We The People, session iv, Interpretation

The U.S. Constitutionsession iv

The Interpretation (C3)

major points of this session

Federalist Papers Marbury v. Madison, 1803

Dred Scott v. Sanford, 1857 Industrial America

The American Century

TheFederalist

Papers

Once upon a time there was a tribe of people living in a faraway land. Whenever they had a difficult question to decide about how to proceed, they would summon nine witch doctors in long black robes.

Original Intent--A Parable

The Richest Mine for “Original Intent”

a series of 85 articles promoting ratification of the Constitution by the New York Convention

published anonymously under the name of Publius, one of four founders of the Roman republic

The Federalistserial essays in

The Independent Journal &

The New York Packet

Oct, 1787-Aug, 1788




the authors were Hamilton(51 articles), Madison (26) and John Jay (5); 2 articles were the result of a collaboration between Hamilton and Madison



The New York Packet

Oct, 1787-Aug, 1788




the authors were Hamilton(51 articles), Madison (26) and John Jay (5); 2 articles were the result of a collaboration between Hamilton and Madison

1788-this compilation was published in two volumes

from the beginning, federal court opinions have quoted these essays as proof of the founders’ intent



The New York Packet

Oct, 1787-Aug, 1788

Though the authors of The Federalist Papers foremost wished to influence the vote in favor of ratifying the Constitution, in Federalist No 1 they explicitly set that debate in broader political terms:

According to historian Richard B. Morris, they are an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer."

Wikipedia

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.

THE FEDERALIST is the great American contribution to literature on constitutional government. Thomas Jefferson proclaimed it "the best commentary on the principles of government which was ever written." In Cohens v. Virginia (1821), Chief Justice John Marshall wrote: "It (THE FEDERALIST) is a complete commentary on our Constitution, and it is appealed to by all parties in the questions to which that instrument gave birth." From the 1790s until today, lawyers, judges, politicians, and scholars have used ideas of THE FEDERALIST to guide their decisions about constitutional issues.

John J. Patrick, Teaching The Federalist Papers, ERIC Clearinghouse, 1988

The authors of THE FEDERALIST had varying and sometimes clashing ideas about government, but they agreed strongly on certain fundamental ideas: republicanism, federalism, separation of powers, and free government.

republicanism-”A republican government is one "in which the scheme of representation takes place" (No. 10). It is based on the consent of the governed because power is delegated to a small number of citizens who are elected by the rest

federalism-In a federal republic, power is divided vertically between a general (federal) government and several state governments. Two levels of government, each supreme in its own sphere, can exercise powers separately and directly on the people. State governments can neither ignore nor contradict federal statutes that conform to the supreme law, the Constitution. This conception of federalism departed from traditional forms, known today as confederations, in which states retained full sovereignty over their internal affairs

separation of powers-"The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny." (No. 47)

free government-Republicanism, federalism, and separation of powers are characteristics of free government. According to THE FEDERALIST, free government is popular government limited by law to protect the security, liberty, and property of individuals. (cont.)

Ibid.

The authors of THE FEDERALIST had varying and sometimes clashing ideas about government, but they agreed strongly on certain fundamental ideas: republicanism, federalism, separation of powers, and free government.

free government-Republicanism, federalism, and separation of powers are characteristics of free government. According to THE FEDERALIST, free government is popular government limited by law to protect the security, liberty, and property of individuals. A free government is powerful enough to provide protection against external and internal threats and limited enough to prevent tyranny in any form. In particular, free government is designed to guard against the most insidious danger of government by the people--the tyranny of the many over the few. Of course, it was mainly the "propertied few" that "Publius" had in mind, but this principle applies equally to constitutional protection of religious, ethnic, racial or other minorities against oppression by the majority

Ibid.

highlights among the essays:Federalist No. 10-Madison discusses the means of preventing rule by majority faction and advocates a large, commercial republic. It is generally regarded as the most important of the 85 articles

Federalist No. 14-compliments it. Here he takes the measure of the United States, declares it appropriate for an extended republic, and concludes with a memorable defense of the constitutional and political creativity of the Federal Convention

Federalist No. 39-Madison makes a clear exposition of what has come to be called federalism, or the division of powers between national and state govts

Federalist No. 51-here he distills the arguments for checks and balances

Federalist No. 78-Hamilton lays the groundwork for the doctrine of judicial review by federal courts of federal legislation or executive acts

adapted from Wikipedia

Marbury v. Madison1803

Nowhere in the original document ( C2) is the power to interpret the meaning of its language assigned to a particular federal body. The doctrine of judicial review which assigns this non delegated power to the federal courts derives from the precedent of Marbury v Madison. Before we look at this case, a review of certain basic legal concepts and terms is in order.

jbp

Judicial review is one of the main characteristics of government in the federal republic of the United States and other democratically elected governments. It can be understood in the context of two distinct—but parallel—legal systems (civil law and common law), and also by two distinct theories on democracy and how a government should be set up (the ideas of legislative supremacy and separation of powers). First, two distinct legal systems, civil law and common law, have different views about judicial review:

• Common-law judges are seen as sources of law, capable of creating new legal rules, and also capable of rejecting legal rules that are no longer valid. [supports judicial review]

• In the civil-law tradition judges are seen as those who apply the law, with no power to create (or destroy) legal rules. [hence, no judicial review-jbp]

Wikipedia

Law-101

Civil Law vs Common Law Nations

Wikipedia

Civil Law vs Common Law Nations

Wikipedia

What explains thesetwo anomalies in North America?

Types of Courts

court definitiontrial court of general jurisdiction* most cases will begin here, either

civil or criminal

appellatehears cases on appeal from the

court of the first instance

U.S. Supreme Court(USSC)

has both original and appellate jurisdiction

U.S. Court of AppealsU.S. District Court

circuit courts in ten regions89 districts in the 50 states

________* the power to hear and determine a case

As the #6 indicates, Cincinnati is both the

seat of the Sixth Circuit and one of three seats of the

District of Southern Ohio. The Sixth

Circuit includes 4 states and 9 districts.

Types of Courts

court definitiontrial court of general jurisdiction most cases will begin here, either

civil or criminal

appellatehears cases on appeal from the

court of the first instance

U.S. Supreme Court(USSC)

has both original and appellate jurisdiction

U.S. Court of AppealsU.S. District Court

circuit courts in nine regions89 districts in the 50 states

trial courts of limited jurisdictionstate courts such as juvenile,

probate, family: federal such asUS Tax Court, Bankruptcy Courts

How do civil and criminal cases compare?civil criminal

parties private individuals or government

society vs offenders

description torts (suits) A/s sues B/s

prosecution--the state vs John Doe/s

originplaintiff claims that

defendant has failed to carry out a duty owed

a grand jury has handed down an

indictment

jury?some instances,

most decided by judgealmost always

standard of proof“preponderance of the

evidence”“beyond a reasonable

doubt”

outcomeequity: defendant pays

damages/must do or not do something

justice: defendant does time/pays fine/

makes restitution

stare decisisfrom Roman law, stare decisis et non quieta movere ( to stand by decisions and not disturb the undisturbed). Courts should generally abide by precedent and not disturb settled matters. This creates what is known as “case law,” a third category after statute law (created by legislatures) and administrative law (created by regulatory agencies).

The basic idea is that if law is often changing, then it becomes uncertain. People should know what the law is.

There are, however, famous examples where precedent is overturned. In Brown v Board of Education, 347 U.S. 483 (1954), the USSC reversed the doctrine that “separate but equal” did not violate the constitutional protection of AM XIV’s “equal protection” clause, Plessey (1896).

jbp

After this simplified grounding in legal concepts and court structure, we now take up the case which established the precedent for judicial review.

This is the means by which C3 is legally defined.

In the casebook method, law students read decisions. These (1) state the facts, then (2) the legal issue/s, finally (3) the decision and its supporting logic.

We shall follow this method.

jbp

Marbury: the facts

In the savage election of 1800, Democratic-Republican Jefferson• defeated Federalist President John Adams.• During the lame-duck period Adams and the Federalist Congress passed the Judiciary Act of 1801. It created many new district courts and federal justices of the peace, which Adams filled with Federalist appointments to stymie the incoming administration. He also appointed his Secretary of State, John Marshall,• as Chief Justice of the USSC. March 3, 1801, on his last night as Secretary of State, Marshall was busy signing and sealing the commissions for these appointees, the infamous “Midnight Judges,” as the Jeffersonians called them. One was William Marbury,• appointed JP for DC. The commissions for some of the judges, including Marbury’s, were not delivered before Jefferson took office the next day.

jbp

Marbury: the facts In the savage election of 1800, Democratic-Republican Jefferson• defeated Federalist President John Adams.• During the lame-duck period Adams and the Federalist Congress passed the Judiciary Act of 1801. It created many new district courts and federal justices of the peace, which Adams filled with Federalist appointments to stymie the incoming administration. He also appointed his Secretary of State, John Marshall,• as Chief Justice of the USSC. March 3, 1801, on his last night as Secretary of State, Marshall was busy signing and sealing the commissions for these appointees, the infamous “Midnight Judges,” as the Jeffersonians called them. One was William Marbury,• appointed JP for DC. The commissions for some of the judges, including Marbury’s, were not delivered before Jefferson took office the next day. He instructed his Secretary of State, Madison,• to not deliver the Federalist commissions. The new Dem-Republican 7th Congress repealed the Judiciary Act of ’01 and passed the Judiciary Act of 1802, canceling the extra slots. Marbury filed suit in the USSC seeking a writ of mandamus.

jbp

writ of mandamus

a judicial remedy — in the form of an order from a superior court, to any government subordinate court, corporation, or public authority — to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing) — and which is in the nature of public duty, and in certain cases one of a statutory duty…. The applicant pleading for the writ of mandamus to be enforced should be able to show that he or she has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary.

Wikipedia

Marbury: the issues

• did Marbury have a right to the commission?

• do the laws of the country give Marbury a legal remedy?

• is asking the USSC for a writ of mandamus the correct

legal remedy?

Marbury: the decision• yes--failure to deliver the commission was “violative of a vested legal right”• yes--"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."• no--the Judiciary Act of 1789 which gave the USSC original jurisdiction in cases of writs of mandamus conflicted with III.2.2:

and thus was unconstitutional.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction...

The beauty of this decision is that it left the Democratic-Republicans in the wrong, but gave them no way to challenge the authority of the Marshall Court.

Marbury never got his commission, but the federal courts got the power of judicial review.

jbp

Dred Scott v Sanford, 1857

Dred Scott v Sanford, 1857

The years after Marbury saw a gradual expansion of judicial review. Little v. Barreme, 6 U.S. 170 (1804) declared an action by President Adams during the Quasi war with France to be unconstitutional. In 1810 the Court set aside a state law in Fletcher v. Peck. In Martin v. Hunter's Lessee, (1816), Marshall held that the USSC power of judicial review extended to the decisions of state courts. But it would be more than fifty years before judicial review would find another act of Congress unconstitutional.

The great conflict of antebellum America was sectionalism, North, South and West. The intensity of this political rivalry was the product of the South’s “peculiar institution,’ slavery.

Three times disunion threatened; the Missouri question in 1820; the nullification controversy, 1828-33; and issues arising from the Mexican War in 1850. Three times the North and South backed down.

jbp

The Compromise of 1850

the Mexican Cession of 1848• had created “bigger pens into which to cram slaves”--James Russell Lowell. The California gold strike had created tremendous interest in statehood (slave or free) in the new territory:

South wants Southern CA as a slave state

Texas claims territory as far as the Rio Grande

New Mexico resists Texas, applies to be a free state

Texas takes El Paso, Feb 1850

Mormon pioneers apply to become State of Deseret

territorial results of the Compromise:

CA admitted undivided as a free state, denying Southern expansion to the Pacific

TX traded some territorial claims for debt relief

NM and Deseret are denied statehood, become The NM and UT territory with slavery left to the portentous doctrine of popular sovereignty

The Compromise of 1850--Other terms

the territorial terms clearly favored the anti-slavery North

to sweeten the pill for the South, the fatal Fugitive Slave Act was included:

the USSC had previously weakened the Fugitive Slave Act of 1793

the 1850 act created a fine for any law enforcement official who didn’t aid in recapturing runaway “property.” $1,000 (app. $28,000 n today’s dollars). The official who aided in recapture received a bonus and/or promotion

any person aiding runaways was subject to six months’ imprisonment and the above fine

the owner’s affidavit as to his “property”was all the proof necessary. There was no trial

a further concession was the preservation of slavery (but not the slave trade) in the nation’s capital

the reaction to this pro-slavery law was a wave of violent “direct action” by Northern abolitionists

The years after Marbury saw a gradual expansion of judicial review. In 1810 the USSC set aside a state statute in Fletcher v. Peck. But it waited more than fifty years before declaring another act of Congress unconstitutional.

The great conflict of antebellum America was sectionalism, North, South and West. The intensity of this political rivalry was primarily the product of the South’s “peculiar institution”, slavery.

Three times disunion threatened; the Missouri question in 1820; the nullification controversy, 1828-33; and issues arising in 1850 from the Mexican War. Three times North and South backed down.

But the last decade of “peace” saw a failure to compromise on both sides.

jbp

Green areas represent the potential lands open to slavery under the new doctrine of popular sovereignty

distributed in 1854

The Kansas-Nebraska Act of 1854opened new lands for settlement and had the effect of repealing the Missouri Compromise of 1820

it had admitted MO as a slave state but set its southern border 36º30’ as the northern boundary of future slave state expansion

Democratic Senator Steven Douglas• authored this bill to make possible the settlement of new farmlands and a Midwestern Transcontinental Railroad

he hoped to duck the slavery controversy by leaving it up to the settlers to decide-- “popular sovereignty”

The Kansas-Nebraska Act of 1854opened new lands for settlement and had the effect of repealing the Missouri Compromise of 1820




the “Slavocracy” financed its settlers while the Abolitionists responded in kind. Rev. Lyman Beecher’s “bibles”

The Kansas-Nebraska Act of 1854

opened new lands for settlement and had the effect of repealing the Missouri Compromise of 1820




the “Slavocracy” financed its settlers while the Abolitionists responded in kind. Rev. Lyman Beecher’s “bibles”

1854-1861-”Bleeding Kansas”

The years after Marbury saw a gradual expansion of judicial review. In 1810 the USSC set aside a state statute in Fletcher v. Peck. But it waited more than fifty years before declaring another act of Congress unconstitutional.

The great conflict of antebellum America was sectionalism, North, South and West. The intensity of this political rivalry was primarily the product of the South’s “peculiar institution”, slavery.

Three times disunion threatened; the Missouri question in 1820; the nullification controversy, 1828-33; and issues arising in 1850 from the Mexican War. Three times North and South backed down.

But the last decade of “peace” saw a failure to compromise on both sides.

6 March 1857--the ominous Dred Scott decision was handed down just 2 days after the beginning of the unsuccessful presidency of James Buchanan.

jbp

Dred Scott: the facts Beginning in 1819, Virginia-born slave Scott• followed his owner, U.S. Army surgeon John Emerson, through a variety of free states and territories. In 1846, after passing up numerous opportunities to take his freedom, he attempted to purchase it from his current owner. When that was denied, he began a tortuous series of legal attempts to obtain it with the help of abolitionist backers.

jbp

Dred Scott: the facts Beginning in 1819, Virginia-born slave Scott• followed his owner, U.S. Army surgeon John Emerson, through a variety of free states and territories. In 1846, after passing up numerous opportunities to take his freedom, he attempted to purchase it from his current owner. When that was denied, he began a tortuous series of legal attempts to obtain it with the help of abolitionist backers. After losing cases in the state courts of MO and NY, Scott again sued his current owner, John Sanford, but this time in federal court. The grounds for taking the case to federal court were that Sanford was a resident of New York, having returned there in 1853, and that the federal courts could hear the case under diversity jurisdiction provided in III, 2, 1 of the U.S. Constitution.

jbp

Dred Scott: the facts Beginning in 1819, Virginia-born slave Scott• followed his owner, U.S. Army surgeon John Emerson, through a variety of free states and territories. In 1846, after passing up numerous opportunities to take his freedom, he attempted to purchase it from his current owner. When that was denied, he began a tortuous series of legal attempts to obtain it with the help of abolitionist backers. After losing cases in the state courts of MO and NY, Scott again sued his current owner, John Sanford, but this time in federal court. The grounds for taking the case to federal court were that Sanford was a resident of New York, having returned there in 1853, and that the federal courts could hear the case under diversity jurisdiction provided in III, 2, 1 of the U.S. Constitution. At trial in 1854, Judge Wells directed the jury to rely on Missouri law to settle the question of Scott's freedom. Since the Missouri Supreme Court had held that Scott remained a slave, the jury found in favor of Sanford. Scott then appealed to the U.S. Supreme Court. Chief Justice Roger Taney• wrote the decision, considered to be the worst in the Court’s history

jbp

Dred Scott: the issues

Dred Scott: the issues

• did the Federal Circuit Court have jurisdiction?

• did Scott have standing to sue?

• did Scott's residency in the free territory of Wisconsin

make him a free man?

Dred Scott: the decision

Dred Scott: the decision

• no--as a slave, Scott could not be a citizen of any state. Thus Art. III, Sect. 2, Cl. 1 which gives jurisdiction in “cases between citizens of different states” did not apply• no--Chief Justice Roger Taney went on to say that no descendant of slaves could ever become a citizen• no--On this point, Taney also specifically cited the Supreme Court of Missouri's denial of Dred Scott's freedom. Because the United States Circuit Court did not have jurisdiction on this matter, Taney argued, the decisions of the government of Missouri took precedence. Scott could not be a free man

“beings of an inferior order”

“beings of an inferior order”

“Relying upon statements made by Charles Pinckney, who had claimed authorship of the Privileges and Immunities Clause during the debates over the Missouri Compromise, Taney decided: "the affirmative of these propositions [that the founders considered slaves to be citizens] cannot be maintained." According to Taney, the authors of the Constitution had viewed all blacks as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Wikipedia

“Taney spent pages 407-421 of his decision chronicling the history of slave and negro law in the British colonies and American states. His goal was to ascertain whether, at the time the Constitution was ratified, federal law could have recognized Scott...as a citizen of any state within the meaning of Article III.

obiter dictumfrom Roman law ( said in passing)

The new Republican Party and its Abolitionist allies were horrified at the opinion of Maryland slaveowner Taney. It seemed to close the courts completely as an avenue to fight against slavery. In his rambling decision he had also declared the Missouri Compromise unconstitutional. It was only the second time that judicial review of Congressional legislation had been exercised.

So the opponents labelled sections such as this as obiter dictum. That is, not binding as precedent in future cases. The Scott case wasn’t the fuse which ignited the Civil War but it certainly was part of the long range causes. It was one more factor which made further compromise all but impossible.

jbp

Industrial America

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

I,8,3-The Commerce Clause

I,8,18-The Elastic Clauseor

The “Necessary andProper” Clause

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

The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich, 545 U.S. 1 (2005)The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy,[emphasis added-jbp] Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.The Commerce Clause represents one of the most fundamental powers delegated to the Congress by the founders. The outer limits of the Interstate Commerce Clause power has been the subject of long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.

Wikipedia

The driving of the golden spikePromontory Point, UT

10 May 1869

TheGoldenSpike

The Civil War accelerated America’s transformation to a modern industrial economy. This dynamic, steam-powered, colossus found its signature achievement in the railroad: the heavy industry which supported it , the finance capital which it both required and created and the transportation revolution which it ushered in. The challenges which this new economy produced would forever erase the laissez-faire government policies which had been typical of the early industrial revolution.

jbp

through the Lakota’s sacred Black Hills (filled with Au & Ag)1876 Centennial, Deadwood & Custer’s Last Stand

Since mid-century the railroads had served as America’s great generator of opportunity, opening new avenues of commerce, consuming quantities of steel and coal, and fostering a host of subsidiary industries.

Robert Wiebe, The Search for Order; 1877-1920. p. 22

Populist cartoon of the ‘70s

Robber Barons

Robber Barons

Robber Barons

Robber Barons

Robber Barons

Robber Barons

Robber Barons

Robber Barons

“The 1%”--1870s style “When Commodore Vanderbilt died in 1877, he left a fortune of $90 million. While the people struggled day by day, the argument ran, a few men far away were hoarding the nation’s wealth and power.

Wiebe, p. 8

His Mansion-Builtmore

“The 1%--1870s style

“When Commodore Vanderbilt• died in 1877, he left a fortune of $90 million•. While the people struggled day by day, the argument ran, a few men far away were hoarding the nation’s wealth and power. ‘The time was when none were poor and none were rich,’ the Texan John Reagan told his constituents that year as he left for Washington to battle the monopolists. “There were no beggars till Vanderbilts and Stewarts and Goulds and Scotts and Huntingtons and Fisks shaped the actions of Congress and moulded the purposes of government. Then the few became fabulously rich, the many wretchedly poor… and the poorer we are the poorer they would make us.’ “

Wiebe, p. 8

farmers felt threatened by the new economic forces and the post-war series of depressions (1870s-90s)

they organized (the Granger Movement) and sought legal protection through a series of legislative initiatives & court cases

The Populist Movement (1860s-1890s)

agriculturalists vs. industrialistscountry vs. city

The Grange

THE FARMERS’ MOVEMENT IN THE WEST--MEETING OF THE GRANGERS IN THE WOODS NEAR WINCHESTER, SCOTT COUNTY, ILLINOIS.--SKETCHED BY JOS B. BEALE

The Grange

The Grange

The Grange

THE FARMERS’ MOVEMENT IN THE WEST--MEETING OF THE GRANGERS IN THE WOODS NEAR WINCHESTER, SCOTT COUNTY, ILLINOIS.--SKETCHED BY JOS B. BEALE

these moved from the state to the federal courts, finally arrived at the USSC

1877-the crowning accomplishment of this campaign was Munn v. Illinois

Munn v. Illinois, 1877facts-Munn operated a grain elevator. The State of Illinois passed a”granger law” regulating the rates he could charge farmers

issues-At issue was whether the act of the Illinois Legislature in 1871, to regulate public warehouses and the inspection and handling of grain, was constitutional

decision-(7-2) delivered by• decided that the Fourteenth Amendment (because Munn asserted his due process right to property was being violated) did not prevent the State of Illinois from regulating charges for use of a business' grain elevators. Instead, the decision focused on the question of whether or not a private company could be regulated in the public interest. The court's decision was that it could, if the private company could be seen as a utility operating in the public interest.

significance-(1) it allowed states to regulate certain businesses within

their borders, including railroads (2)it is commonly regarded as a milestone in the growth of federal government regulation--Wikipedia

Morrison Remick "Mott" Waite (1816 – 1888)

attorney and politician in Ohioseventh Chief Justice of the USSC

1874 - 1888

AM XIV.1-”due process right to property”?

The Due Process Clause of the Fourteenth Amendment applies against only the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government; both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process. Procedural due process is the guarantee of a fair legal process when the government seeks to burden a person's protected interests in life, liberty, or property, and substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government. The Due Process Clause of the Fourteenth Amendment also incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states.

Wikipedia

Incorporation of the Bill of Rights

While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. In Barron v. Baltimore (1833), the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states. However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation".

Wikipedia

Incorporation of the Bill of RightsWhile many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. In Barron v. Baltimore (1833), the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states. However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation".Whether incorporation was intended by the amendment's framers, such as John Bingham•, has been debated by legal historians.According to legal scholar Akhil Reed Amar•, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the same individual rights as the federal government; all of these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment.

Wikipedia

Demand for Government Regulation Culminates in ...

1870s-various groups, especially the Grange movement, lobbied Congress to curb the railroads

1886-the Wabash case (6-3, with Chief Justice Waite in dissent) severely limited states’ power to regulate railroads, citing I.8.3 (the commerce clause). Regulating “commerce between the States” was enumerated as a federal power

Demand for Government Regulation Culminates in ...

1870s-various groups, especially the Grange movement, lobbied Congress to curb the railroads

1886-the Wabash case (6-3, with Chief Justice Waite in dissent) severely limited states’ power to regulate railroads, citing I.8.3 (the commerce clause). Regulating “commerce between the States” was enumerated as a federal power

the following year Congress passed, and Grover Cleveland signed, the Interstate Commerce Act

as the first government agency to regulate big business, the ICC established the precedent for the host of such “fourth branch” bodies. They combine legislative, executive and judicial powers

The Sherman Antitrust Act, 1890

ratified in the Senate, 51-1; in the House, 240-0

this landmark statute prohibits certain business activities deemed anticompetitive, “conspiracies in restraint of trade”

1901-Teddy Roosevelt was the first President to vigorously apply its investigative and prosecutorial powers to pursue monopolies or cartels

its purpose:

“To protect the consumers by preventing arrangements designed, or which tend, to advance the cost of goods to the consumer.”-John Sherman

“The Sherman Act has been a magnet for controversy. One branch of the criticism focuses on whether the Act improves competition and benefits consumers, or merely aids inefficient businesses at the expense of more innovative ones.

John Sherman (1823 – 1900)

nicknamed ʻThe Ohio IcicleʼOhio Representative in Congress

1855 - 1861Ohio Senator

1861 - 1877 & 1881 - 1897

Trusts*-The Populist Target

During the post-Civil War “Gilded Age” railroads were only the most visible example of business expansion and consolidation. The era was one of competitive, some say predatory, capitalism. In many fields, the most innovative and successful companies sought to acquire a dominant position, even a practical monopoly. We will look at the two most famous examples. Both were led by men from humble origins who, like Commodore Vanderbilt, became fabulously wealthy -- ”the American Dream, from rags to riches.”

jbp

_______________* contracts that placed the voting stock of several companies in the hands of “trustees”--Wiebe, p. 24 (n)

Integration-defining the terms

A Simpler Diagram

Vertical-here, Armour & Co.1867-1980s

Horizontal-here, Standard Oil Trust1870-1911 (when USSC ruled illegal)

Standard Oil Trust-primarily horizontal

Standard Oil-Its ‘Robber Baron’

founder, John D. Rockefeller was born 2nd of 6 to a ne’er-do-well father and a devout Baptist mother.Went to work as a bookkeeper, age 16

1857age 18

Standard Oil-Its ‘Robber Baron’founder, John D. Rockefeller was born 2nd of 6 to a ne’er-do-well father and a devout Baptist mother.Went to work as a bookkeeper, age 16

1870-(age 31)founded SO in Ohio. First, dominated the oil products market through horizontal consolidation in the refining sector

John Davison Rockefeller 1839 – 1937

picture c. 1872

Standard Oil-Its ‘Robber Baron’

founder, John D. Rockefeller was born 2nd of 6 to a ne’er-do-well father and a devout Baptist mother.Went to work as a bookkeeper, age 16

1870-(age 31)founded SO in Ohio. First, dominated the oil products market through horizontal consolidation in the refining sector

then, in later years, vertical consolidation to become the largest oil refiner in the world and one of the first and largest multinationals

1911-when SO was broken up, as major shareholder, he became the richest man in the world (adjusted for inflation-the richest in history)

John Davison Rockefeller 1839 – 1937picture 1885

Standard Oil Trust-primarily horizontal

The Carnegie Birthplace, Dunfermline, Scotland

Carnegie Steel Corporation1843-his father a Scots weaver, the family emigrated due to hard times (the “Hungry ‘40s)-- Andrew, age 13), to Allegheny, PA. His 1st job, a bobbin boy, changing spools in a cotton mill-12 hr/day, 6 days a week, $1.20/wk

age 16, withbrother Thomas


1850-85-with many career changes, Carnegie’s character, talents and shrewd investments prepared him for his amazing role

age 35,1878



1885-1900-using the latest technology, vertical consolidation, M & As, he built his empire. In 1889 US steel production surpassed the UK’s and Carnegie owned a big part of itAndrew Carnegie

1835 – 1919picture 1913

Carnegie Steel Corporation

1843-his father a Scots weaver, the family emigrated due to hard times (the “Hungry ‘40s)-- Andrew, age 13), to Allegheny, PA. His 1st job, a bobbin boy, changing spools in a cotton mill-12 hr/day, 6 days a week, $1.20/wk


1885-1900-using the latest technology, vertical consolidation, M & As, he built his empire. In 1889 US steel production surpassed the UK’s and Carnegie owned a big part of it

1901-J.P.Morgan engineered the U.S. Steel Corp. and Carnegie used his buyout to be the world’s greatest philanthropist

A Carnegie Library

PLC&HC e-Mail-8/30/13

“Good Trusts” & “Bad Trusts”?

In 1887, a thirty-one-year-old Progressive university professor wrote an article which expresses the beliefs of the movement. He had just earned a PhD in history and political science at Johns Hopkins. Two years later he would join the Princeton faculty, rising to become its president in 1902. His name, Thomas W. Wilson. More will be heard from him…

jbp

“The socialist….points to the incontrovertible fact that the economic and social conditions of life in our century are...radically different from those of any other time whatever. Many affairs of life which were once easily...handled by individuals have now become so entangled… ,so confused… ,that only powerful combinations of wealth and influence can [deal with] them. Corporations grow on every hand, and not only swallow and overawe individuals but also compete with governments….Here is a monstrously changed aspect of the social world. In face of such circumstances, must not government lay aside all timid scruple and boldly make itself an agency for social reform as well as for political control?”

T. Woodrow Wilson,”Socialism and Democracy,” August 22, 1887, quoted in Hillsdale, pp. 647-48

“...a new middle class--largely urban professional men and women--...developed the new values of ‘continuity and regularity, functionality and rationality, administration and management’ in order to cope with twentieth-century problems. Inevitably this new value system, consciously in conflict with that of nineteenth-century America, led the new middle class to see ‘the need for a government of continuous involvement’ and to emphasize executive administration. The Progressive movement was the triumph of this new middle class with its bureaucratic mentality.”

David Herbert Donald,introduction to, Robert Wiebe, The Search for Order; 1877-1920. p. viii

Populists and Progressives Compared

Populists Progressives

period of greatest influence

1870s-1900s 1890s-1920s

geographic power base

rural urban

social class base farmersmiddle class

professionals

attitude towards progress

fearedbelieved they represented it

The American Century

IV. A-A New Kind of President1900-when McKinley ran for a second term and chose “the hero of San Juan Hill” as his running mate, OH conservative boss Mark Hanna remarked:

“There’s only one life between that damn cowboy and the White House!”



Sept, 1901-T.R. became our youngest president and brought activism never before seen

age 42



Sept, 1901-T.R. became our youngest president and brought activism never before seen

he immediately went after the Trusts

to focus the attack, he created the short-lived Department of Commerce and Labor

1903-McKinley had been unwilling to go after the Northern Securities Co., a giant railroad trust. TRs first order to Justice:sic ‘em! [JP Morgan’s response?}

1906-when his Elkins Act (1903) proved ineffective in strengthening the ICC, he proposed the Hepburn Act . It worked

age 42

A Cartoonist’s Dream

George Cortelyou,Secretary of the new

Department ofCommerce and Labor












IV. B-Muckrakers1906-TR, who liked to manage the press & choose his own targets, coined the label in a speech, “The Man with a Muckrake” who prefers to focus on filth

the “Muckrakers” turned the tables & took it as a badge of honor

1902- McClure’s magazine is considered to be beginning of the genre. It contained three articles:

IV. B-Muckrakers1906-TR, who liked to manage the press & choose his own targets, coined the label in a speech, “The Man with a Muckrake” who prefers to focus on filth



Ida Tarbell, “History of Standard Oil”

IV. B-Muckrakers1906-TR, coined the label in a speech, “The Man with a Muckrake” who prefers to focus on filth


1902- McClure’s magazine contained three articles:


Lincoln Steffens, “The Shame of the Cities”

IV. B-Muckrakers

1906-TR, who liked to manage the press & choose his own targets, coined the label in a speech, “The Man with a Muckrake” who prefers to focus on filth




Lincoln Steffens, “The Shame of the Cities”

Ray Stannard Baker, “The Right to Work” about the dangerous conditions in the coal mines

13-year-old

Two Muckraking Novelists1901-The Octopus was his exposé of the Muscle Slough tragedy of 1880

hired guns of the Southern Pacific Railroad gunned down 11 protesting farmers at Muscle Slough

Benjamin Franklin Norris, Jr.Frank Norris 1870 – 1902

Two Muckraking Novelists

1901-The Octopus was his exposé of the Muscle Slough tragedy of 1880

hired guns of the Southern Pacific Railroad gunned down 11 protesting farmers

Muscle Slough was the sceneof murder by toughs hiredby the railroad, who killed

protesting farmers


planning a trilogy of wheat, his next book was The Pit (1903-published posthumously)

it described the corrupt shenanigans of the Chicago Board of Trade, where wheat was traded and exported to the world

Chicago BOT


planning a trilogy of wheat, his next book was The Pit (1903-published posthumously)

it described the corrupt shenanigans of the Chicago Board of Trade, where wheat was traded and exported to the world

another famous muckraking novelist of the period was Upton Sinclair. He also focused on Chicago, “hog butcher to the world”

1906-his novel, The Jungle, had huge political consequences

Upton Beall Sinclair, Jr.Upton Sinclair

1878 – 1968


it grew out of an investigation he did for a socialist newspaper

The book depicts poverty, the absence of social programs, unpleasant living and working conditions, and the hopelessness prevalent among the working class, which is contrasted with the deeply rooted corruption of people in power

A review by the writer Jack London called it, "the Uncle Tom's Cabin of wage slavery."

but what the public seized upon were the horrific, unsanitary conditions of the meat-packing trust

Chicago Meat-Packing, 1900






T.R. Responds, grudgingly

A NAUSEATING JOB, BUT IT MUST BE DONEPresident Roosevelt takes hold of the investigating “muck-rake” himself in the packing -house scandal


1906-it was this event which led T.R. to give the speech which named them Muckrakers


1906-it was this event which led him to give the speech which named them Muckrakers

Sinclair went on to write almost a hundred books

Time magazine called him "a man with every gift except humor and silence." -Wikipedia

In 1943, he won the Pulitzer Prize for Fiction.

Sinclair also ran unsuccessfully for Congress as a Socialist, and was the Democratic Party nominee for Governor of California in 1934, though his highly progressive campaign was defeated rather soundly-Wikipedia

IV. C-The Muckrakers’ Targetscorruption

waste

inefficiency

urban problems

immigrant assimilation

labor exploitation

saloons--targets of the Anti-Saloon League

“machines” (Bossism)

slums

public health issues, pollution

poor schools

the “unfit” --targets of the eugenics movement

IV. C.1-The Bosses1902-although the Tweed Era ended with Boss Tweed’s death in 1878, his career had been so spectacular that Lincoln Steffens began his Shame series with “Tweedism in St. Louis”


a sample of urban political machines:

St. Louis (4th largest city)-- “Uncle” Henry Ziegenhein (R)

Chicago (“Second City”)--Roger Sullivan (D)2nd gen. Ire., ran Cook Co. Dem. Party, arch enemy of Wm Jennings Bryan

noimage





Indianapolis--Tom Taggart (D) Ire., mayor 1895-1901, Chair DNC 1904-08, 1912 Dem. Nom. Convention, with Sullivan, blocked “crazy reformer” Bryan, French Lick gambling interests






NYC--Richard Croker (D) County Cork, “boss”of Tammany•, 1884-1901•

IV. C.1-The Bosses

1902-although the Tweed Era ended with Boss Tweed’s death in 1878, his career had been so spectacular that Lincoln Steffens began his Shame series with “Tweedism in St. Louis”





NYC--Richard Croker (D) County Cork, “boss”of Tammany•, 1884-1901•

Cincinnati--Geo Barnsdale Cox (Rep.) 2nd gen. Br., saloon keeper, ward boss, Ham Co. Rep.Chair until died of a stroke, 1916 --his mansion by Burnet Woods

IV. C.2-Urban Poverty The Bosses had their solution to the problem. They organized city services to meet the previously undirected growth of the inner cities. “Ward heelers”* like Cox organized the (often immigrant) poor by “fixing” their problems in return for voting loyalty. But the middle class Progressives scorned bossism. They looked down on the graft and “ill-gotten gains” of the lower class operators. When T.R. told his upper class chums that he intended to run for office against Tammany, they thought he was mad. Instead of seeking office many genteel reformers took the private voluntary path of the Settlement House.

jbp

___________* ward heelernoun informal, chiefly derogatorya person who assists in a political campaign by canvassing votes for a party and performing menial tasks for its leaders.

IV. C.2.a-The Settlement movement

1884- Toynbee Hall in England was the first Settlement House. It attracted idealistic middle class volunteers to live among the poor and help them learn coping skills

1889- inspired by their visit there, Jane Addams• and her partner Ellen Gates Starr founded the first American Settlement, Hull House in Chicago

its variety of programs were widely influential

English and citizenship classes for immigrants

free clinics where medical students did their residency serving the inner city poor

women’s programs to teach home economics and the new feminist ideology

children’s day care and early childhood education

1903-a 34-year-old Methodist minister and his “modern woman” college-educated wife were hired to start Cincinnati’s first Settlement House

1913-a decade later, there were 413 settlements in 32 states

picture, 1912

IV. C.2.a-The Settlement movement1884- Toynbee Hall was the first Settlement House. It attracted idealistic middle class volunteers to live among the poor and help them learn coping skills

1889- inspired by their visit there, Jane Addams and her partner Ellen Gates Starr founded the first American Settlement, Hull House in Chicago




IV. C.2.a-The Settlement movement1884- Toynbee Hall was the first Settlement House. It attracted idealistic middle class volunteers to live among the poor and help them learn coping skills







Hull House Women’s Club Building

ImmigrantChildren’s

Melting PotTableau

IV. C.2.a-The Settlement movement

1884- Toynbee Hall was the first Settlement House. It attracted idealistic middle class volunteers to live among the poor and help them learn coping skills







1903-a 34-year-old Methodist minister and his “modern woman” college-educated wife were hired to start Cincinnati’s first Settlement House

1913-a decade later, there were 413 settlements in 32 states

IV. C.2.b-A Cincinnati example1884-Jimmy White, (15)born in Canada to Scotch-Irish parents, came to Saginaw to strike-break

his employer was so impressed that he helped to go to Albion College part time

James Orm White1869-1926



1894-there he (25)met his future wife and helpmate, Bessie Bruce (18)

1899-married, they went to Boston U. where he took his B.D. and she an M.A in history

1903-moved to Cincinnati to turn the Union Bethel (1837-present) into a Settlement like Hull House

they introduced many innovative programs

Bessie Bruce White1876-1960

Rev. Mr. White of Union Bethel Cincinnati, teaching children lessons in gardening.



1894-there he (25)met his future wife and helpmate, Bessie Bruce (18)

1899-married, they went to Boston U. where he took his B.D. and she an M.A in history

1903-moved to Cincinnati to turn the Union Bethel (1837-present) into a Settlement like Hull House

they introduced many innovative programs

1906-Jimmy proposed a residence for working girls from the countryside--a safe Christian “home”

1909-Charles P. Taft matched every dollar which Jimmy collected from the other patricians. The Anna Louise Inn was named for his daughter

Charles Phelps Taft1843-1929

When the Inn opened in 1909, it immediately filled & had a waiting list of 100

300 Lytle St.

, Pike St. addition (1920)

Once again, Taft gave the land and much of the construction cost

The Progressive reform movement had many allies: in government, the universities, the press, middle class professionals, clergy. The Old Order was on the defensive. But it had an important ally.

A conservative U.S. Supreme court.

jbp

IV. D-Judicial Review Applies the Brake

Melville Weston Fuller, 8th Chief Justice

IV. D-Judicial Review Applies the Brake

The Fuller Court- 1888-1910--

U.S. v E.C. Knight Co., !895--tested the Sherman Anti-Trust Act, ruled ( 8-1) against the government’s right to break up a 98% monopoly of the sugar industry

Plessy v. Ferguson, !896--ruled (7-1)that a LA state law requiring “separate but equal” railroad accommodations for Negroes did not violate the “equal protection” clause of AM XIV. Dissent by John Marshall Harlan*

Allgeyer v Louisiana., !897--unanimously struck down a pro-union law on the grounds that it violated an individual’s “liberty to contract.” This was the first case in which the Supreme Court interpreted the word liberty in the Due Process Clause of the Fourteenth Amendment to mean economic liberty

ICC v Cin’ti, New Orleans, and Texas Pacific Railway Corp., !897--ruled that the ICC had executive & judicial, but not legislative power. It could not fix rates.

IV. D.1-The Lochner Era-1897-1936

the name given to this period of conservative Supreme Court decisions which wrecked Progressive attempts to use federal and state laws to curb “Big Business ”

Lochner v. New York, 1905 - relying on the Allgeyer precedent, the Fuller Court struck down a NY state law limiting weekly working hours

Adair v. United States, 1908 - striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment ("yellow-dog contract")

the White & Taft Court cases will be discussed but here’s how the New Deal cases round out the Lochner Era:

United States v. Butler, 1936 - construing I.8.3 (giving Congress the taxing power) to rule the Agricultural Adjustment Act (AAA)unconstitutional

Carter v. Carter Coal Company, 1936 - striking down federal legislation regulating the coal industry, thus gutting the Nat’l Recovery Administration (NRA), FDR’s other key program

IV. D.1-The Lochner Era-1897-1936

the name given to this period of conservative Supreme Court decisions which wrecked Progressive attempts to use federal and state laws to curb “Big Business ”

Lochner v. New York, 1905 - relying on the Allgeyer precedent, the Fuller Court struck down a NY state law limiting weekly working hours

Adair v. United States, 1908 - striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment ("yellow-dog contract")

the White & Taft Court cases will be discussed (below) but here’s how the New Deal cases round out the Lochner Era:

United States v. Butler, 1936 - construing I.8.3 (giving Congress the taxing power) to rule the Agricultural Adjustment Act (AAA)unconstitutional

Carter v. Carter Coal Company, 1936 - striking down federal legislation regulating the coal industry, thus gutting the Nat’l Recovery Administration (NRA), FDR’s other key program

IV. D.1-The White and Taft Courts

9th 10th

The White Court, 1915

The White Court- 1910-1921

Coppage v. Kansas. 1915-striking down state legislation prohibiting yellow dog contracts

Hammer v. Dagenhart. 1915-striking down federal regulation of child labor. A father had sued claiming his two sons, under 14 were denied their “liberty of contract”!

Duplex Printing Press Co. v. Deering. 1921-construing federal legislation not to exempt labor unions from antitrust lawsuits!

The Taft Court- 1921-1930Bailey v. Drexel Furniture Co., 1922-invalidating a federal tax on interstate commerce by employers hiring children

Adkins v. Children’s Hospital, 1923-striking down federal legislation mandating a minimum wage for women and children in the District of Columbia. Both Taft and Oliver Wendell Holmes dissented. Liberal Associate Justice Louis Brandeis didn’t participate in the case

The nineteen-twenties saw conservative forces using the Constitution to impede the Progressive movement. Two Progressive presidents, T.R. and Wilson, were succeeded by three conservatives: Harding, Coolidge and Hoover. But the real brake was the Supreme Court’s power of judicial review.

The Lochner Era clearly demonstrates the tremendous importance of the process. But with the presidential election of 1932, the greatest Progressive of them all would use his power of appointment to slowly change the course of the Ship of State.

Judicial review cuts both ways. But that’s another story...