Constitutuional Law Notes: 07/28/10

JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer

I. Economics
a. Four Periods of Economic Development
i. Marshall Period 1789-1835
1. There is a national economy and as such it is best to be regulated controlled, and it’s parameters enlarged by the national government. Congressional power comprehends all aspects of commercial life.” it is plenary, absolute, and it is complete power. It allows the legislature, to prescribe the rules in which commerce would be governed. Its exercise, would supersede any state attempts to regulate commerce. It included the regulation of economic activity even if conducted wholly within one state.
a. Taney period was possible because Marshall left out the word exclusive. The battle royal begins. The court is part of the national government and it takes sides.
ii. Taney Period 1835-1865
1. Taney Period: Taney is states’ rightist and argument for dual federalism reflects that. He said that this nation was one of constituently equal state. In Taney’s mind, it is “we the states” rather than “we the people.” Call him Lockian to the extreme. Believed in compact theory, but compact of states, not people.
a. What rights did the states retain? What’s left over goes to federal or central govt. Sovereignty has to be somewhere.
b. Dual federalism turns history upside down to the articles of confederation. Taney begins to allow state to regulate “intra state” commerce.
c. There’s very little of what we call “stream of commerce” that federal government can actually regulate.
c. Industrial Growth 1865-1932
i. Corporate America goes unregulated. Sugar Trust Case: 1890, first comprehensive anti-trust act. First attempt at national regulation on mega-scale. Things like monopolies would be questioned seriously. BC company is sugar trust monopoly, and Supreme Court rules that act doesn’t apply to sugar monopoly. Years later, rules that meat company out of Chicago does apply to the Sherman act.
ii. Cooley v. Port of Port Wardens: In the absence of national legislation, the states may temporarily regulate commerce until the national government properly enters the field. Under supremacy clause, national supremacy supersedes state supremacy. If we’re talking about something that requires national regulation and the national government is regulating, than an area of life goes unregulated.
iii. It is the court that will determine the legality of action taken by government and by the states. Set itself up as group of platonic guardians.
i. Think about what the government does: it’s main contribution to the economy during the latter part of the 19th century: building of the transcontinental railroads. Laissez-faire (Let alone) Did the government let the economy alone? Do you think these railroads would have been built if money hadn’t been given?
iv. EC Knight- government using Sherman act to pull back monopoly. Supreme Court had problems here. Is it the physical trip across numerous state lines?
i. When an issue comes up, major issues will remained unresolved. If production of something takes place within one state, it can’t be regulated as interstate commerce.
ii. The minute the court recognizes national economy, congress can regulate the national economy. It doesn’t matter if goods are manufactured with the intention on going to another state, it only becomes interstate commerce when it begins its journey in interstate commerce.
iii. According to the courts, the Sherman Act didn’t address monopolies or this issue. It was just to restrain states from forming together to make monopolies.
d. New Deal 1933-N/A
i. 1933-1935 Relief Acts were completely upheld by the Supreme Court.
i. 1935 – Unconstitutional delegation of legislative power to the executive finally forced the courts to rule unconstitutional.
ii. Railroad Retirement Board v. Alton Railroad Company (1935) – the idea was that the company challenged the board that thought it would be appropriate for Railroad workers to put them under retirement funds. Because this is just a beneficiary to the worker, it’s not commerce at all! Finally there is something that you can’t rule away with the Commerce Clause.
iii. Checter Poultry v. U.S. (Hot Chicken Case) – the NIRA is declared unconstitutional.

Two Economic Systems – Socialism for the rich and Capitalism for everybody else.

Note: Primaries were instituted by the time Regan was in business because it is such a big business! When only state legislatures determine the candidates, it’s such a lack of revenue.

II. Property
a. From the genesis of this nation, property defined everything.
b. 1654 – Harrington wrote a book, The Commonwealth of Oceana, mostly talking about New England. He sets up a standard as to what a government from scratch should be doing in order to have some chance at a successful experiment.
i. If you’re going to create a democratic form, understand that you need to base it on a long term stability guarantee. Democracy on its own is not a stable government.
ii. His argument is to look around you, at the things that exist, and ask yourself, of all of the things that exist, what is the single most stable quality? By stable, Harrington is the one that is the most acceptable, appreciated, and is desirable to protect. PRIVATE PROPERTY.
1. Build democracy on private property.
III. Moarhead v. New York (1936) – five justices strike down the laws that establish the machinery to establish the wages for women and children in all industries. You can’t regulate industry in America!? Our freedom to establish contracts is unconstitutional by the due process clause.
IV. Heart of Atlanta Hotel v. -

Cuts off right there...