Hello and welcome once again to The Global
Student's Introduction to the Law of the
United States.
I am Professor Pedro A Malavet from the
Levin College of Law, and
today I will be discussing the growth of
Federal power and the Civil War.
We spoke last time about vertical
federalism, the
relationship between the national
government and the states.
The power of our Federal government has
grown immensely since the time of the
original passage of the Constitution, and
there
are significant historical moments that
make that necessary.
And I would describe that there are two
fundamental periods of this.
Up to the immediate aftermath of the
American Civil War.
And the modern period of the usage of the
Commerce Clause to expand
Federal legislative authority, and that
will be a subject of a separate series.
In this first session we will discuss the
period
up to the immediate aftermath of the
American Civil War.
The growth of the Federal government power
be, relative to that of the
states, begin with the finding of implied
powers by the Court.
In McCulloch versus Maryland in 1819, the
Supreme
Court found that the Federal government
had implied powers.
Now, we spoke earlier about the enumerated
powers
in the Constitution, meaning that there is
a
very specific list of areas of authority
that
are given and then trusted to the Federal
government.
But the Court said that there were powers
implicit in those enumerated powers.
That were necessary and proper to carry
out the authority
that had been given to the Federal
government in the Constitution.
And indeed, there is a Necessary and
Proper Clause in the Constitution itself.
It is, in fact, the last of the enumerated
powers, which the Court found necessarily
gave to the legislative a certain level of
discretion, as to how to specifically
carry out its express authority.
The.
Another important ruling that expanded
Federal power relative to the state was
that the Supreme Court itself found that
it had the power to review state court
judgments, and so in Fletcher versus Peck,
the court found its power of judicial
review, which we discussed in Marbury
versus
Madison, extended to interpretation of
Federal law.
Also extended to review court judgments
issued by state courts implicating Federal
law.
And the court also said that the court has
appellate jurisdiction over
state court decisions that interpret any
federal statue in Martin versus Hunter's
Lessee.
In Cohens versus Virginia, the court said
that it had the authority
to review state criminal cases to see if
the ruling violated Federal law,
and importantly in modern time, whether
there is a violation of the
fundamental rights granted to defendants
in criminal cases by the Bill of Rights.
In addition, there was the compromise over
slavery, prior to the Civil War.
As I mentioned in a previous session,
slavery was enshrined in the American
Constitution.
It could not be abolished.
And it was the unresolvable dispute among
the states.
And as the nation expanded from the
original 13 colonies, the question of
whether
or not these new territories would be
slave territories or free territories, of
course, arose.
The Missouri Compromise stated that the
admitted states
of Missouri and Maine would each be
different.
Missouri would be admitted as a slave
state; Maine would be a free state.
The compromise, therefore, would be to
maintain balance between the
free states and those that continued the
institution of slavery.
The compromises also declare that the
northern
part of the Louisiana Territory would be
free.
This is significant because the Louisiana
Territory extended over what is today
the American West and all the way up to
the, to Montana.
Almost all the way to the Pacific
Northwest.
So, this was a huge territory that was
deemed to be free.
Another part of the so-called slavery
compromise was a judicial decision.
One that is sadly remembered, of course,
because in Dred Scott versus Sandford in
1857.
The Supreme Court ruled that slaves were,
in fact,
not citizens of the United States; they
were property.
They were not people, and therefore, that
the runaway slave provision
of the Constitution would automatically be
applied in the territories, so even
though the Missouri Compromise provided
that a huge territorial
expansion would be slave free, any slave
lucky enough to
escape there were subject to capture and
legal return to their masters.
It wasn't until the Civil War that
the slavery issue would be ultimately
resolved.
Here you see casualties at the battlefield
at Gettysburg.
And in the inset, you see the draft of the
Gettysburg Address, delivered by President
Lincoln as that battle ended.
The Civil War has a significant effect of
cores in American law.
It resolves the question of slavery, of
course, but it also mean that the
Federal government, the national
government, became more
important, and therefore, it became more
powerful.
The War itself began in 1861 and lasted
until 1865.
It was the secession of the 11
so-called Confederate states that lead to
the revolution.
And when those states surrendered and then
re-entered the Union, the War was over.
The 13th Amendment of 1865 ended the
institution of slavery in the United
States.
In addition to the 13th Amendment, the
Post-Civil
War period saw the 14th and 15th
Amendments passed.
The 14th Amendment importantly provided
that the former slaves were, in
fact, now citizens of the Unites States;
therefore, it over ruled
Scott versus Sandford, and it also
established that the Due Process and Equal
Protection clauses of the Constitution are
binding upon the states.
That means through that, through the 14th
Amendment,
the entire Bill of Rights now becomes
binding upon
the states, particularly the fundamental
rights given to individual
citizens, which are included in the Bill
of Rights.
The 15th Amendment deals with the voting
rights of freed slaves.
And, of course, the voting entitlement is
one
of the most important entitlements in any
democracy.
The amendments are, of course, quite
significant.
However, they are not as significant as
they were intended to be.
And the reason for that was a rather
reactionary Supreme Court.
The Supreme Court limited the effect of
the Post-Civil War amendments, which
provided that Congress had the authority
to implement those amendments by
appropriate legislation.
And that was clearly intended by the
legislative power to allow broad
implementation authority.
But in a series of cases, the Supreme
Court severely limited that authority.
The Slaughter-House cases in 1872 ruled
that
the 14th Amendment did not protect a right
to engage in a profession, so therefore,
former
slaves, African-Americans, could be kept
from being professionals.
In the Civil Rights Cases in 1883 the
Supreme Court ruled that it was
beyond Congress's power to pass a Federal
law prohibiting racial segregation in
private businesses.
To understand this, you must understand
the concept called state action.
Basically, what the Supreme Court ruled
was that private discrimination was not
unconstitutional, and, therefore, the
Congress didn't
have the authority to invalidate it.
It would take almost 100 years for the
Congress to realize that
it had Commerce clause authority to
invalidate racial segregation, even in
private
settings, and we will discuss that in a
future series, but as far as having 14th
Amendment authority, the Court found that
it lacked it.
Lastly, Plessy vs Ferguson, the separate
but equal ruling.
The Supreme Court ruled that it was
permissible for states to establish
statutory regimes of racial segregation,
so called Jim Crow laws.
Laws that provided that there were spaces
in public
areas designated for Whites, and spaces
designated for Blacks.
The American Southwest had also extended
to Latinos.
And, for example, in Texas you would find
signs that said [FOREIGN] Men here.
Meaning that Hispanics, Latinas and
Latinos had to
go to specific areas that were reserved
for them.
And they were barred from using the areas
designated for Whites.
That was legal according to the Supreme
Court because states were
allowed to racially segregate to create an
apartheid system for their citizens.
So in conclusion, the Civil War did result
that
slavery would no longer exist in the
United States,
and we solved that cancer that the
Founding Fathers
had been unable to remove from the
American Republic.
And that is significant, of course.
It also had a significant effect on law
and
particularly on the authority of our
Federal national government.
It required a more powerful national
government.
But it was intended to be much more
powerful by the Post-Civil War amendments
and judicial review.
Decisions by the Supreme Court of the
United States limited it.
And it would require what I label the
second period of the growth of Federalism
to resolve that particular dispute and
that
will be the subject of my next session.
Student's Introduction to the Law of the
United States.
I am Professor Pedro A Malavet from the
Levin College of Law, and
today I will be discussing the growth of
Federal power and the Civil War.
We spoke last time about vertical
federalism, the
relationship between the national
government and the states.
The power of our Federal government has
grown immensely since the time of the
original passage of the Constitution, and
there
are significant historical moments that
make that necessary.
And I would describe that there are two
fundamental periods of this.
Up to the immediate aftermath of the
American Civil War.
And the modern period of the usage of the
Commerce Clause to expand
Federal legislative authority, and that
will be a subject of a separate series.
In this first session we will discuss the
period
up to the immediate aftermath of the
American Civil War.
The growth of the Federal government power
be, relative to that of the
states, begin with the finding of implied
powers by the Court.
In McCulloch versus Maryland in 1819, the
Supreme
Court found that the Federal government
had implied powers.
Now, we spoke earlier about the enumerated
powers
in the Constitution, meaning that there is
a
very specific list of areas of authority
that
are given and then trusted to the Federal
government.
But the Court said that there were powers
implicit in those enumerated powers.
That were necessary and proper to carry
out the authority
that had been given to the Federal
government in the Constitution.
And indeed, there is a Necessary and
Proper Clause in the Constitution itself.
It is, in fact, the last of the enumerated
powers, which the Court found necessarily
gave to the legislative a certain level of
discretion, as to how to specifically
carry out its express authority.
The.
Another important ruling that expanded
Federal power relative to the state was
that the Supreme Court itself found that
it had the power to review state court
judgments, and so in Fletcher versus Peck,
the court found its power of judicial
review, which we discussed in Marbury
versus
Madison, extended to interpretation of
Federal law.
Also extended to review court judgments
issued by state courts implicating Federal
law.
And the court also said that the court has
appellate jurisdiction over
state court decisions that interpret any
federal statue in Martin versus Hunter's
Lessee.
In Cohens versus Virginia, the court said
that it had the authority
to review state criminal cases to see if
the ruling violated Federal law,
and importantly in modern time, whether
there is a violation of the
fundamental rights granted to defendants
in criminal cases by the Bill of Rights.
In addition, there was the compromise over
slavery, prior to the Civil War.
As I mentioned in a previous session,
slavery was enshrined in the American
Constitution.
It could not be abolished.
And it was the unresolvable dispute among
the states.
And as the nation expanded from the
original 13 colonies, the question of
whether
or not these new territories would be
slave territories or free territories, of
course, arose.
The Missouri Compromise stated that the
admitted states
of Missouri and Maine would each be
different.
Missouri would be admitted as a slave
state; Maine would be a free state.
The compromise, therefore, would be to
maintain balance between the
free states and those that continued the
institution of slavery.
The compromises also declare that the
northern
part of the Louisiana Territory would be
free.
This is significant because the Louisiana
Territory extended over what is today
the American West and all the way up to
the, to Montana.
Almost all the way to the Pacific
Northwest.
So, this was a huge territory that was
deemed to be free.
Another part of the so-called slavery
compromise was a judicial decision.
One that is sadly remembered, of course,
because in Dred Scott versus Sandford in
1857.
The Supreme Court ruled that slaves were,
in fact,
not citizens of the United States; they
were property.
They were not people, and therefore, that
the runaway slave provision
of the Constitution would automatically be
applied in the territories, so even
though the Missouri Compromise provided
that a huge territorial
expansion would be slave free, any slave
lucky enough to
escape there were subject to capture and
legal return to their masters.
It wasn't until the Civil War that
the slavery issue would be ultimately
resolved.
Here you see casualties at the battlefield
at Gettysburg.
And in the inset, you see the draft of the
Gettysburg Address, delivered by President
Lincoln as that battle ended.
The Civil War has a significant effect of
cores in American law.
It resolves the question of slavery, of
course, but it also mean that the
Federal government, the national
government, became more
important, and therefore, it became more
powerful.
The War itself began in 1861 and lasted
until 1865.
It was the secession of the 11
so-called Confederate states that lead to
the revolution.
And when those states surrendered and then
re-entered the Union, the War was over.
The 13th Amendment of 1865 ended the
institution of slavery in the United
States.
In addition to the 13th Amendment, the
Post-Civil
War period saw the 14th and 15th
Amendments passed.
The 14th Amendment importantly provided
that the former slaves were, in
fact, now citizens of the Unites States;
therefore, it over ruled
Scott versus Sandford, and it also
established that the Due Process and Equal
Protection clauses of the Constitution are
binding upon the states.
That means through that, through the 14th
Amendment,
the entire Bill of Rights now becomes
binding upon
the states, particularly the fundamental
rights given to individual
citizens, which are included in the Bill
of Rights.
The 15th Amendment deals with the voting
rights of freed slaves.
And, of course, the voting entitlement is
one
of the most important entitlements in any
democracy.
The amendments are, of course, quite
significant.
However, they are not as significant as
they were intended to be.
And the reason for that was a rather
reactionary Supreme Court.
The Supreme Court limited the effect of
the Post-Civil War amendments, which
provided that Congress had the authority
to implement those amendments by
appropriate legislation.
And that was clearly intended by the
legislative power to allow broad
implementation authority.
But in a series of cases, the Supreme
Court severely limited that authority.
The Slaughter-House cases in 1872 ruled
that
the 14th Amendment did not protect a right
to engage in a profession, so therefore,
former
slaves, African-Americans, could be kept
from being professionals.
In the Civil Rights Cases in 1883 the
Supreme Court ruled that it was
beyond Congress's power to pass a Federal
law prohibiting racial segregation in
private businesses.
To understand this, you must understand
the concept called state action.
Basically, what the Supreme Court ruled
was that private discrimination was not
unconstitutional, and, therefore, the
Congress didn't
have the authority to invalidate it.
It would take almost 100 years for the
Congress to realize that
it had Commerce clause authority to
invalidate racial segregation, even in
private
settings, and we will discuss that in a
future series, but as far as having 14th
Amendment authority, the Court found that
it lacked it.
Lastly, Plessy vs Ferguson, the separate
but equal ruling.
The Supreme Court ruled that it was
permissible for states to establish
statutory regimes of racial segregation,
so called Jim Crow laws.
Laws that provided that there were spaces
in public
areas designated for Whites, and spaces
designated for Blacks.
The American Southwest had also extended
to Latinos.
And, for example, in Texas you would find
signs that said [FOREIGN] Men here.
Meaning that Hispanics, Latinas and
Latinos had to
go to specific areas that were reserved
for them.
And they were barred from using the areas
designated for Whites.
That was legal according to the Supreme
Court because states were
allowed to racially segregate to create an
apartheid system for their citizens.
So in conclusion, the Civil War did result
that
slavery would no longer exist in the
United States,
and we solved that cancer that the
Founding Fathers
had been unable to remove from the
American Republic.
And that is significant, of course.
It also had a significant effect on law
and
particularly on the authority of our
Federal national government.
It required a more powerful national
government.
But it was intended to be much more
powerful by the Post-Civil War amendments
and judicial review.
Decisions by the Supreme Court of the
United States limited it.
And it would require what I label the
second period of the growth of Federalism
to resolve that particular dispute and
that
will be the subject of my next session.
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