 17, 1900, the Matai (chiefs) of Tutuila formally ceded the islands of Tutuila and Aunu'u to the United States. On July 16, 1904, the king and Matai of Manu'a ceded the islands of Ta'u, Ofu, Olosega, and Rose Atoll to the United States. Congress formally


ratified the 1900 and 1904 deeds of cession retroactively in 1929. Swains Island became part of American Samoa by joint resolution of Congress in 1925. The initial Western contact with Guam occurred in 1521, when Ferdinand Magellan reached the southernmost Mariana Islands during his circumnavigation of the globe. Spain claimed the Guam and colonization commenced in 1668. The indigenous Chamorro population then was estimated at 50,000 throughout the Mariana Archipelago. However, introduced diseases and the Spanish-Chamorro wars decimated the Chamorro, reducing the number of inhabitants to fewer than 2,000 by 1700. The Spanish regime ended in 1898 when American forces took Guam during the Spanish-American War. The Treaty of 1898, negotiated under the administration of U.S. President McKinley, transferred control of Guam to the United States. Spain later sold the rest of the Mariana Islands, i.e. present day Northern Marianas, to Germany. From 1899 to 1941, Guam was under U.S. Naval Administration. At the outbreak of World War II, the Japanese seized Guam and occupied the island for two and a half years. American forces recaptured Guam in July 1944, and the U.S. Naval Administration resumed responsibility when peace returned. We will return later in this Topic to the current status of Guam and the Northern Mariana Islands. TRUST TERRITORY OF THE PACIFIC ISLANDS Historical Foundations The Northern Marianas - The ancient people who came to the Marianas more than 3000 years ago became known as the Chamorro people. Spain took possession of the archipelago in 1565 and ruled it for more than 300 years. Spain ceded Guam to the United States following the Spanish-American War, and then sold the Northern Mariana Islands to Germany in 1899. Japan took control of the Northern Mariana Islands in 1914, the first year of World War I. By ratification of the League of Nations in 1920, Japan received a mandate over the islands. This mandate lasted until 1945 with 30,000 Japanese nationals residing on Saipan. The Japanese developed the island largely for sugar production and processing. World War II came to the Marianas in 1941 with major battles between the Japanese and American’s occurred in the Northern Marianas in 1944. The war, of course, ended with the surrender of Japan on August 15, 1945. A U.S. military government was instituted in the Northern Mariana Islands. In 1947, the Northern Mariana Islands became part of the post-World War II United Nations’ Trust Territory of the Pacific Islands (TTPI). Republic of Marshal Islands - The Marshall Islands were claimed by Spain in l592, but were left basically undisturbed by the Spanish Empire for 300 years. In l885, Germany took over the administration of the Marshall Islands. Marshallese iroij (chiefs) continued to rule under indirect colonial German administration.


At the beginning of the First World War, Japan assumed control of the Marshall Islands. U.S. military yforces took control from the Japanese in early l944 following intense fighting on Kwajalein and Enewetak atolls. In l947, the United States entered into agreement with the United Nations Security Council to administer the Trust Territory of the Pacific, of which the Marshalls were a part. . Federated States of Micronesia – The indigenous people inhabiting the Caroline Islands that now make up the FSM had their first contact with Europeans in the early 16th Century. Spain assumed sovereignty until 1899 when it sold its interest to Germany. Japan took control in 1914 and was given a League of Nation’s trustee mandate over the islands until the U.S. assumed military control at the close of World War II. Palau - Western contact with Palau first took place in l783. Spain claimed control of Palau until 1899. In l899, Spain also sold Palau, along with the rest of the Caroline and Northern Mariana Islands, to Germany following Spain’s defeat in the Spanish-American War. Japanese forces occupied Palau in 1914. The League of Nations as it did with the rest of Micronesia recognized Japan as administrator of a League of Nation’s trust territory. Start of the Trust Territory of the Pacific Islands – The United Nations created the Trust Territory of the Pacific Islands (TTPI) in 1947. The islands of Pohnpei (with Kosrae), Chuuk, Yap (now the Federated States of Micronesia), Palau, the Marshall Islands, and the Commonwealth of the Northern Mariana Islands constituted the six districts of the TTPI. The U.S. Department of Insular Affairs provides extensive historical information about the history of the former Trust Territories including at http://www.doi.gov/oia/Islandpages/rmipage.htm . Historical information about Micronesia in the pre-TTPI period including the court systems under the administration of Germany and Japan may be found at http://www.justice.gov.mp/history.aspx

The Relationship of the Pacific Islands and the U.S. under the Trust Territory of the Pacific Trust Territory Characteristics - The United States and the United Nations Security Council entered into a trusteeship agreement for Micronesia on April 2, 1947 covering the area governed today by FSM, Palau, the RMI and the CNMI. (See Trust Territory Agreement) The trusteeship agreement named the area the Trust Territory of the Pacific Islands and designated it as a strategic trusteeship. The United States was designated the administering authority and as such was to "have full powers of administration, legislation, and jurisdiction over the territory." The United States on its part agreed to administer the trust in accordance with the relevant articles of the UN charter. The text of the Agreement in part reads:

In discharging its obligations under Article 76(a) and Article 84, of the Charter, the administering authority shall ensure the United Nations in the maintenance of international peace and security. To this end the administering authority shall be entitled: 1. to establish naval, military and air bases and to erect fortifications in the trust territory; 2. to station


and employ armed forces in the territory; and 3. to make use of volunteer forces, facilities and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for the local defence and the maintenance of law and order within the trust territory." The Trusteeship agreement for the United States Trust Territory of the Pacific Islands, Article V and VI (1947). United Nations Charter, Chapter XII, Article 76(b) (1944).

Two themes govern the U.S. administration of the TTPI based on its role as the administering authority: strategic military placement and obligations to promote the political, economic, social and educational advancement of the people living under the TTPI. The latter represents the US. Government’s obligations under Article VI of the Agreement. The former represents the allowance given to the U.S. to maintain a military presence, i.e. a continuation of its role from World War II. Under the Agreement the United States was entitled to establish military facilities in the trust territory and deploy armed forces. The United States was also obligated to promote the "progressive development towards self-government or independence" with the Agreement providing that the choice between independence or self-government shall be determined by "the freely-expressed wishes of the people concerned". The Agreement required the United States to give the inhabitants of the trust territory a progressively increasing role in the administrative services of the territory to develop their participation in government, and to give due recognition to the customs of the people in the territory in providing a system of law. That obligation was based upon Article 76(c) of the U.N. Charter. It should be noted that the U.S. government assumed responsibility for Trust Territory, ultimate responsibility remained with the U.N. Security Council and the U.N. Trusteeship council (Articles 4 and 14, Charter of the United Nations). The Agreement guided the relationship between the U.S. and the trust territories. The characteristics of the more than 40 years TTPI relationship are reflected in today’s relationship between former TTPI territories and the U.S. Indeed, it can be argued that the military, social, economic and political obligations of the trustee relationship are key to the current relationship. The relationship with the North Pacific Islands was and is more than a political arrangement, but one with military implications for the U.S. and economic implications for the Pacific Islanders governed by the TTPI. The trust territory relationship ended in 1994 when Palau, the very last territory under United Nations’ trusteeship, ratified its independence in a compact of free association. However, the dynamics of military strategy and economic support remain essential parts of the relationship of the United States with the former TTPI as well as with Guam. High Commission – The governance and legal systems in the TTPI grew and were modified as the territory moved towards independence or self-governance. The administration of the territory bounced between military and civilian administration for its first eighteen years. In 1962 administration was assigned to a civilian administration for the remainder of the trust territory. After the U.S. Congress’ approval of the TTPI agreement the United States Congress delegated its administrative responsibility under the Trusteeship


Agreement to the President (48 United States Code, Sec. 1681(a)), who then delegated it to the Department of Interior through Executive Order No. 11021, 27 Fed. Reg. 4409 (May 9, 1962). The Secretary of Interior established a local government in Micronesia consisting of executive, legislative and judicial branches. (Secretarial Order 2918, 34 Fed.Reg. 157 (Dec. 27, 1968)) The High Commissioner of the Executive Branch of the Trust Territory was appointed by the President with the advice and consent of the United States Senate pursuant to 48 U.S.C. Section 1681a. The High Commissioner was under the general supervision of the Secretary of the Interior and had numerous executive responsibilities in the Trust Territory. Those included the authority to submit proposed legislation to the Congress of Micronesia and the power to appoint officials to the executive branch pursuant to Trust Territory Code Section 24 (1973) For a description of the authority of the High Commissioner of the Trust Territory, see the opinion in People People of Saipan v. Department of Interior, 502 F.2d 90 (9th Cir. 1974). The High Commissioner was assisted in the administration of the TTPI by six District Administrators. The six districts each had its own legislature – the Marshalls, Ponape (including Kosrae), Truk, Yap, Palau, and the Marianas. Judiciary - The TTPI court system consisted of a High Court, District Courts and community courts. The 102 community courts had jurisdiction to hear small claims and misdemeanour crimes. The Secretary of Interior (a cabinet level position in the U.S.) appointed the Chief Justice and Associate Justices of the High Court (which had trial and appellant functions), while other judges were appointed by local administrators within the Trust Territory government. courts in Micronesia had general jurisdiction and were empowered under some circumstances to review actions of the High Commissioner. As we see in People of Saipan v. Department of Interior, 502 F.2d 90, 99 (9th Cir. 1974)) the U.S. federal courts recognized consistently that they lacked jurisdiction over matters falling under the jurisdiction of the TTPI. In People of Saipan the Court of Appeals for the 9th Circuit confirmed a lack of jurisdiction over the plaintiff’s civil action against the High Commissioner for permitting Continental Airlines to construct and operate a hotel on public land in Saipan. The ruling showed significant respect by the U.S. Federal Courts for the trust territory relationship and the jurisdiction of TTPI courts. . Legislative Branch - The legislative branch consisted of a Senate and House of Representatives, Order 2918, part III § 1, whose members were elected locally. The Congress of the Trust Territory has authority to enact laws which may not be inconsistent with treaties or international agreements of the United States, laws of the United States expressly applicable to the Territory, Executive Orders, or Orders of the Department of Interior. Order 2918, part III § 2. The Written Law of the TTPI came from a variety of sources.

Federal laws and treaties applicable to the TTPI, and executive orders of the President of the United States and the Secretary of the Interior.

Two volumes of codified law commonly referred to as the Trust Territory Code was enacted into law in 1970 by the Third Congress of Micronesia. There was a wide range of issues covered in the TT Code. American law


served as the foundation for this code. See Table of Contents of Trust Territory Code

There are eight volumes of digest with the first four annotated with Trust

Territory case law. The Code survived the transformation of the TTPI to sovereign states or self-governing territories. Large blocks of TTPI code were incorporated into the “new law” of the FSM, Palau and Marshall Islands. The law of corporations in the CNMI, for example, was actually the corporation law contained in the Trust Territory Code. The Criminal Code in FSM was essentially the criminal code of the TTPI code. “To say that the Trust Territory of the Pacific Islands had a profound and lasting influence on the present day entities that were once the districts of the TTPI would be a gross understatement” concludes CNMI lawyer Timothy H. Bellas. Judicial History of Trust Territory, Chapter 5, Bello The structure of government that evolved in the new political entities was in large part patterned after the organization of the TTPI - many of the departments that exist in the CNMI, for example, are the same as those that existed within the Office of the High Commissioner. Many of the most prominent political leaders of the new political entities were persons who held responsible positions under the TTPI administration. It is not difficult to suggest that the lessons learned from the TTPI were used to shape the early development of the CNMI, Palau, the FSM and the Marshalls. It is equally obvious that the TTPI period of regional history established the American legal system in Micronesia. On the other hand one must wonder whether a judicial system and set of model laws derived from the United States was relevant to the vast majority of the territory’s population. The system may have conformed to American and international standards, but did it more than fractionally meet the desires and needs of the various communities composing the Territory? Was this a “transplanted law” as described by Brian Tamanaha in his book Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (1993) Was it a law autonomous from the social and cultural institutions of the territories and, if so, what this outcome one that benefited future generations of the former TTPI? These are interesting questions to contemplate as you read through the remaining material in this topic. Transition from Trust Territory Status - In 1976, Congress approved the Covenant to Establish a Commonwealth of the Northern Mariana Islands (CNMI) in Political Union with the United States. This was the first of the negotiated agreements to end the TTPI. The CNMI Government adopted its own constitution in 1977, and the constitutional government took office in January1978. The Covenant was fully implemented on November 3, 1986, pursuant to Presidential Proclamation No. 5564, which conferred United States citizenship on legally qualified CNMI residents. See Presidential Proclamation The Trusteeship Agreement terminated with respect to the Republic of the Marshall Islands on Oct. 21, 1986, the Federated States of Micronesia and the Republic of Palau on Oct. 1, 1994. Palau became the last territory administered under the U.N Trust Territory system putting the U.N. Trusteeship Council


S T U D Y T A S K 1

effectively out of work. Insistence by Palau in compact negotiations for a nuclear free zone and resistance by the United States was a principle reason for the eight year delay. Palau eventually conceded on tis nuclear free demand. The dynamics of change in the TTPI - By 1969 the ‘future political question for Micronesians was quickly becoming an overriding issue for the people of these islands” (Olympia Borja, Vice-President of Micronesia Congress). The road leading to the end of trustee status for Micronesia included intense negotiations in all the districts with some favouring independence and some leaning more towards maintaining territorial status. The desire for political independence in all the districts was balanced against the realization that true economic independence from the U.S. was not feasible at that time. Strategic military needs including the need for reliable bases in the Pacific shaped the interests of the U.S. government. These competing needs helped shape the decision of each of the districts. Across this dynamic was also the very deeply shared concern among Pacific Islanders in the TTPI that the cultural fabric needed to be protected from economic exploitation and the negative repercussions of borrowed U.S. substantive and procedural law. It is also important to note that the U.S. conducted a large amount of nuclear testing in the Marshall Islands over much of the trust territory era. This certainly has created an obligation on the part of the U.S. that has been manifested in direct and indirect payments of more than one-half billion U.S. dollars The nature of this testing within a U.N. Trust Territory certainly raises questions about whether the U.S. government violated its obligations as a trustee. In the following sections we will address the influence and relevancy of American law in the COFA nations and the Flag Territories within the context of the competing interests described in the preceding paragraph.


What were the political motivations of the U.S. in being designated

the administrator of the TTPI?

What was the rationale of the Court in Saipan v. High Commissioner for refusing jurisdiction over the case? Would it have mattered if the U.S. Congress had created legislation giving the federal courts jurisdiction over TTPI matters or particular matters such as the subject matter of the case?

How was the government and judiciary of the TTPI organized? To what extent was American Law incorporated into the TTPI Code?


The Compacts o f F ree Assoc ia t ion and FSM , RMI and Pa la u

Out of all the districts of the TTPI it was only the Northern Mariana Islands that chose to forego independence for a closer territorial relationship with the United States. The other three jurisdictions entered into negotiations that resulted in Compacts that defined the transition to independence and ongoing political and economic obligations. The Compacts have continued very strong economic, military and political linkages born in the TTPI period. A consequence of these post-TTPI linkages has been the continuing influence of American Law in the North Pacific island nations Nature of the Compact Relationship The Compact of Free Association is a set of international agreements between the United States Government and the Marshall Islands, the Federated States of Micronesia, and Palau, which are also known collectively as the Freely Associated States (FAS). They provided the framework for these former TTPI areas to move beyond trust territory status to independence. The Compacts recognize the FSM, Palau and RMI as sovereign states with the capacity to conduct foreign affairs consistent with the terms of the Compact. The Compact places full responsibility for the defence of the freely associated states with the United States. The Compact also provides grant funds and Federal program assistance, principally through the U.S. Department of the Interior. The Compacts between the U.S. and the RMI and FSM originally went into effect in 1986, while the compact with Palau became effective in 1994. Under the original terms of the Compacts, the provisions in Title II (Economic Relations) and Title III (Defence Relations) of the Compact were to be re-opened for negotiation fifteen years after the execution of the original Compact. The economic provisions for FSM and RMI expired in 2001 but were extended 2 years while negotiations continued for new Compacts. The economic provision for Palau didn’t expire until September 2009. In December 2003 the amended Compact of Free Association came into effect in FSM and RMI extended expiring U.S. funding for 20 years. From the U.S. standpoint it allows the continued use of Kwajalein Atoll in the Marshall Islands as a U.S. military missile tracking station and the ports of the FSM for naval purposes. The renewed Compact demonstrates the dynamic between the U.S. need for military establishments (especially in regards to the Kwajalein missile testing facility) and the needs of the freely associated states for economic support and unfettered movement for its citizens to the U.S. Although the basic relationship enshrined in the first Compact was unchanged there were significant changes in the financial provisions of the amended Compact. The Amended Compact included creation of a Trust Fund to serve as an ongoing source of revenue after Fiscal Year 2023 and to contribute to the long-term budgetary self-reliance of the RMI and FSM. See Compacts for FSM and RMI (2003) and Palau (1994). For a good assessment of the compact relationships see Our


Island Friends: Do We Still Care? The Compacts of Free Association with the Marshall Islands and Micronesia, listed in the alternative reading list. Executive and Legislative Functions of FSM, RMI and Palau The U.S. influence on political systems can be seen in the systems of federalism in FSM and Palau. Of the three nations the government system least influenced by the American system is the Marshall Islands. The government of the Marshall Islands is a blend of European, American and traditional systems. Executive power lies with the President, who is head of state and head of government, and the Presidential Cabinet. The President is elected by the Nitijela, i.e. Legislature. The President appoints cabinet ministers to leading positions in the government departments with the approval of the Nitijela. The legislative branch includes 12 traditional chiefs on the Council of Iroij (upper house), as well as 33 members who are elected to the Nitijela (lower house). The judicial branch includes a Supreme Court, High Court, District Courts, Community Courts and Traditional Court (which handles land disputes using custom). All three nations have constitutional provision protecting customary practices which helps buffer against the influence of U.S. case law, which is widely cited in the opinions of higher courts in all three nations. Article V of the FSM Constitution is dedicated to traditional rights and goes so far as to say that “(i)f challenged as violative of Article IV (the Declaration of Righs), protection of Micronesian tradition shall be considered a compelling social purpose warranting such governmental action.” A similar provision is in Article V of the Palau Constitution. The RMI Constitution provides constitutionally mandated institutions to protect or interpret custom including the Council of Iroij and Traditional Rights Court. Against that background of protecting customary practices the legacy statutes for all three nations is the TTPI Code. Entire sections of the current law were transferred from the Code of the TTPI into the post-independence codes of the three nations. (Continuation of Trust Territory Code - Proclamation) The TTPI Criminal Code, for example, was transferred almost verbatim into the FSM Code. U.S. case law in referenced frequently by the higher courts of the three nations. Even though U.S. case law is only accorded permissive authority it is cited so frequently in judicial opinions that it takes on the status of mandatory authority in respect to certain topics. This authority can even tread into disputes involving land even though land is generally within the realm of customary law. For example in cases involving land issues in the Marshall Islands the Supreme Court recently referenced the doctrine of collateral estoppel to dismiss the cause of action. Three U.S. cases were cited as authority in support of the application of the doctrine to extinguish the appellant’s claim in customary lands. No RMI case law was cited. See Ueno v Hosia [2007] MHSC 2; 3 MILR 29 (17 May 2007) The Federated States of Micronesia, the Marshall Islands and Palau have code commissions that carry out statute revision work. For example in 2000 the Palau Code Commission completed the nation’s first review of the pre-existing code. See Yap State Code Commission 2000 revision statement. It may be that the revision of codes over time will diminish the influence of the U.S. template that derives from the TTPI code. However the prominent role of U.S. case law will


likely continue for a considerable time until each of the jurisdictions develop original case law. It can be argued that even when that occurs, the imprimatur of American precedent will have been firmly imbedded on the jurisprudence of the three nations. The relevancy of U.S. law is apparent in the standards for admission to the bars of each nation and, in the case of FSM, the bars of the four states. For instance, admission to the Palau bar requires the taking of a three part examination that includes an essay examination from the U.S. state of Oregon, the Multi-State Examination provided in most jurisdictions in the U.S. and the Palauan-based essay examination. Existing membership in one of the U.S. bar associations is transferable to Palau. See http://www.palaubar.org/Notice.html Influence of the U.S. on Judicial Systems and Sources of Law At present, the FSM employs a federal system that is not unlike the U.S. in terms of the jurisdiction of state and national courts. Until 1991, the national government was responsible for the prosecution of major crimes. However, through a 1991 amendment to the FSM Constitution, jurisdiction to prosecute most crimes was transferred to the states. Article IX, Section 2(p), which enumerates the powers of the FSM Congress, confers upon Congress the authority to "define national crimes and prescribe penalties, having due regard for local custom and tradition." Serious crimes, such as murder, rape, and assault fall within the jurisdiction of the states, unless a particular crime has a national or international character, such as if it was committed against the national government or against one of its officials. The legal system of the Marshall Islands derives from the Constitution of the Marshall Islands, the laws of the Marshall islands as prescribed by the Nitijela, the laws of the U.S. Trust Territory that are not incompatible with the Marshall Islands Constitution or laws of the Nitijela, the customary law of the Marshall Islands, particularly in relation to land, marriage and the holding of chiefly titles, and the common law of United States and England not inconsistent with the above. Article 13.1 in reference to the TTPI code of the RMI Constitution provides that “the existing law shall, until repealed or revoked, and subject to any amendment thereof, continue in force on and after the effective date of this Constitution.” Custom and Traditional Practices

The Constitution of the Federated States of Micronesia (FSM) and the four state constitutions contain a “judicial guidance clause”, which explicitly requires that court decisions be consistent with Micronesian customs and traditions and with the constitution, including the Declaration of Rights. The clause promoted a change from the TTPI court practices in which frequently custom was not invoked. The courts have considered the purpose of the clause to be that future decisions would be based not on what had been done in the past but on a new basis that would allow consideration of pertinent aspects of Micronesian society and culture. The courts have also seen the clause as intending that the new Constitution itself would be interpreted in light of Micronesian customs and


traditions. One commentator observes that although the FSM Constitution mirrors some of United States constitutional law, the purpose of the clause was to “cast off the moorings to set its course into the future.” (Bruce Turcott “Constitutional Jurisprudence of the Federated States of Micronesia Supreme Court” 6 Pacific Basin Law Journal 103, 108 (1989) Another commentator argues that the clause has not been applied as the Constitution drafters intended, and that their fear – that the courts would simply follow US case law – has become a reality. He contends that although many decisions appear to celebrate the special position of custom and tradition under the Constitution, in reality there has been no substantive change from pre-independence practice in which custom was subordinated. (Brian Z Tamanaha “A Proposal for the Development of a System of Indigenous Jurisprudence in the Federated States of Micronesia” (1989) 13 Hastings International and Comparative Law Review) The Republic of the Marshall Islands has four court systems: Supreme Court, high court, district and community courts, and the traditional rights court. Trial is by jury or judge. Jurisdiction of the traditional rights court is limited to cases involving titles or land rights or other disputes arising from customary law and traditional practice though these disputes may also be heard directly by the high court or reviewed within its appellate jurisdiction. (see Summary of RMI Court System) U.S. Law As Framework and Source - Reflecting the Social Norms and Values? – There is little debate that the judicial framework and law of FSM, Palau and the Marshall Islands have their foundation in American law. The question that arises is whether the legal system in these nations remains essentially an American transplant situated on top of a social-cultural-economic system that is not analogous. Alternatively is the role of the American legal system just to serve as the initial foundation upon which each nation incorporated its own values, norms and institutions? The cases of Tammed v. FSM,and Semens vs. Continental Airlines, Inc.are both FSM cases that represent the dilemma for the nations of the former TTPI in terms of their relationship with American law. In Semens vs. Continental Airlines, Inc. the FSM Supreme Court held that Common law decisions of the U.S. are an appropriate source of guidance for this Court for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the FSM. Review of decisions of courts of the U.S., and any other jurisdictions, must proceed however against the background of "pertinent aspects of Micronesian society and culture." In Tammed v. FSM, we see the constitutional role for customary practices being recognized by the FSM. The FSM Supreme Court held in Tammed that it has a duty to give full and careful consideration to a request to consider a particular customary practice or value. “This typically will require careful investigation of the nature and customary effect of the specific practices at issue, a serious effort to reconcile the custom or tradition with other constitutional requirements, and an


individualized decision as to whether the specific custom or tradition should be given effect in the particular context of the case then before the court.” Ankush Sharma and former FSM Chief Justice King in their journal articles represent differing views on Tammed and the subject of how custom is recognized and utilized by the FSM Court System, whose prevailing principles are procedurally and substantively based on American law. See Customary Law And Received Law In The Federated States Of Micronesia, Journal of South Pacific Law Volume 10 2006 - Issue 1, Ankush Sharma and Custom and Constitutionalism in the Federated States of Micronesia, APLPJ_03.2_, King (2002) (prescribed reading) Access to U.S. Courts by Citizens of the Freely Associated States - The U.S. courts do not generally have jurisdiction over matters brought against the U.S. government by citizens of FSM, Palau and RMI. The Compacts generally restrict the jurisdiction of U.S. courts and in the case of the Marshall Islands the compact very specifically restricts jurisdiction over claims brought by Marshallese for damages from nuclear testing by the U.S. For example the U.S. courts do not have jurisdiction over an action for damages for expropriation of land during the TTPI after the effective date of the Compact between that freely associated state and the U.S. In Iso Nehnken v The United States (Federal Circuit Court of Appeals, 1997) the Plaintiff’s complaint against the U.S. government for damages for expropriation of land by the Trust Territory Government was found by the FSM Supreme Court to be barred by the statute of limitations and a failure to state a claim upon which relief can be granted. The Plaintiff then appealed to the U.S. Court of Appeals for the Federal Circuit. The Court of Appeals held that the Compact permits a claimant to present a petition concerning an unpaid judgment entered against the United States to it pursuant to the Compact (See Section 174(c) of the Compact) only when a judgement has been rendered against the U.S. by the FSM Supreme Court. In this case the Plaintiff lacked standing because the judgement by the FSM courts was not in favour of the Plaintiff, i.e. there was no enforceable judgement against the U.S. government pursuant to Section 174 of the Compact. Extensive and prolonged nuclear testing in the northern Marshall Islands has led to an ongoing obligation on the U.S. government. As recently as January 2009 the Court of Appeals ruled in People of Bikini v. United States, 554 F.3d 996 (2009) that the U.S. Courts did not have jurisdiction over the Plaintiff’s (representing the people from atolls where testing occurred) claim for over 500 million dollars in damages. The Claims Tribunal established under the Compact for considering claims for nuclear testing damages provided a significant award.. Despite the award the Congress did not appropriate additional funds for settlement of the claims even though the Marshall Islands filed a petition of changed circumstances as required by the Compact. The Court of Appeals held that Section 177 of the Compact established the sole procedure for claiming additional funds for changed circumstances. It observed that “its sense of justice, … makes it difficult to turn away from a case of constitutional dimension… however the same sense of justice recognizes that this court cannot act without jurisdiction. In sum, this court cannot hear, let alone remedy, a wrong that is not within its power to adjudicate. The sweeping language of the Section 177 of the Agreement withdraws jurisdiction of the U.S. courts.”


S T U D Y T A S K 2

The Compacts and subsidiary agreements define very much the relationships of the U.S. with the freely associated states. Constitutional authority has been limited at times by the Compact. In Samuel vs. Pryor, 5 FSM Intrm. 91 (Pon. 1991) the FSM plaintiff claimed that immunity of U.S. govt. agency and its personnel under a subsidiary agreement violated procedural due process under the FSM constitution. The Court therefore “concludes that there is a rational basis, linked to the legitimate governmental purposes of increasing the availability of health care services, for providing immunity, shielding United States Public Health Service physicians from being sued by their patients.” The agreement that provided immunity to U.S. health workers was not in violation of the plaintiff's rights of due process, according to the FSM Supreme Court. Each of the three Compacts provide for a bilateral dispute mechanism on issue of interpreting the Compact. All three Compacts limit the jurisdiction of courts over many matters within the scope of the agreement.

What was the ruling in Semens v. Continental Airlines?

To what extent will the courts of the three freely associated states accept the authority of U.S. case law? How do their Constitutions establish “customary law” as a source of law? What might the level of proof be for establishing “customary law”.

Why didn’t the Court of Appeals in Bikini Islanders v. U.S. accept jurisdiction? What if there had been no Compact? Would the Court have accepted jurisdiction?

Overs eas “F lag Ter r i to r ie s” - Sa moa , Commonwea l th o f Nor thern Mar iana I s lands and Guam

Three Degrees of Limited Self-Goverance

The three Pacific territories of American Samoa, Guam and the Commonwealth of the Mariana Islands are three overseas territories of the United States. Each of these territories has a remarkable, unique history. Each also now has a distinct relationship with the U.S. as “self-governing” territories and each arrived at that status on separate paths and have distinct degrees of “self-government.” Guam was ceded to the United States by Treaty (see Treaty) at the end of the Spanish-American War in 1898. Following the renunciation by Great Britain and


Germany of their claims to what is now American Samoa and the cession by the Samoan chiefs to the United States of these islands, the Congress, in 1929, ratified the instruments ceding the islands to the United States. (see Cession Agreement, 1900) The United States was responsible for administering the Northern Mariana Islands after World War II as part of the TTPI. Ultimately, a covenant between the United States and the Northern Marianas established the islands as a commonwealth under the sovereignty of the United States. The people of Guam and CNMI are automatically accorded U.S. citizenship through Guam’s Organic Act and the CNMI’s Covenant. The U.S. Congress has not passed legislation (an organic act) providing the people of American Samoa with citizenship. They are consider U.S. nationals and are eligible to become naturalized citizens. U.S. law makes a distinction between “citizenship” and “nationality” – all U.S. citizens are U.S. nationals, but some U.S. nationals are not U.S. citizens. In Title 8 of the U.S. Code, the term “national of the United States” is defined as a person who, though not a citizen of the United States, owes permanent allegiance to the United States [8USC § 1101(a)(22)]. A person born in an “outlying possession” of the U.S. is a U.S. national, but not a U.S. citizen [8USC § 1408] and the term “outlying possessions of the United States” means American Samoa and Swains Island according to 8USC Sec. 1101(a)(29). Political Status - All three territories are considered “unincorporated” territories. Unincorporated means that not all provisions of the U.S. Constitution apply. Two of the three are also called “organized” territories meaning that the Congress has not provided an “organic act”, as in the case of Guam or, as in the case of CNMI, as negotiated Covenant. An organic act is used by Congress to confer powers of government upon a territory, providing for the organization of a territorial government and its relationship to the U.S. government. In the case of American Samoa, there is not an organic act. Rather, the Congress delegated the authority over American Samoa to the Secretary of Interior, who authorized the territory to draft a constitution, under which it currently operates. Unincorporated territories are administered by the U.S. Department of Interior, Office of Insular Affairs to varying degrees considering the provisions for self-governance. Typically the Department of Interior is not involved in day to day governance, but is more involved in acting as the intermediary in the delivery of services through other departments of the U.S. government. The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America uniquely defines the relationship between the Northern Mariana Islands and the United States, recognizing U.S. sovereignty but limiting, in some respects, applicability of federal law. The Commonwealth accordingly enjoys a greater degree of autonomy than most U.S. territories because it negotiated the Covenant that defines their relationship with the U.S.. The Covenant is codified at 48 U.S.C. Section 1801 and found at http://www.cnmilaw.org/covenant.htm The Covenant contains several provisions concerning Commonwealth law and governance, including provisions (Sections 201 and 203) obligating the people of the Northern Mariana Islands to adopt a Commonwealth Constitution providing


for a republican form of government and containing a bill of rights. Another significant Covenant provision (Section 805) requires the Commonwealth government to restrict acquisition of long-term interests in land to persons of Northern Mariana Islands descent. Covenant Section 105 provides that many provisions of the Covenant may be modified only with the joint consent of the U.S. and Commonwealth governments. Other provisions may be unilaterally amended by the U.S. government; as of November 1997, only one such amendment has been enacted--Public Law 98-213, § 9 (97 Stat. 1461), a 1983 measure revising Covenant Section 606(b), concerning Social Security taxes and benefits. Nature of the Territorial Government Each of the territories and commonwealths elects its own governor and its own legislature, and has a local court system. American Samoa and the Northern Mariana Islands each has its own constitution. The fundamental document for Guam is the "Organic Act," a law enacted by the U.S. Congress that establishes the basic framework of government for the territory. An Organic Act may be amended by the Congress without regard for a territory's wishes on the amendment. By virtue of its Covenant with the United States the CNMI has the most control over its affairs and protection against unilateral actions by the Department of Interior or the U.S. Congress. Guam - n 1950, the U.S. Government enacted the Guam Organic Act, conferring U.S. citizenship on the people of Guam and establishing local self-government. Under the Organic Act of 1950, the Secretary of the Interior assumed administrative responsibility for Guam, formerly vested in the Secretary of the Navy. Currently, Guam is an unincorporated, organized territory of the United States. It is "unincorporated" because not all provisions of the U.S. Constitution apply to the territory. Guam is an "organized" territory because the Congress provided the territory with an Organic Act in 1950 which organized the government much as a constitution would. The Guam Organic Act currently provides a republican form of government with locally-elected executive and legislative branches and an appointed judicial branch. Guam also has an elected representative to Congress. Seeking to improve its current political status, the Guam Commission on Self-Determination has drafted a proposed Guam Commonwealth Act, which was approved in two 1987 plebiscites. In February 1988, the document was submitted to the Congress for its consideration and was introduced in four consecutive sessions of Congress, but not approved by the U.S. Congress. The governmental structure is very much like a state government with a governor, legislature, and local judiciary. The executive branch is comprised of a popularly elected governor and lieutenant governor each serving a four-year term. The legislative branch is a 15 member unicameral legislature whose members are elected every two years. The judicial system includes a territorial court called the Superior Court, a Supreme Court and a U.S. District Court. The U.S. District Court handles U.S. constitutional questions and other Federal cases. Appeals are


channelled through the Ninth Circuit Court of Appeals in San Francisco and from there to the U.S. Supreme Court. Guam's Congressional Delegate possesses the same powers and privileges as Representatives from the several States, with the exception of voting on the House floor. CNMI - Under the Covenant, in general, U.S. Federal law applies to CNMI. However, the CNMI is outside the customs territory of the United States and, although the internal revenue code does apply in the form of a local income tax, the income tax system is largely locally determined. According to the Covenant, the federal minimum wage and federal immigration laws "will not apply to the Northern Mariana Islands except in the manner and to the extent made applicable to them by the Congress by law after termination of the Trusteeship Agreement:" The CNMI constitution provides for a governor, a lieutenant governor, a bicameral legislature (18 members in the House of Representatives and 9 members in the Senate), and a local court system including Superior and Supreme Courts. The U.S. District Court for the District of the Northern Mariana Islands operates in the CNMI. American Samoa is considered an unincorporated and unorganized territory of the United States. It is "unincorporated" because not all provisions of the U.S. Constitution apply to the territory. The Congress has not provided the territory with an organic act, which organizes the government much like a constitution would and it is therefore “unorganized.” Instead, the Congress gave plenary authority over the territory to the Secretary of the Interior, who in turn allowed American Samoans to draft their own constitution under which their government functions. That degree of independence could theoretically be withdrawn by the Secretary of the Interior, just as the U.S. Congress could rewrite Guam’s Organic Act without consultation. CNMI’s Covenant is similar to a treaty and its terms are protected from unilateral action by the U.S. government. The American Samoa Constitution provides for an elected governor, lieutenant governor, and legislature. The governor and lieutenant governor are elected for four years. The bicameral legislature of American Samoa, known as the Fono, is comprised of a Senate and House of Representatives. The Senate consists of 18 members who are chosen according to Samoan custom in each of the 14 political counties. Senators hold office for a four-year term, and representatives, for a two-year term. The House of Representatives consists of 20 members who are elected by popular vote. The legislature convenes for 45-day sessions twice yearly. The Chief Justice and the Associate Justices, who head the High Court of American Samoa, are appointed by the Secretary of the Interior from recommendations of the local Governor. The judiciary also consists of district and village courts. The judges for these courts are appointed by the Governor, subject to confirmation by the American Samoa Senate. The United States civil and criminal statutory and case law, augmented by local laws and regulations as enacted by Samoa legislature, constitute the body of law adjudicated in the courts. Unlike other U.S. territories, American Samoa does not have a Federal district court.


Judiciary and Law Judiciary - The judiciary in each of the territories is similar to a U.S. state court system. The differences between the courts mainly appear in the nature of the appeal process to higher U.S. federal courts. Only American Samoa is without a Federal District Court. Matters involving U.S. Federal Law are transferred to the District Court in Hawaii or the District of Columbia at considerable inconvenience to the parties. See History and Development of the Judicial Systems in American Samoa, CNMI and Guam, Pages 67-99, Government Accountability Office, Report O-08-655, June 2008. Application of U.S. Constitution – Territorial Clause and Insular Cases: The U.S. Constitution does not apply in its entirety to territories solely by virtue of the fact that those territories have come under the possession and control of the United States. Whether rights under the Constitution apply to a territory and, if so, to what extent depends essentially on either of two factors, according to a collection of fourteen U.S. Supreme Court decisions called the Insular Cases. (See Summary Of The “Insular Cases”) These cases were decided in the early part of the 20th century when the U.S. had considerable overseas territory including Cuba and the Philippines. The first factor is whether the right in question is considered to be “fundamental” or not; the second is whether the Congress has taken legislative action to extend the Constitution to the territory. In the Insular Case, the Supreme Court developed the idea that, without any action by the Congress, constitutional rights that are considered to be “fundamental” are available in all areas under the jurisdiction of the United States, but that other rights apply only when extended to such areas by law. The Court pointed out that even though some of these fundamental rights may not be expressly stated in the Constitution, it would be wholly inconsistent with the principles that underlie the U.S. government not to preserve them in the territories. Thus, in one of the Insular Cases, Downes v. Bidwell, the Court said that the Congress, in creating governments for the territories, could not do so in such a way as to abridge fundamental rights. The question whether particular rights are fundamental has been answered only as specific cases come before the Supreme Court. The Court has identified the Fifth Amendment privilege against self-incrimination as a fundamental right. On the other hand, the Court has said that the Sixth Amendment right to trial by jury and the Fifth Amendment right to indictment by a grand jury “are not fundamental in their nature, but concern merely a method of procedure . . . .” (Dorr v. United States, 195 U.S. 138, 49 L.Ed. 128, 24 S.Ct. 808 (1904) Under the Insular Cases and subsequent decisions, rights other than fundamental rights, even though they may be stated in the Constitution, do not apply to the territories or possessions unless the Congress makes them applicable by legislation. The Congress can by law extend the coverage of the Constitution in part or in its entirety to a territory or possession, and has done so with respect to some territories. In the absence of such congressional action, however, only fundamental rights apply.


The Insular Cases use the term “incorporated” to distinguish territories where all constitutional rights apply, because a statute has made them applicable, from “unincorporated” territories, where fundamental rights apply as a matter of law, but other constitutional rights are not available. Under what is commonly known as the Territorial Clause of the Constitution, the Congress has the “power to make all needful Rules and Regulations respecting the Territory or other Property” of the United States. (U.S. Const. Art. IV, § 3, cl. 2) Pursuant to this power, and in response to desire by people of the territories for greater political autonomy, the Congress has expanded self-government in the territories. This Clause provided the authority for the United States to negotiations with the Northern Marianas about the terms of the Covenant to Establish a Commonwealth of the Northern Mariana Islands. One of your focus cases is U.S. ex rel. Richards v. De Leon Guerrero, 4 F.3d 749 (C.A.9 (N.Mariana Islands), 1993) shows the strength of a territory’s negotiated governance agreement with the U.S. In that decision the Court of Appeals for the Ninth Circuit discussed the relationship between the United States and the CNMI in the context of the applicability of the CNMI Covenant and the Territorial Clause. A federal district court had enforced a subpoena of the Inspector General of the Department of the Interior, pursuant to statutory audit authority, for records related to the CNMI’s administration of its income tax system. On appeal, the court of appeals agreed that the subpoena was valid, but rejected the Inspector General’s reliance on the Territorial Clause as support for the federal audit. The court emphasized that, although the Territorial Clause applies to the CNMI, it is the provisions of the Covenant, as approved by the Congress, that “define the boundaries” of the relationship between the United States and the CNMI: “The applicability of the Territorial Clause to the CNMI . . . is not dispositive of this dispute. Even if the Territorial Clause provides the constitutional basis for the Congress’ legislative authority in the Commonwealth, it is solely by the Covenant that we measure the limits of Congress’ legislative power.” An earlier case also demonstrates the strength of the Covenant on matters of criminal law and the application of the U.S. Constitution. In Commonwealth of Com. of Northern Mariana Islands v. Atalig , 723 F.2d 682 (C.A.9 (N.Mariana Islands), 1984) the defendant had been convicted in a CNMI trial court of possession of marijuana in violation of a local statute. Because CNMI law only provides the right to a jury in a criminal case for offenses punishable by more than five years imprisonment or a $2,000 fine and because Atalig's charge only involved a maximum penalty of one year in prison, a $1000 fine, or both, Atalig did not receive a jury trial. The Appellate Division of the District Court for the Northern Mariana Islands, which at that time served as the intermediate court of appeal between the then Commonwealth Trial Court and the U.S. Court of Appeals for the Ninth Circuit, reversed the conviction, holding that Atalig was denied his right to trial by jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The court also held that Covenant § 5018 and the local statutory provision limiting the right to a criminal jury trial were unconstitutional to the extent they denied the right to a jury trial. The Ninth Circuit, faced with the issue of whether the limitation on trial by jury violated the


Constitution notwithstanding the Covenant, reversed the Appellate Division, based upon the holdings of the Insular Cases. The Insular Cases held, among other things, that the right to a jury trial as guaranteed by the Sixth Amendment and the right to grand jury indictment as guaranteed by the Fifth Amendment to the United States Constitution are not "fundamental rights," and they do not apply automatically in unincorporated territories. The Atalig court found that the Appellate Division had incorrectly relied upon another Supreme Court case (Duncan v Louisiana), which held that the right to a criminal jury trial in state prosecutions for serious criminal offenses is a fundamental right incorporated by the Fourteenth Amendment Due Process Clause. The court stated that the Appellate Division had assumed that this "fundamental right" applied in unincorporated territories, but that Duncan could be read only as adopting a new definition of fundamental rights for the purpose of applying the Bill of Rights to the states. The court further explained that the purpose of the doctrine of territorial incorporation is "to limit the power of Congress to administer territories under Article IV of the Constitution." The court then turned to the method of identifying "fundamental rights" for purposes of territorial incorporation as set forth in the Insular Cases and instructed courts grappling with the issue to consider "whether the asserted right was one of `those fundamental limitations in favour of personal rights' which are `the basis of all free government.'" (quoting Dorr v. United States, on of the insular cases).The court explained that, by this method, Congress was given the most flexibility in fulfilling its mandate under the Territorial Clause, and the imposition of unfamiliar and possibly unwanted rules on territorial cultures would be avoided. Therefore, the court concluded that Covenant Section 501 and the local law limitation on right to a criminal jury trial were not unconstitutional concluding as follows.

We believe the NMI's present rules regulating jury trials can easily fit within the reach of the Court's imagination. The Insular Cases acknowledged that traditional Anglo-American procedures such as jury trial might be inappropriate in territories having cultures, traditions and institutions different from our own. In identifying "fundamental rights" for purposes of territorial incorporation, the Court considered whether the asserted right was one of "those fundamental limitations in favour of personal rights" which are "the basis of all free government." This approach allowed the Court to afford Congress flexibility in administering offshore territories and to avoid imposition of the jury system on peoples unaccustomed to common law traditions. To employ Duncan's approach would deprive Congress of that flexibility. Accommodation of the particular social and cultural conditions of areas such as the NMI would be difficult if not impossible.

The Circuit Court in De Leon Guerrero demonstrates deference to the terms of Covenant where there is a potential conflict with federal law. In Atalig the Circuit Court goes to considerable lengths to avoid a finding that a “fundamental rights” exists for a jury trial in a territory. It is perhaps unusual because the decision purports a cultural sensitivity citing as authority an “insular case” decided more than one-hundred years before at a time better known for imperialism.


The flip side for a territory of the fundamental rights analysis is the consequence when a U.S. court clearly identifies that a “fundamental right” is to be applied to a territory against its wishes. As the above cases illustrate, territories with a negotiated agreement or covenant, such as CNMI, look to that agreement for defining their relationship with the U.S. government, Congress cannot apply legislation that goes outside of that covenant. In the case of Guam, it has an organic act that can be modified by Congress at will. In another focus case, Guam Society of Obstetricians and Gynaecologists v. Ada, 962 F.2d 1366 (C.A.9 (Guam), 1992) the Court of Appeals considered Guam's Public Law 20-134 that prohibited most types of abortion. The territorial government argued that the Supreme Court’s precedent in Roe v. Wade, permitting abortion in most circumstances, did not apply to Guam. It did not apply, argued Guam, because the 14th Amendment’s Due Process and “Liberty” clauses did not apply because Guam is not a state. The Court of Appeals found that that Organic Act of Guam had been amended by the U.S. Congress to specifically incorporate the 14th Amendment Due Process Clause and therefore not a defence to application of the Constitution. In this case the Guam abortion statute was declared unconstitutional. Land and the Equal Protection Clause - The Equal Protection Clause of the Fourteenth Amendment requires that people under like circumstances be given the same protection of the law in the enjoyment of personal rights, liberties, and property. To preserve local culture in American Samoa and the Northern Marianas, land ownership is restricted, by the local constitutions (as well as the Marianas Covenant), to people of Samoan or Northern Marianas descent. This raises a question of whether such restrictions are consistent with the Equal Protection Clause of the Fourteenth Amendment. The American Samoa High Court (the highest court in American Samoa) has stated that the Equal Protection Clause applies in American Samoa. While recognizing the applicability of the Equal Protection Clause the Courts have adapted considerable flexibility to ensure that restrictions on land are not upset where devised to protect a territories cultural resources and values. The American Samoa High Court has held that the land ownership restriction does not violate the Equal Protection Clause. With regard to the Northern Marianas, the Ninth Circuit Court of Appeals Wabol v. Villacrusis, 958 F.2d 1450 (C.A.9 (N.Mariana Islands), 1992) held that land ownership restrictions are not subject to the Equal Protection Clause. (See CNMI Constitution, Article 12, Restrictions on Alienation of Land)

The Circuit Court in Wabol recognized an international application of the Equal Protection Clause that is more liberal and flexible when applied in the context of a territory with a diverse culture.

We think it clear that interposing this constitutional provision would be both impractical and anomalous in this setting. Absent the alienation restriction, the political union would not be possible. Thus, application of the constitutional right could ultimately frustrate the mutual interests that


led to the Covenant. It would also hamper the United States' ability to form political alliances and acquire necessary military outposts. For the NMI people, the equalization of access would be a hollow victory if it led to the loss of their land, their cultural and social identity, and the benefits of United States sovereignty. It would truly be anomalous to construe the equal protection clause to force the United States to break its pledge to preserve and protect NMI culture and property. The Bill of Rights was not intended to interfere with the performance of our international obligations. Nor was it intended to operate as a genocide pact for diverse native cultures. Its bold purpose was to protect minority rights, not to enforce homogeneity. Where land is so scarce, so precious, and so vulnerable to economic predation, it is understandable that the islanders' vision does not precisely coincide with mainland attitudes toward property and our commitment to the ideal of equal opportunity in its acquisition. We cannot say that this particular aspect of equality is fundamental in the international sense. It therefore does not apply ex proprio vigore to the Commonwealth. Accordingly, Congress acted within its power in enacting sections 501(b) and 805 of the Covenant, and Article XII is not subject to equal protection attack. We hold that the appellate division of the district court for the Northern Mariana Islands did not err in upholding Article XII of the Commonwealth Constitution against PGI's constitutional challenge.

Protection of Tradition and Custom Guam’s Organic Act and statutes are very weak in terms of protecting customary practices and traditional land practices. This stems from the unilateral nature of Guam’s Organic Act, a diluted population of Chamorro and the extensive military presence. From 1930 afterwards the acquisition of local lands in Guam by the U.S. government for military purposes was expedited. Over 40 percent of all land is for U.S. military purposes. A bit more than forty percent of the population of 150,000 is native Chamorro. The I Liheslaturan Guahan, the unicameral legislature of Guam, has created three commissions to address issues of land and self-determination. Chapter 80, of the Law of Guam, provides for the Ancestral Lands Commission, which is an institutional attempt to reclaim ancestral lands. The second commission is the Commission for the Self-Determination of the People of Guam and a third is the Commission on Decolonization for the Implementation and Exercise of Chamorro Self Determination. Each of these commissions has mandates to reclaim control over the resources and destiny of Guam. It is attempting to do so but is playing on an unlevel field because of the Organic Act. The huge military interest in Guam by the U.S. has undoubtedly slowed the process of changing the political relationship with the U.S. The statutory provisions for these commissions may be found at http://www.justice.gov.gu/CompilerofLaws/GCA/title1.html) American Samoa and CNMI both have provisions in their Constitution and Covenant that integrate traditional practices into an American model of democracy. As discussed earlier the CNMI has provisions in its Covenant and Constitution limiting alienation of land. Of the three territories, American Samoa


S T U D Y T A S K 3

has made the profound efforts to protect its Fa’a Samoa. The Bill of Rights of the American Samoa Constitution, at Section 3, states:

Policy protective legislation. It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two successive legislatures by a two thirds vote of the entire membership of each house and by the Governor.

Traditional leadership has also been integrated into Legislative functions. Article 2, Section 3, Qualifications of members provides that a Senator shall “be the registered Matai of a Samoan family who fulfils his obligations as required by Samoan custom in the county from which he is elected.” The House of Representatives does not require registration as a Matai in order to hold office.

What is the Territorial Clause?

What is the premise of the Insular Cases and what has been the impact of these cases on the legal system of Pacific Island Flag Territories?

What was the holding in U.S. ex rel. Richards v. De Leon Guerrero? What does it demonstrate in terms of the relationship of CNMI law and U.S. law? Would the Court of ruled the same way if the matter involved Guam or American Samoa?

With regard to the Northern Marianas, the Ninth Circuit Court of Appeals Wabol v. Villacrusis held that land ownership restrictions are not subject to the Equal Protection Clause. What was the standard that the Court used to make this determination?


Rev iew Quest ions

1. Is an adversarial judicial system of the U.S. that was introduced in Micronesia consistent with the Micronesian way of life? Explain.

2. In Semen’s v. Continental Air Lines the FSM Court stated the following.

The framers of the Constitution had learned from experience that judges trained in other places might often assume that what is good for their home states in the United States is also the right approach for Micronesians. The convention anticipated that judges in the new constitutional court system would find it necessary to draw on the experience and decisions of courts in other nations to develop a common law of the Federated States of Micronesia. They recognized the desirability of such a search and amended the earlier draft of the provision to be sure to leave it open to the constitutional courts to draw principles from other nations. Nonetheless, the Judicial Guidance Clause manifests a strong and deeply felt sense that judges functioning under the Constitution are not to consider the relationship between the common law of the United States and the legal system here in the same way that relationship was viewed by the Trust Territory High Court. The clause places affirmative obligations upon an FSM Supreme Court justice in every case that comes before this Court. Our decision making must be grounded upon a "new basis which will allow the consideration of the pertinent aspects of Micronesian society and culture."

Put yourself in the shoes of an FSM judge. How would you balance a U.S. source of law with “… the pertinent aspects of Micronesian society and culture”? Would it matter what type of matter was before the court?

3. Contrast the conclusions of Ankush Sharma and Edward King about the compatibility of “customary law” and “received law” in respect to the FSM Court decision in Tammed. Do you feel that the observations of the commentators are “correct”? Is there a way to reconcile their conclusions? (See journal articles in readings list)

4. In Guam Society of Obstetricians and Gynaecologists v. Ada, the U.S. Court of Appeals found the Guam statue on abortion to be unconstitutional. What if the Court was considering the same type of law, but this time it is a law in CNMI. The law is exactly the same as the Guam statute. Would the Court rule the same way on the CNMI law as it did with the Guam law on abortion? What if CNMI argues precedent of Com. of Northern Mariana Islands v. Atalig or that their Covenant does not integrate the Supreme Court precedent of Row v. Wade? Would that make a difference?


Seminar Top ic Topic: A political status and jurisprudence that promotes and protects the cultural and social norms, values and institutions of American Samoa Hypothetical: It is the future and an independence movement has grown in American Samoa after the U.S. Court of Appeals for the 9th Circuit has ruled in a series of harsh decisions that certain provisions of the U.S. Constitution prevented certain traditions including the implied and express authority given to the Mata including the requirement of being a Matai to become a senator. Alienation of land restrictions is held to be unconstitutional. The very pro-status quo sentiment of American Samoans has turned abruptly pro-independence. The governor approves a Convention to Determine the Destiny of America Samoa. The recommendation of the convention will be presented to the people of American Samoa in a plebiscite. Assignment: Specifically you are told whatever model is chosen it is paramount that it must protect and preserve Fa’a Samoa and the traditional approaches in terms of land tenure and alienation of land. Of course the anger of American Samoans about the decisions by the U.S. Court of Appeals is tempered by the realization that their islands receive considerable economic benefit and they can freely travel and work in the United States. You are legal counsel for the Convention. You are asked to develop an outline of what you view as the best option for the political and legal system that will promote and protect Fa’asamoa while providing government services, dispensing justice and meeting international human right standards. You are to make a five minute presentation to the Executive Committee summarizing and justifying your outline for a future political status and how the legal system in that system will prevent the judicial intrusion that was seen in the recent Circuit Court of appeals decisions. You can be as creative as you wish in your recommendations. You can choose to recommend any type of political status, and choose from the status quo or borrow from the models of other nations or develop an entirely original system. What ever you recommend must be justified. Write your outline of no more than three pages and be prepared to present it before the Executive Committee at this week’s seminar? In preparation for this assignment you should read and be prepared to discuss the following two documents. Curfews, Culture and Custom in America Samoa, Asian-Pacific Law & Policy Journal, Daniel Hall (2002) Resisting Temptation in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa, Jeffrey B. Teichert