HAMILTON: NOT THE MUSICAL

CLE Credit: 1.0 Friday, June 23, 2017 12:30 p.m. - 1:30 p.m.

West Ballroom C-D Owensboro Convention Center

Owensboro, Kentucky

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The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenter .................................................................................................................. i Alexander Hamilton ......................................................................................................... 1 Timeline: The Life of Alexander Hamilton ....................................................................... 3 Hamilton: Not the Musical............................................................................................... 7

THE PRESENTER

Dr. William G. Chrystal Post Office Box 528

Charlotte Court House, Virginia 23923 (775) 771-0396

bchrystal@hotmail.com DR. WILLIAM G. (BILL) CHRYSTAL is the author of Hamilton by the Slice: Falling in Love With Our Most Influential Founding Father. In addition, he is a Virginia-based scholar/interpreter of Alexander Hamilton, founding father and originator of America's economic system. Dr. Chrystal has performed and spoken around the country (and in the Caribbean), including some places near and dear to the man on the ten dollar bill—such as Charlestown on the Island of Nevis, where Hamilton was born, and Federal Hall and Fraunces Tavern in New York City, where Hamilton worked and played. Dr. Chrystal was featured at the opening of the Hamilton Grange National Memorial in 2012, speaking about "Alexander Hamilton in the Caribbean". He is also a scholar of Reinhold Niebuhr and the Niebuhr family and has written or edited eight books. Dr. Chrystal is the author of many articles in magazines and scholarly journals, and, for ten years was host of the NPR program "The Thomas Jefferson Hour". He invites you to visit his website: www.William-G-Chrystal.com.

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ALEXANDER HAMILTON (January 11, 1757 – July 12, 1804)

Most of us didn't give Alexander Hamilton a thought until the hit Broadway play, Hamilton: An American Musical. Before that, he was the founding father on the ten dollar bill. Or he was the man who was killed in a duel by Vice President Burr. Maybe, if you were a law student, you knew Hamilton was a key creator and primary author of the Federalist Papers. Beyond that, most of us weren't interested or motivated to learn more. So what changed? Hamilton didn't change. He's been dead for 212 years. So what changed was that Lin-Manuel Miranda—the playwright—rekindled in us the desire to root for the American Dream. The story of someone impoverished, without a shred of hope, who makes it big, really big! And

that is the story of Alexander Hamilton. In a nutshell, Hamilton was born at a time when the rules of "who gains in society" were being rewritten. He was on the borderline of acceptability from the gene pool criteria. But he was heads and shoulders above others when merit, energy and virtue were thrown into the mix. Hamilton used his wits, knowledge, relationships and character to climb the social and political ladders. When he was eleven, his mother died. His childhood was over. He worked hard, studied hard, and found generous mentors, including some who financed his way to the colonies for an education. He kept his eyes open for opportunities to help the folks who could help him and/or to further his reputation. He proved his worth as an artillery captain at the beginning of the Revolutionary War. Then, he switched roles and became General Washington's primary aide de camp for four years. At the same time, he studied economics in the evenings and established mutually beneficial relationships with a group of American financiers. He changed hats again toward the end of the war and heroically commanded a light infantry battalion at the decisive Battle of Yorktown. After the war, Hamilton took advantage of a short-lived opportunity for "students turned soldier" to take the bar without a qualifying apprenticeship. Hamilton was a natural self-learner and absorbed the law. He passed the New York bar in six months' time. All his young life, Hamilton studied the ancients and their form of virtue. He imitated them until it was habit, and he placed himself in the company of good men and women. As such, Hamilton married the second daughter of Major General Philip Schuyler of Albany, New York. Both Hamilton and his wife, Elizabeth, believed it was a citizen's duty to serve their country in both war and peace. (In the late 1700s, politicians served without pay or with only a minor stipend. Career politicians were supported by family money, not public funds.) By the mid-1780s, Hamilton was one of New York's most prominent lawyers, and he was involved in helping to shape the newly formed country. He was selected by the New

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York legislature as a delegate to the Annapolis Convention—the meeting that gave birth to the Constitutional Convention and the writing of a new Constitution. Hamilton became a New York delegate to this convention; and, after signing the Constitution, on September 17, 1787, he used his energies to support its ratification. This included teaming up with John Jay and James Madison to author the Federalist Papers (possibly the greatest marketing blitz of the century)—a series of newspaper essays providing in-depth understanding of the Constitution and its proposed form of government. Hamilton wrote more than half of them. When George Washington assumed the presidency, he appointed Hamilton as his secretary of the treasury. In that position, Hamilton shaped American economic policy, developed a plan for paying off the war debt, and established the First National Bank. He was a champion for free trade and commerce among the states and overseas. He was also a trusted advisor to President Washington and influenced virtually every decision of Washington's presidency. Hamilton did not always see eye-to-eye with those who wore their self-interest on their sleeves. He also had higher expectations of political support from his mentors than reality bore out. Hamilton left the treasury department in 1795 to return to his private law practice. But he did not leave until he set in place the mechanics for the United States to become a Hercules among nations. Hamilton's demise came at the hand of Aaron Burr, in a duel at Weehawken, New Jersey. Hamilton did not trust Burr. He thought him to be a Caesar in the making. Thus, Hamilton consistently blocked Burr's political path, including Burr's bid for the presidency in the election of 1800. Later, when Burr ran for governor of New York in 1804, Hamilton, once again, opposed Burr's candidacy. On the pretext of a Hamilton uttered slur against him, Burr challenged Hamilton to a duel. Hamilton tried to move Burr off his position but was unable to do so. As a matter of honor, Hamilton agreed to the duel as a means of settling the matter. He made it known that he would not shoot at his opponent. Hamilton was fatally wounded in the duel and died the next day, on July 12, 1804. Hamilton Quotation on Government

There are two objects in forming systems of government—safety for the people, and energy in the administration. When these objects are united, the certain tendency of the system will be to the public welfare. If the latter object be neglected, the people's security will be as certainly sacrificed as by disregarding the former. Good constitutions are formed upon a comparison of the liberty of the individual with the strength of the government.

--Alexander Hamilton, Speech on the Senate of the United States, June 25, 1788.

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TIMELINE: THE LIFE OF ALEXANDER HAMILTON Created by Donald Scarinci of Scarinci Hollenbeck LLC and William G. Chrystal

1/11/1757: Alexander Hamilton, the second of two boys, is born on the British island

of Nevis in the West Indies to James Hamilton and Rachael Faucette. Spring 1765: The Hamilton family moves to the island of St. Croix. 1766: Alexander Hamilton begins clerking for a St. Croix merchant, Nicholas

Cruger. 1767: James Hamilton (father) leaves the family and eventually the island. 1768: Rachael Faucette (mother) dies of the fever. 10/1771: Nicholas Cruger falls ill and returns to New York. He leaves fourteen-

year-old Alexander Hamilton in charge (for five months) of the St. Croix portion of his mercantile company.

Fall 1772: Hamilton leaves St. Croix to attend school in Elizabethtown, New Jersey.

He is assisted financially by his older cousin Ann Lytton Venton and a series of business men and Christians.

Fall 1773: Hamilton enrolls at King's College (now Columbia University). 12/1774: One of Hamilton's first public political essays, A Full Vindication of the

Measures of Congress, is published. He is just shy of eighteen years old and a college student at the time.

4/1775: The first shots of the American Revolution are fired, and Hamilton joins a

New York militia company. 3/1776: Hamilton becomes captain of a New York company of artillery. He

conducts himself with exceptional skill and is asked to serve as an aide to General George Washington. For four years, he assists in the administrative and operational components of the war.

12/1780: Hamilton marries Elizabeth Schuyler, the second daughter of Major

General Philip Schuyler of Albany, NY. In the twenty-four years before Hamilton's death, they have seven children together.

10/1781: Hamilton commands the final American drive to victory at Yorktown by

seizing Redoubt Number 10, a fortified British position. Later that month, Hamilton leaves active military service.

7/1782: Hamilton embraces civilian life and is admitted to the New York bar. While

some people spend years studying to become lawyers, it takes Hamilton less than six months to master the law.

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10/1782: Hamilton is elected to the New York State Assembly. 8/7/1786: In Rutgers v. Waddington, argued in the Mayor's Court in New York City.

Hamilton represents a Tory property owner. He challenges NY law, which permitted seizing Tory land. He argues that the international Treaty of Paris of 1783, which ended the Revolutionary War and guaranteed all property rights for both Americans and Loyalists, should take precedence over New York state law. He achieves a partial victory and helps to establish legal precedent.

9/1786: Hamilton is selected as one of five delegates to represent New York at

the Continental Congress. 5/1787: Hamilton is one of three New York delegates at the Constitutional

Convention, supporting the creation of a strong federal government. 9/1787: After working through the summer, the convention delegates approve and

sign the proposed Constitution. Nine of the thirteen states must ratify the document for it to take effect.

10/1787: Hamilton joins James Madison and John Jay writing a series of

newspaper essays that come to be known as the Federalist Papers. The articles explain various provisions in the Constitution and urge the states to ratify it. Hamilton writes more than half of them.

7/1788: Hamilton and his Federalist delegates are outnumbered in the New York

State ratification convention. Hamilton and John Jay take leading roles in support of ratification. Ultimately, New York State's support is not needed to ratify the Constitution. New York is the 11th state to ratify the Constitution.

4/1789: President George Washington appoints Hamilton as the first secretary of

the treasury. 12/1790: Hamilton submits a report calling for the chartering of a national bank. 9/1794: Hamilton takes a leading role in the suppression of the Whiskey

Rebellion. 1/1795: Hamilton submits his final financial report to Congress and resigns as

treasury secretary soon afterward. He returns to New York where he establishes a successful law practice.

7/1798: Hamilton is appointed Major General and functions as Inspector General

(Second in Command) of the Army during the Quasi-War with France. 10/1800: Hamilton writes a private essay criticizing a member of his own political

party, President John Adams. Aaron Burr obtains a copy and publicly and widely publishes it. Adams is not re-elected.

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2/1801: Hamilton helps Thomas Jefferson win the contested presidential election of 1800 over Aaron Burr.

11/1801: Hamilton founds the New York Evening Post. 4/1802: Hamilton, is concerned for the welfare of the country. He writes James

Bayard and proposes a Christian Constitutional Society as a means of supporting the Constitution through the dissemination of information and the election of fit men.

7/1803: In The People v. Harry Croswell (an editor accused of libeling President

Jefferson) Hamilton argues that "The Liberty of the Press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on government, on magistrates, or individuals." Though Croswell lost this appeal, Hamilton's argument leads to a law that establishes his contention.

3/1804: Burr decides to run for governor of New York. He is opposed by

Jefferson, Hamilton and the Clintons of NY. Burr loses. A published letter asserts that Hamilton has expressed negative opinions of Burr. Burr writes to Hamilton demanding an explanation.

6/1804: Burr challenges Hamilton to a duel to be held in Weehawken, New

Jersey. 7/11/1804: Hamilton accepts Burr's challenge and the two men meet in Weehawken,

New Jersey. According to a witness, Hamilton's weapon discharged after he was hit by Burr's shot. Earlier, Hamilton had written that his "scruples as a Christian" forbade his taking of another's life.

7/12/1804: Hamilton dies in New York City, leaving behind his wife, Elizabeth

Schuyler Hamilton, seven children and a nation in shock over his untimely death.

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HAMILTON: NOT THE MUSICAL Excerpted from Alexander Hamilton and James Madison: An American Dialogue

Donald Scarinci of Scarinci Hollenbeck LLC I. AMERICAN PRECURSORS TO THE CONSTITUTION OF THE UNITED

STATES THAT INFLUENCED THE FOUNDERS

Social Contract Theory is the hypothesis of the American Experiment. The American colonists assumed that all citizens are born free, but they forgo certain freedoms to enjoy the benefits of society. By surrendering certain freedoms, the colonists, and later the colonies, could operate as one group and not just as a collection of individual interests. Settling far away from the power centers of Europe, the colonists could explore the practical realities of Enlightenment political thought. While their European contemporaries described the contract as the unwritten ideals of their traditions, the colonists wrote out the contract. In fits and false starts, the colonists would learn social contract conception and drafting through experience. In true Enlightenment fashion, the colonists learned inductively. The experiment began with only a few hundred people, but a century and a half later, the experiment was conducted among the several states. From the outset, the Pilgrims postulated this theory as the correct assumption of the human experience. As has been true of most American agreements, The Mayflower Compact arose from necessity. Fundamentally, the Pilgrims were not so, but colonists seeking a new societal agreement whereby they could practice their understanding of Christianity. Sailing from Plymouth, they had intended and had the legal agreements to colonize Virginia. However, encountering uncooperative seas and running low on beer, which kills bacteria, the colonists landed in Massachusetts. Realizing that they had no legal authority to colonize the area, some openly wondered whether they should "use their own liberty," since they were not obligated to any authority. Most understood that if they all adopted this reasoning, chaos would ensue and death would follow. Appreciative of the grim realities of the situation, the colonists agreed to act together for their collective advantage and protection. Rudimentary by even their standards, The Mayflower Compact, stating that a body politic be established for the benefit of all its adherents, secured the colonists against a hostile environment, hostile neighbors, and themselves. When England responded with approval of the colony, the need for the Compact disappeared. Nonetheless, the idea that people could come together and agree to the most basic tenants of society never left the American psyche. Only a generation after the Compact, the colonies of Plymouth, Connecticut, New Haven, and Massachusetts Bay created the United Colonies of New England. Primarily for protection against hostile tribes and the Dutch colonies to the South, the confederation had the larger goal of resolving inter-colonial disputes. Analogous to the leagues and confederations of the Ancient Greek poleis, it failed in similar fashion. The largest of the confederation, Massachusetts, did not necessarily need to seek outside help and cooperation, as it did not want to be considered first among equals. From the Massachusetts point of view, it gave up

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an unequal amount of freedom for the benefits received. For their part, the smaller colonies would not want to give Massachusetts a special status lest it become a hegemon. The practical reality of this inherently unfair social contract manifested itself only ten years after its formation when Massachusetts refused Connecticut's call for military assistance against the Dutch. Lacking both legal and illegal means to enforce the agreement, the colonies realized that it was irreparably flawed. While a failure in practical respects, the Union demonstrated a willingness among the colonies to do as its colonists had done – join together for commonality, security, and prosperity. Indeed, that willingness was so avid that the question is not "why did Massachusetts default," but rather "why did Massachusetts join at all." Brought together by the shared hardship of war a few generations later, the thirteen colonies would demonstrate remarkable foresight making the written social contract the governing instrument of a nation. After the War of Independence, the thirteen American colonies formed a confederation. The Articles of Confederation contained the same fundamental flaw that has doomed such agreements from the beginning of civilization to the present day. That is, without a fair and meaningful surrender of rights when compared against the benefits obtained, an agreement exists only so long as it continues to be in the interest of each signatory. The Articles provided the colonies with an overall government resembling more the United Nations than a binding contract with fair consideration. It gave the colonies a common place to meet, discuss, and propose solutions to the issues of the day. Because the colonies would not make true concessions of their sovereignty, each possessed a de facto liberum veto against the federal government. Thus, when the federal government affected policy, it had to answer to the interests of each state if it wished to move the policy forward. While the benefits of such an organization are clearly better than no organization, the fragility inherent in crafting solutions over avoiding the zero-sum game of power was not equal to the task of creating a nation.

Thus, when the Founding Fathers grasped the evident failings of The Articles, some called for a new agreement among the several states. Rather than a Greek league, as the Union and Articles had been, the new agreement more closely followed the basic concepts of the Compact. The United States could not have it both ways. If the states were to retain their liberty, then no pact would ever ensure their continuing fraternity. If the states were to retain their fraternity, then they had to be brought together as equals in one society. Attending to these thorny problems, the Founding Fathers drew from the lessons and ideas of social contract. In a fair exchange, the states, like citizens, must surrender some of their sovereignty to the organization to bind them so as to enjoy good order, security and prosperity among the several states and among each other.

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II. UNITED STATES SUPREME COURT CASES DECIDED IN THE LIFETIME OF HAMILTON AND MADISON

A. Hayburn's Case: The Issue of Justiciability

Hayburn's Case, 2 U.S. 409 (1792) is one of the earliest decisions of the U.S. Supreme Court. Although the Judiciary Act of 1789 authorized the creation of the Court, the justices did not consider their first case until 1792. Hayburn's Case presented the Court's first opportunity to decide the justiciability of a legal matter under Article III of the U.S. Constitution, which refers to the Court's authority to adequately resolve a dispute. In the end, the justices never rendered a final decision. 1. The legal background.

Under the Invalid Pensions Act of 1792, Congress required the United States Circuit Courts to hear disability pension claims filed by Revolutionary War veterans. The statute mandated that the courts determine the monthly payments owed to the veterans based on their degree of disability and certify the findings to the secretary of war, who was authorized to reject claims if he suspected "imposition or mistake." Five of the then-six justices of the Supreme Court, who were also serving as circuit judges, wrote letters to President George Washington in which they declined to hear the claims and questioned the constitutionality of the Invalid Pensions Act. They argued that the duties imposed by the act were not judicial.1 John Jay, William Cushing, James Wilson, John Blair, Jr., and James Iredell, who served as members of the United States Circuit Courts for the Districts of New York, Pennsylvania and North Carolina, wrote:

[C]ourts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) [2 U.S. 402, 413] any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires.

The justices further maintained that authorizing the Executive Branch to oversee their judicial findings, and potentially reversing or revising the decisions, violated the separation of powers set forth in the first three articles of the Constitution. "And we beg leave to add, with all due deference, that no decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion, or even

1 https://constitutionallawreporter.com/article-03-section-01/judicial-review/

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suspension, by the Legislature itself, in whom no judicial power of any kind appears to be vested, but the important one relative to impeachments," the justices wrote to President Washington.2 In the wake of the justices' refusal to consider the applications, United States Attorney General Randolph filed a motion for mandamus in the Supreme Court to direct the circuit court in Pennsylvania to proceed on William Hayburn's pension petition.

2. The Court's opinion.

The Attorney General initially brought his petition ex officio, without an application from any particular person, but with a view to procure the execution of an act of Congress. In response to questions from the justices regarding his authority to bring the motion, Randolph reportedly "entered into an elaborate description of the powers and duties of his office." When several justices remained unconvinced, the Attorney General returned to the Court as Hayburn's attorney. As the legal representative of an interested party, Randolph challenged the Circuit Court's ability to defy an act of Congress and, in doing so, deny Hayburn his pension. The Court stated that it would hold the motion under advisement until the next term; however, it never published a decision, as Congress amended the Pension Act to rectify the offending provisions. Nonetheless, the Hayburn's Case set the stage for the Supreme Court to later find statutes enacted by Congress unconstitutional.

B. Chisholm v. Georgia: State Sovereign Immunity Prior to the Eleventh

Amendment

Chisholm v. Georgia, 2 U.S. 419 (1793)3 is one of the first important decisions issued by the U.S. Supreme Court. The case, however, is not widely known or studied in constitutional law classes because its main holding, which abrogated state sovereign immunity for suits by citizens of other states, was quickly superseded by the ratification of the Eleventh Amendment.4 1. The facts of the case.

In 1792, a South Carolina businessman, Alexander Chisholm, sued the state of Georgia in the U.S. Supreme Court. As the executor of the estate of Robert Farquhar, Chisholm alleged that

2 (http://press-pubs.uchicago.edu/founders/documents/a3_2_1s31.html) 3 http://scholar.google.com/scholar_case?case=1448810606414351612&hl=en&as_sdt=2& as_vis=1&oi=scholarr 4 (https://constitutionallawreporter.com/amendment-11/)

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the state owed him money for goods Farquhar provided during the American Revolution. In response to the suit, Georgia maintained that it was a sovereign state and, therefore, not subject to the authority of the federal courts. Accordingly, the key question before the justices was whether Georgia was subject to the jurisdiction of the federal courts.

2. The Court's decision.

By a vote of 4-1, the Court answered in the affirmative, finding that a State is suable by citizens of another State. In support of the decision, the majority pointed to Article III, Section 2 of the Constitution, which states:

The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or 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 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 and citizens thereof and foreign states, citizens or subjects.

According to the justices, the inclusion of "controversies between a State and citizens of another State" nullified the States' sovereign immunity and authorized the federal courts to hear disputes between private citizens and States. "The extension of the judiciary power of the United States to such controversies appears to me to be wise, because it is honest and because it is useful," Chief Justice John Jay wrote in his opinion.5 "It is honest because it provides for doing justice without respect of persons, and, by securing individual citizens as well as States in their respective rights, performs the promise which every free government makes to every free citizen of equal justice and protection." The Chief Justice went on to explain that abrogating a state's immunity is useful because it "brings into action and enforces this great and glorious principle – that the people are the sovereign of this country, and consequently that fellow citizens and joint

5 (https://supreme.justia.com/cases/federal/us/2/419/case.html)

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sovereigns cannot be degraded by appearing with each other in their own courts to have their controversies determined." In 1795, the states responded to the Chisholm decision by ratifying the Eleventh Amendment, which provides: "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 by citizens or subjects of any foreign state." The amendment ensured that individual states could no longer be defendants in federal court lawsuits prosecuted by citizens from other states.

C. Hollingsworth v. Virginia: The President's Role in Constitutional

Amendments

In Hollingsworth v. Virginia, 3 U.S. 378 (1798),6 the U.S. Supreme Court held that the Eleventh Amendment was valid, even though the President of the United States had not formally sanctioned it. While the rationale of the Court has been debated, the basic principle of the case – that the president's approval is not required to amend the Constitution – remains good law. 1. The facts of the case.

Levi Hollingsworth owned shares in the Indiana Company, a land speculation business that was embroiled in a property dispute with the State of Virginia. After the U.S. Supreme Court ruled in Chisholm v. Georgia (1793)7 that a state could be sued in federal court by a citizen of another state, Hollingsworth replaced the original plaintiff in the case. In response to the Supreme Court ruling, lawmakers proposed the Eleventh Amendment, which was subsequently ratified by the states. Hollingsworth, who was represented by William Tilghman and William Rawle, argued that the Eleventh Amendment was invalid because the president had not approved it, noting: "Upon an inspection of the original roll, it appears that the amendment was never submitted to the president for his approbation." His lawyers further maintained that the Constitutional amendment should not apply to his suit because it had been consummated prior to its ratification.

2. The legal background.

The two questions before the Supreme Court were whether the Eleventh Amendment was constitutional and whether the Eleventh Amendment only applied to future suits.

6 (https://law.resource.org/pub/us/case/reporter/US/3/3.US.378.html) 7 (https://en.wikipedia.org/wiki/Chisholm_v._Georgia)

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a. Constitutionality of the Eleventh Amendment in Hollingsworth v. Virginia.

Under Article 5 of the Constitution, "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution." The document is silent with respect to the role of the president in amending the Constitution. Nonetheless, Tilghman and Rawle argued that the president's approval was necessary pursuant to the Presentment Clause, Article 1, Section 7, which states:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

While the attorney general acknowledged that the concurrence of the president is required in matters of infinitely less importance, such as ordinary legislation, he maintained that the Eleventh Amendment was properly proposed. He argued:

But has not the same course been pursued relative to all the other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the President with a qualified negative on the acts and resolutions of Congress.

b. Application of the Eleventh Amendment in Hollingsworth v.

Virginia.

Hollingsworth's attorneys further argued that the Eleventh Amendment only governed future cases. They asserted that applying the amendment retrospectively would run contrary to the Constitution's prohibition of ex post facto laws. The attorney general disagreed. "The policy and rules, which in relation to ordinary acts of legislation,

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declare that no ex post facto law shall be passed, do not apply to the formation, or amendment, of a constitution," he argued. "There can be no amendment of the constitution, indeed, which may not, in some respect, be called ex post facto; but the moment it is adopted, the power that it gives, or takes away, begins to operate, or ceases to exist."

3. The Court's decision.

In a unanimous decision, the Supreme Court held that the Eleventh Amendment was properly enacted and binding on cases already pending prior to its ratification. "The amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state," the opinion states. The Court did not provide an explanation for its decision. The written opinion consists of the arguments raised by the Attorney General, as well as the following statement by Justice Samuel Chase: "There can, surely, be no necessity to answer that argument. The negative of the president applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution." Legal scholars further note that because all of the prior amendments had been approved without the approbation of the president, a full explanation of the Court's decision was unnecessary.

D. Talbot v. Janson: Supreme Court Recognizes Dual Citizenship in 1795

In Talbot v. Janson, 3 U.S. 133 (1795),8 the U.S. Supreme Court ruled that the Court's jurisdiction extended to the seas. The Court also held that Americans who gain citizenship of another country do not waive their U.S. citizenship status. 1. The facts of the case.

The case involved a libel suit against Edward Ballard, the captain of an armed vessel, which was transporting cargo on behalf of the Netherlands. On May 16, 1794, the ship and its cargo were usurped by the L'Ami de la Point at Petre, which was commanded by Captain William Talbot. He claimed to take her as the property of an enemy of the French Republic, under whose authority the capture was alleged to be made. The owner of the captured Dutch vessel alleged that Ballard was a native of Virginia and a United States citizen. The suit further maintained that Ballard did not legally have any commission to capture Dutch vessels or

8 (https://www.law.cornell.edu/supremecourt/text/3/133)

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property, and, therefore, the capture directly violated a treaty between the U.S. and Holland. Because a capture without a commission, or as pirates, could not divest the property of the original, bona fide owners, the ship owner sought restitution for the cargo. In his defense, Ballard stated that he had become a citizen of the French Republic and received a commission as a privateer under the authority of the French Republic, which was at war with Holland. Thus, the central issue in the case was the citizenship of Talbot and Ballard, as well as whether the seized Dutch ship and its cargo were property of the United States.

2. The Court's decision.

The Court first held that its jurisdiction extended beyond the territorial land and into the open seas. Comparing piracy and plunder to an act of trespass, Justice James Iredell wrote:9

This is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part, as it subsisted either before the act of Congress on the subject, or since that has provided a particular manner of enforcing it,) as well as of the law of nations generally; that I cannot entertain the slightest doubt, but that upon the case of the libel, prima facie, the District Court had jurisdiction.

The Court also recognized that dual-citizenship is possible, rejecting the argument that Ballard and Talbot were no longer American citizens. In reaching this decision, the Court held that an act of expatriation must be bona fide. "I do not think that merely taking such an oath, and being admitted a citizen there, in itself, is evidence of a bona fide expatriation, or completely discharges the obligations he owes to his own country," Justice Iredell explained in his opinion. With regard to the confusion that might arise regarding the citizenship of an individual, Justice Iredell suggested:

If the Legislature had prescribed a mode, everyone would know, whether it had or had not been pursued, and all rights, private as well as public, would be equally guarded; but upon the present doctrine, no rights are secured, but those of the expatriator himself.

9 (https://en.wikipedia.org/wiki/James_Iredell)

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E. Calder v. Bull: The Ex Post Facto Clause

In Calder v. Bull, 3 U.S. 386 (1798),10 the U.S. Supreme Court first interpreted the ex post facto clause of the United States Constitution. The justices held that the clause only applies to certain criminal acts. 1. The facts of Calder v. Bull.

Calder v. Bull centered around Caleb Bull and his wife, the stated beneficiaries in the will of Norman Morrison, when they were denied an inheritance by a Connecticut probate court. The court also rejected the Bulls' appeal because it was not made within eighteen months of the original ruling, as required under Connecticut law. Thereafter, the Connecticut legislature removed the restriction at the Bulls' request. On appeal, the court ruled in favor of the Bulls. Calder, who had initially received the inheritance, appealed to the U.S. Supreme Court, alleging that the law passed by the Connecticut legislature that granted the new hearing was an ex post facto law, prohibited by the Constitution of the United States.

2. The legal background.

Article 1, §9 and §10, of the U.S. Constitution prohibits ex post facto laws. The Latin phrase for "from a thing done afterward" refers to laws that apply retroactively. Section 9 prohibits the federal legislature from passing an ex post facto. Meanwhile, §10 states:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

3. The Court's decision.

In Calder v. Bull, the Supreme Court ultimately concluded that the Connecticut statute was not an ex post facto law. In his opinion, Justice Samuel Chase clarified that the definition of ex post facto laws is fairly technical.11 "Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law," he noted. Justice William Paterson agreed. He wrote, "The words, ex post facto, when applied to a law, have a technical

10 (https://www.law.cornell.edu/supremecourt/text/3/386) 11 (https://en.wikipedia.org/wiki/Samuel_Chase)

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meaning, and in legal phraseology, refer to crimes, pains, and penalties." As further detailed by Justice Chase, only the following types of criminal laws should be considered ex post facto laws:

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

The Court also made another significant ruling on an issue of first impression. The justices held that the Court lacked the authority to determine whether an act of a state legislature violated that state's constitution. As explained in Justice Chase's opinion, "This court has no jurisdiction to determine that any law of any state Legislature, contrary to the Constitution of such state is void."

F. New York v. Connecticut: Court's First Exercise of Original Jurisdiction

In New York v. Connecticut, 4 U.S. 1 (1799),12 the U.S. Supreme Court first exercised its original jurisdiction to decide a legal dispute between two states. The dispute involved a strip of land over which the states of New York and Connecticut both claimed jurisdiction. 1. The facts of New York v. Connecticut.

The New York v. Connecticut case involved a tract of land known as the "Connecticut Gore" region, over which New York and Connecticut both alleged ownership and subsequently sold land parcels to third parties. The State of Connecticut granted the land to Jeremiah Halsey and Andrew Ward, who agreed to complete the construction of Connecticut's new state house in exchange for the property interest. The men formed a land development company, which subsequently sought to remove several New York residents who were living on the Connecticut Gore by filing an action for ejectment in the United States Circuit Court for the District of Connecticut.

12 https://scholar.google.com/scholar_case?case=3942349128024448500&hl=en&as_sdt= 6&as_vis=1&oi=scholarr

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The defendants objected to the suit, arguing that the land was owned by the State of New York and therefore, any dispute must be decided by its courts. After a number of procedural rulings regarding the proper forum for the suit, the State of New York filed a bill in equity against Connecticut and the plaintiffs for an injunction to stay the ejectment proceedings.

2. The legal background.

Article III of the U.S. Constitution establishes the Supreme Court's original jurisdiction. The term refers to cases that proceed directly to the Court rather than first proceeding through the appellate process. Pursuant to Article III, 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.

3. The Court's decision.

The Supreme Court concluded that sufficient notice was provided. As explained by Chief Justice Oliver Ellsworth, "The design and effect, however, of injunctions, must render a shorter notice reasonable notice, in the case of an application to a Court, than would be so construed, in most cases of an application to a single Judge." Nonetheless, the Court denied the injunction after finding that the State of New York did not have standing to bring the suit because it was not a party to the ejectment suits it was seeking to enjoin. "[A]s the State of New-York was not a party to the suits below, nor interested in the decision of those suits, an injunction ought not to issue," the Court held. Accordingly, the Court found that the dispute was not truly between the two states after all.

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G. Talbot v. Seeman: The Power to Declare War

In Talbot v. Seeman, 5 U.S. 1 (1801),13 the U.S. Supreme Court considered the circumstances under which salvage rights attach to a neutral vessel captured by enemy forces and then recaptured by the United States Navy. The Court's decision, written by Chief Justice John Marshall, also addressed Congress' power to declare war.

1. The facts of Talbot v. Seeman.

Silas Talbot, Esq., on behalf of himself and the officers and crew of the Constitution, a U.S. vessel, brought a libel for salvage against the ship Amelia, the property of merchant citizens of Hamburg. The vessel was recaptured on the high seas by the Constitution on September 15, 1799, after being captured nine days prior by a French corvette, while on her voyage from Calcutta to Hamburg. The captors placed a prize master and men on board of the Amelia, and ordered her to St. Domingo. On her re-capture, by Captain Talbot, she was sent to New York. The district court allowed salvage to the libellants, and the circuit court reversed the decree. The vessel's owner, Hans Frederick Seeman, maintained that Captain Talbot had no right to interfere with the Amelia because she was a neutral vessel and not liable to condemnation by the laws of nations. Seeman further argued that salvage is only due when a benefit has been conferred, and here none was received.

2. The legal background.

The question before the Supreme Court was whether Talbot was entitled to salvage. Salvage is the compensation paid to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture. The three required elements of a salvage claim are: 1) A marine peril; 2) Service voluntarily rendered when not required as an existing duty or from a special contract; and 3) Success in whole or in part, or that the service rendered contributed to such success. The taking must also be lawful. As explained by Chief Justice Marshall:

On a recapture, therefore, made by a neutral power, no claim for salvage can arise, because the act of retaking is a hostile act, not justified by the situation of the nation to which the vessel making the recapture belongs, in relation to that from the possession of which such recaptured vessel was taken.

13 https://scholar.google.com/scholar_case?case=14129376912730538180&hl=en&as_sdt= 6&as_vis=1&oi=scholarr

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3. The Court's decision.

The U.S. Supreme Court held that the recapture was lawful and ordered salvage be paid to Talbot. Chief Justice John Marshall authored the Court's opinion, which for the first time was labeled "The Opinion of the Court," thereby officially ending the practice of the justices all writing separate opinions. The Court first addressed whether the recapture was legal, given that the Amelia was owned by citizens of Hamburg, which was not involved in the Franco-American Naval Conflict of 1798-1800.14 The Court also addressed the situation between the United States and France at the date of the recapture, given that no official war was declared. With regard to the war powers granted by the Constitution, Chief Justice Marshall stated:

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation.

In this case, the Court found that Congress had authorized the military seizure of French ships. The Court further concluded that because the Amelia was an armed vessel commanded and manned by Frenchmen, there was probable cause to bring her in for adjudication. Accordingly, the recapture was lawful. The Court further held that Captain Talbot and his men had saved the vessel from the French and, therefore, should be paid salvage in the amount of one sixth of the vessel's value. "The captured vessel was of such description that the law by which she was to be tried, condemned her as good prize to the captor," the Chief Justice explained. "Her danger then was real and imminent. The service rendered her was an essential service, and the court is therefore of opinion that the recaptor is entitled to salvage."

H. Charming Betsy and the Law of Nations

In Murray v. Schooner Charming Betsy, 6 U.S.64, 2 L.Ed.208 (1804),15 Chief Justice John Marshall stated that "an act of Congress ought never

14 (https://en.wikipedia.org/wiki/Quasi-War) 15 (https://supreme.justia.com/cases/federal/us/6/64/case.html)

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to be construed to violate the law of nations if any other possible construction remains." This early Supreme Court decision creates authority for a rule of statutory construction encouraging American courts to interpret U.S. law consistent with international law where appropriate.

1. The Facts in Charming Betsy.

The Charming Betsy, an American merchant vessel, set sail from Baltimore on April 10, 1800, under the name of The Jane. Upon arrival in St. Thomas, the vessel was sold to Jared Shattuck, who was born in the United States and moved to St. Thomas as a child. He later worked as a merchant, married there, and, in 1797, took an oath of allegiance to Denmark. Jared Shattuck put a cargo on board of the schooner, calling her The Charming Betsy. In Guadeloupe, the vessel was captured by a French privateer and taken as a prize. The American frigate Constellation subsequently recaptured the ship. Its commander, Captain Murray, sold the cargo and brought the vessel to the United States. There, Shattuck was charged with violating a U.S. law prohibiting commercial intercourse between the United States and France. The Non-intercourse Act prohibited trade "between any person or persons resident within the United States or under their protection, and any person or persons resident within the territories of the French Republic, or any of the dependencies thereof." The consul of Denmark claimed that vessel and the cargo were the bona fide property of a Danish subject. The trial court and Circuit Court agreed, ordering that the vessel be restored and the proceeds of the cargo paid to Shattuck.

2. The Court's decision in Charming Betsy.

The U.S. Supreme Court concluded that the recapture was illegal. It specifically held that "the Charming Betsy with her cargo, being at the time of her recapture the bona fide property of a Danish burgher, is not forfeitable in consequence of her being employed in carrying on trade and commerce with a French island." In reaching its decision, the Court held that federal statutes should be interpreted in harmony with international law, which discouraged the capture of neutral nations and their citizens in a declared war. As Chief Justice Marshall explained:16 "An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country." While Chief Justice Marshall did not cite any specific legal authority in support of the holding, it continues to influence

16 (https://constitutionallawreporter.com/us-supreme-court-justices/john-marshall/)

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international law more than two centuries later. The cannon of statutory interpretation is referred to as the Charming Betsy cannon.

I. Fletcher v. Peck and the Contract Clause

In Fletcher v. Peck, 10 U.S. 87 (1810),17 the Marshall Court ruled that an act of the Georgia State legislature that nullified a prior land grant they passed violated the U.S. Constitution. It was the first case in which the U.S. Supreme Court held that a state law violated the federal Constitution. 1. The facts of the case.

The case stems from a property dispute over the Yazoo lands,18 Native American territory claimed by the State of Georgia. In 1795, the Georgia legislature divided the property into four tracts and sold it to four companies. It was later revealed that the lawmakers who had approved the Yazoo Land Act of 1795 were paid bribes for their votes. After the next election, the new legislature passed a bill repealing the Yazoo Land Act and invalidating the transactions. The defendant in the case, John Peck, acquired land that was granted under the Yazoo Land Act. Several years later, he sold the land to Robert Fletcher, attesting that he held clear title to the property. Fletcher later filed suit for breach of contract, alleging that since the original sale of the land had been declared null and void, Peck lacked the authority to sell the land.

2. The legal background.

Article I, §10, clause 1 of the U.S. Constitution (also known as the "Contracts Clause")19 states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The specific section of the Constitution was enacted to prohibit state governments from giving preferential treatment to wealthy

17 (https://constitutionallawreporter.com/wp-content/uploads/2015/06/Fletcher-v.-Peck.pdf) 18 (https://en.wikipedia.org/wiki/Yazoo_land_scandal) 19 (https://constitutionallawreporter.com/article-01-section-10/)

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and influential citizens through legislation, a practice that was common at the time.

3. The Court's decision.

In a unanimous decision, the Supreme Court held that the law repealing the Yazoo Land Act was unconstitutional because the Georgia legislature lacked the authority to invalidate a binding legal contract, even if it had been tainted by bribery. Given that this was the first time the Court struck down a state law, Chief Justice John Marshall treaded carefully20. He wrote:

It is not intended to speak with disrespect of the legislature of Georgia, or of its acts. Far from it. The question is a general question, and is treated as one. For although such powerful objections to a legislative grant, as are alleged against this, may not again exist, yet the principle, on which alone this rescinding act is to be supported, may be applied to every case to which it shall be the will of any legislature to apply it. The principle is this; that a legislature may, by its own act, devest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient.

In reaching its decision, the Court made a clear distinction between laws enacted by the state legislature and contracts executed by the same body. On the one hand, lawmakers are free to undo laws passed by their predecessors. "One legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature," Chief Justice Marshall explained. However, when the law is a contract by nature on which other parties have come to rely, the legislature does not have the same authority. Citing the Contracts Clause's prohibition against passing laws that impair the obligation of contracts, the Court expressly held that states cannot use their legislative power to nullify contracts or grants made by prior legislative acts. In so ruling, the Court reasoned that the provision applies equally to contracts to which the state is a party. Chief Justice Marshall wrote: "Is the clause to be considered as inhibiting the state from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description."

20 (https://constitutionallawreporter.com/us-supreme-court-justices/john-marshall/)

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In light of the above, the Court concluded:

It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

J. Martin v. Hunter's Lessee: The Supreme Court's Authority over State

Courts

In Martin v. Hunter's Lessee, 14 U.S. 304 (1816),21 the U.S. Supreme Court first asserted its authority to overrule a state court decision regarding an issue of federal law. The Court's landmark decision was rooted in the Court's appellate jurisdiction conferred under Article III of the U.S. Constitution, as well as the Supremacy Clause. 1. The facts of the case.

The dispute revolved around the ownership of land in Virginia known as the Northern Neck Proprietary,22 which was originally owned by Lord Fairfax. The state of Virginia seized the land from Fairfax, a British loyalist, during the Revolutionary War and transferred a portion of it to David Hunter. Pursuant to a treaty to end the war, the United States agreed to protect land owned by British loyalists like Fairfax. Thomas Martin, who inherited the land from Fairfax, filed suit in a Virginia state court to eject Hunter from his tract of land. The Virginia court ruled in favor of Martin, but the Virginia Court of Appeals reversed. On appeal to the U.S. Supreme Court, the justices held that Martin was the legal property owner under the treaty executed with Britain. Nonetheless, the Virginia Court of Appeals refused to obey the Supreme Court's ruling. It held:

The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress to establish the judicial courts of the

21 https://scholar.google.com/scholar_case?case=2949122041407056724&hl=en&as_sdt= 6&as_vis=1&oi=scholarr 22 (https://en.wikipedia.org/wiki/Northern_Neck_Proprietary)

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United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States; that the writ of error, in this cause, was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were, coram non judice, in relation to this court, and that obedience to its mandate be declined by the court.

2. The legal background.

The Supreme Court's jurisdiction is set forth in Article III of the Constitution. Pursuant to §1, "The judicial power of the United States shall be vested in one supreme court, and in such other inferior courts as the congress may, from time to time, ordain and establish." Article III, §2, further states:

The judicial power shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the 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 the grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects.

Finally, Article III establishes that "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 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."

3. The Court's decision.

The Supreme Court overturned the Virginia Supreme Court's decision, holding that the Court has appellate jurisdiction over state court cases involving issues of federal law. Justice Joseph Story authored the decision for a unanimous court.23 The Court's

23 (http://www.pbs.org/wnet/supremecourt/personality/robes_story.html)

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decision cited both the text and the spirit of the Constitution. Justice Story explained:

On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one.

The Court's decision rejected the notion that state and federal judiciary were equal with respect to issues of federal law, concluding that the interests of uniformity and federal supremacy supported the Supreme Court's authority to overrule state courts on questions of constitutional law. In so ruling, the Court's decision in Martin v. Hunter's Lessee further solidified the U.S. Supreme Court's position as the highest court in the country.

K. Dartmouth College v. Woodward: The Contracts Clause

In Dartmouth College v. Woodward, 17 U.S. 518 (1819),24 the U.S. Supreme Court held that the U.S. Constitution's Contracts Clause prohibited state legislatures from interfering with individual property rights. Accordingly, the Court invalidated a statute enacted by the State of New Hampshire seeking to alter the charter of Dartmouth College and convert it to a public university. 1. The facts of the case.

In 1769, the British Crown granted a charter to Dartmouth College, which set forth the purpose of the school, established a governance structure, and transferred land to the college. In 1816, the State Legislature of New Hampshire sought to alter the charter without the consent of the college's board of trustees, with the ultimate goal of converting the private college into a public university. The legislative changes increased the number of trustees, authorized the state governor to appoint trustees, created a new state board with the power to veto trustee decisions, and seized the college's book of records, corporate seal, and other corporate property. The trustees of the college filed suit, alleging that the actions of the New Hampshire legislature were unconstitutional.

24 (https://constitutionallawreporter.com/wp-content/uploads/2015/08/Dartmouth-College-v.-Woodward.pdf)

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2. The legal background.

When they ratified the Constitution, the states surrendered a portion of their sovereignty in favor of the federal government. Pursuant to Article I, §10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility…

Of the many limitations placed on the states, the "Contracts Clause" has received the most attention. In basic terms, it prohibits states from making laws that interfere with contracts that have already been created.

3. The Court's decision.

By a vote of 6-1, the Supreme Court sided with Dartmouth College. Chief Justice John Marshall wrote on behalf of the majority, holding:

The charter granted by the British Crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the Constitution of the United States, art. 1, s. 10, which declares that no state shall make any law impairing the obligation of contracts.

In reaching its decision, the majority clarified that the Contracts Clause applied to individual property rights and not to "the political relations between the government and its citizens." "The provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice," Chief Justice Marshall further explained. Applying this reasoning, the Court further held that the state could not interfere with the college's corporate charter because it constituted a contract between private parties. "That a corporation is established for purposes of general charity, or for education generally does not, per se, make it a public corporation, liable to the control of the legislature," the majority concluded. Accordingly, it struck down the New Hampshire law as unconstitutional.

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L. McCulloch v. Maryland: The Necessary and Proper Clause

In McCulloch v. Maryland, 17 U.S. 316 (1819),25 the U.S. Supreme Court held that Congress has broad discretionary authority to implement the powers enumerated in the Constitution under the Necessary and Proper Clause. McCulloch v. Maryland is regarded as one of Chief Justice John Marshall's most influential opinions. 1. The facts of the case.

In 1816, Congress passed legislation establishing the Second Bank of the United States. Because it was a depository of federal funds and authorized to issue notes, many states viewed the national bank as unfair competition and questioned its constitutionality. When state banks began to fail during the depression of 1818, the State of Maryland passed a law that imposed taxes on all banks not chartered in the state. The Second National Bank was the only one. When the Baltimore branch of the Second National Bank refused to pay the taxes, the state of Maryland filed a suit against James W. McCulloch, the bank's cashier. In the lawsuit that followed, he argued that the tax was unconstitutional. Maryland's highest court ruled that the tax was valid, and McCulloch appealed to the U.S. Supreme Court. The issues before the justices were whether Congress had the power to establish a bank and whether the Maryland tax law violated the U.S. Constitution.

2. The legal background.

McCulloch v. Maryland required the Supreme Court to interpret two essential clauses of the U.S. Constitution. The Necessary and Proper Clause26 set forth in Article 1, §8, states:

The Congress shall have 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 the Government of the United States, or in any Department or Officer thereof.

The Supremacy Clause,27 which is found in Article 6, Clause 2, states:

25 (https://constitutionallawreporter.com/2012/05/03/mcculloch-v-maryland/) 26 (https://constitutionallawreporter.com/necessary-and-proper-clause/) 27 (https://constitutionallawreporter.com/article-06/)

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This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

3. The Court's decision.

In a decision that continues to resonate today, the unanimous Court held that the Congress was authorized to establish the Bank of the United States and that the Maryland tax was unconstitutional. Chief Justice John Marshall authored the Court's opinion.28

a. The Necessary and Proper Clause.

With regard to the authority of Congress, the Court recognized the legislative branch's broad discretionary power to implement the powers enumerated in the Constitution, noting that there was nothing in the Constitution that excluded incidental or implied powers. As Chief Marshall eloquently explained,

Let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

The Court further held that since the authority to create a bank was related to the enumerated powers to regulate interstate commerce, collect taxes, and borrow money, the act was deemed constitutional. Chief Justice Marshall wrote:

Although, among the enumerated powers of Government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are entrusted [sic] to its Government.

28 (https://constitutionallawreporter.com/us-supreme-court-justices/john-marshall/)

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b. The Supremacy Clause.

The Court next turned to Maryland's ability to tax the bank, ultimately finding that its actions violated the Supremacy Clause of Article VI of the Constitution. As Chief Justice Marshall explained, "The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land." Because "the power to tax is the power to destroy," the Court held that the state of Maryland had impermissibly interfered with the law of the land. As he further stated, "The States have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national Government." Finally, Chief Justice Marshall confirmed the inferior status of the states in relation to the federal government, an issue that had been questioned by lawyers for the state of Maryland. He wrote, "The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit."

M. Johnson v. M'Intosh: The Power to Grant Land

In Johnson v. M'Intosh, 21 U.S. 543 (1823),29 the U.S. Supreme Court addressed whether Native Americans had the power to give, and of private individuals to receive, title to land.30 The justices ultimately answered in the negative, citing the power of Congress to extinguish aboriginal title. 1. The facts of the case.

The case involved two competing claims to land located in the Northwest Territory, formally part of the colony of Virginia. Thomas Johnson purchased land from Piankeshaw Native American tribes in 1773 and 1775. Johnson's descendants, who had inherited the land, filed an ejectment action against the defendant, William M'Intosh, who had obtained the same land from the federal government. The district court sided with M'Intosh, holding that

29 https://scholar.google.com/scholar_case?case=3104237999990733260&hl=en&as_sdt= 6&as_vis=1&oi=scholarr 30 (http://sadredearth.com/native-america-in-the-courts-of-the-conqueror/#.WR2cto2GOUk)

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M'Intosh's title was superior because Congress granted it. The plaintiffs subsequently appealed to the Supreme Court.

2. The Court's decision.

The Court affirmed the lower court's decision, holding that "the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States." Chief Justice John Marshall authored the Court's opinion. In explaining the Court's decision, the Chief Justice provided a thorough history of the discovery and settlement of the Americas. He specifically highlighted the importance of the discovery rule31 under which the conquering nation holds title to land to the exclusion of all others. Justice Marshall's opinion regarding Johnson v. M'Intosh further detailed the rights of the land's original occupants, stating:

[T]he rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

Thus, following the American Revolution and the treaties that followed, the federal government obtained the "exclusive right…to extinguish [the Indians'] title, and to grant the soil." The Court further held that the "power to grant land must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments."

N. Corfield v. Coryell: The Privileges and Immunities Clause

In Corfield v. Coryell, 6 F. Cas. 546 (1823),32 Supreme Court Justice Bushrod Washington interpreted the Privileges and Immunities Clause of Article 4, §2,33 articulating a list of fundamental rights guaranteed by the U.S. Constitution.

31 (https://en.wikipedia.org/wiki/Discovery_doctrine) 32 (https://constitutionallawreporter.com/wp-content/uploads/2015/09/Corfield-v.-Coryell.pdf) 33 (https://constitutionallawreporter.com/privileges-and-immunities-clause/)

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Although he authored the opinion while sitting as a circuit judge, this early reference to fundamental rights not expressly stated in the Constitution foreshadows Twentieth Century Constitutional law. What is even more interesting about Corfield is that Justice Washington had no problem applying the Article 4, §2 Privileges and Immunities Clause to the states. A decade later, Justice Marshall's opinion in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833),34 held that the Bill of Rights does not apply to the states. Under Marshall's reasoning, the articles, including the privileges and immunities clause, do not apply to the states either, although Corfield was never reversed. Even after the Civil War amendments to the Constitution, when the Court had the opportunity to interpret the Privileges and immunities Clause of the Fourteenth Amendment,35 the Supreme Court did not use either the Article 4, §2 Privileges and Immunities clause or the Fourteenth Amendment Privileges and Immunities clause. Instead the Court chose to use the Fourteenth Amendment Due Process clause36 to find fundamental rights not expressly enumerated in the constitution and make them applicable to the states. 1. The facts of the case.

Mr. Corfield, a citizen of Delaware, challenged the validity of a New Jersey statute which prohibited "any person who is not, at the time, an actual inhabitant and resident in this State" from raking or gathering "clams, oysters or shells" in any of the waters of the State, or on board any vessel "not wholly owned by some person, inhabitant of and actually residing in this State…" Corfield argued that the New Jersey law violated the U.S. Constitution's "Privileges and Immunities Clause." Article IV, §2 of the Constitution specifically states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

2. The Court's decision.

As stated by Justice Washington,37 the central issue in the case was how to define the "privileges and immunities of citizens in the several States." In the court's opinion, the protection afforded by the Constitution extends only to fundamental rights. "We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at

34 (https://www.law.cornell.edu/supremecourt/text/32/243) 35 (https://constitutionallawreporter.com/amendment-14-01/privileges-or-immunities/) 36 (https://constitutionallawreporter.com/amendment-14-01/procedural-due-process/) 37 (https://en.wikipedia.org/wiki/Bushrod_Washington)

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all times, been enjoyed by the citizens of the several States which compose this Union," Justice Washington's opinion explains. While Justice Washington acknowledged that it would be too tedious to list all of the fundamental rights, he provided the following list:

Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…

With regard to specific issues of the case, the court held that the State of New Jersey was not required to grant "co-tenancy in the common property of the State, to the citizens of all the other States." Accordingly, it found the state statute was constitutional. In highlighting the boundaries of the Privileges and Immunities Clause, Justice Washington wrote:

[W]e cannot accede to the proposition . . . that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens.

O. Gibbons v. Ogden: The Commerce Clause

In Gibbons v. Ogden, 22 U.S. 1 (1824),38 the U.S. Supreme Court first held that Congress has the authority to regulate any form of commerce that crosses state lines. The opinion, authored by Chief Justice John

38 (https://www.law.cornell.edu/supremecourt/text/22/1)

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Marshall, is considered the most influential regarding the Commerce Clause.

1. The facts of the case.

The state of New York passed a law granting Robert R. Livingston and Robert Fulton the exclusive right to navigate the waters of the state with steamboats. Through an assignment, Aaron Ogden received the exclusive license to operate his steamboats in the waters between Elizabethtown, among other places in New Jersey, and the city of New York. Ogden sought an injunction against Thomas Gibbons, who operated a steamboat along the same routes between New York and New Jersey. Gibbons possessed a coastal license granted under federal legislation, and his attorney, Daniel Webster,39 argued that Congress had exclusive authority to regulate interstate commerce under the U.S. Constitution. However, a New York court found for Ogden and ordered Gibbons to cease operating his steamships. After the New York Supreme Court affirmed the decision, Gibbons appealed to the U.S. Supreme Court.

2. The legal background.

Pursuant to Article 1, §8, Clause 3, of the Constitution,40 Congress is specifically empowered "to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes." In basic terms, the Commerce Clause41 gives Congress exclusive authority over trade activities among the states and with foreign countries and Indian tribes. Meanwhile, states are free to regulate intrastate commerce that takes place exclusively within its borders. The Founding Fathers included the Commerce Clause in the Constitution to level the playing field between states with lucrative trading ports and those that were landlocked.

3. The Court's decision.

The Supreme Court held that the New York law was unconstitutional as violating the Supremacy Clause,42 which establishes the U.S. Constitution and federal law as the "supreme law of the land." According to the Court, the New York law was "in collision with the acts of Congress regulating the coasting trade, which, being made in pursuance of the Constitution, are supreme,

39 (https://en.wikipedia.org/wiki/Daniel_Webster) 40 (https://constitutionallawreporter.com/article-01-section-08/) 41 (https://constitutionallawreporter.com/commerce-clause/) 42 (https://constitutionallawreporter.com/article-06/)

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and the State laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the States". In reaching its decision, the Supreme Court first interpreted the breadth and reach of the Commerce Clause. With regard to the definition of "commerce," Chief Justice Marshall43 clarified that it extended to the regulations of navigation. "The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself and may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution," he wrote. Accordingly, "The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States.'" The Court also clarified the meaning of the phrase "commerce among the several States," concluding that the word "among" should be interpreted as "intermingled with." Accordingly, the Court held that Congress' power to regulate interstate commerce does not "stop at the external boundary line of each State, but may be introduced into the interior." The Court also addressed the power of Congress, concluding that its authority to regulate commerce is plenary. As Chief Justice Marshall explained:

If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

Taken together, Chief Justice Marshall's broad interpretation of the Commerce Clause cemented Congress' significant power to regulate all things impacting commercial activity that cross state lines. Today, this integral clause of the U.S. Constitution serves as the basis for legislation governing everything from air quality standards to employee wages.

43 (https://constitutionallawreporter.com/us-supreme-court-justices/john-marshall/)

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III. SELECTED CASES DECIDED BY THE ROBERTS COURT THAT INTERPRET SECTIONS OF THE CONSTITUTION THAT WERE KNOWN TO ALEXANDER HAMILTON AND JAMES MADISON

A. Supreme Court Review of the Affordable Care Act Began in 1803

Americans who support and oppose "Obamacare" now find themselves without elected Congressmen to lobby and without the media to influence public opinion. The fate of the Affordable Care Act44 is now in the hands of nine people elected by no one and appointed for life to the job. This leaves some Americans wondering why the United States Supreme Court has this extraordinary power to affirm or set aside this hard fought victory of Barak Obama's first term presidency. Common law legal systems, like the American legal system, are based on precedent. The rule of law determined by the highest court in the land based upon one set of facts must be followed by another court if that same set of facts exists at another place or time. In 1803, the United States Supreme Court considered the facts of Marbury v. Madison, 5 U.S. 137,45 and decided that the Supreme Court has the power to invalidate acts of Congress if they determine those acts to be in conflict with the Constitution of the United States. This legal doctrine is known as "judicial review".46 1. The facts of the case.

The case was brought by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia during the hotly contested presidential election of 1800. Although Marbury's commission was approved, it was not delivered before Adams' term in office ended. When Thomas Jefferson took office, he ordered James Madison, his Secretary of State, not to deliver the commissions signed by his predecessor. Marbury subsequently petitioned the Supreme Court to force Madison's hand through a writ of mandamus, a legal order compelling him to act. In deciding the case, the Supreme Court focused on three specific questions: a. Has the applicant a right to the commission he demands? b. If he has a right, and that right has been violated, do the

laws of his country afford him a remedy?

44 (https://www.hhs.gov/healthcare/about-the-aca/index.html) 45 (https://constitutionallawreporter.com/2012/04/05/marbury-v-madison/) 46 (https://constitutionallawreporter.com/article-03-section-01/judicial-review/)

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c. If they do afford him a remedy, is it a mandamus issuing from this court?

2. The Supreme Court's decision.

The Supreme Court easily answered the first two questions. It first found that Marbury had been properly appointed in accordance with the procedures established by law. Since his commission was approved by the Senate, signed by the President, and sealed by the Secretary of State, the Court concluded, "To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right." The Court further concluded that Marbury was entitled to a legal remedy. As noted in the opinion, "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." While the Court agreed that a mandamus was the proper remedy, it ultimately concluded that it was not authorized to grant it. Its reasoning would form the foundation of the doctrine of judicial review. The justices held that the Judiciary Act of 1789,47 on which Marbury relied to bring his petition to the high court, was unconstitutional. The Court invalidated the law because it extended the Court's original jurisdiction (the power to bring cases directly to the Supreme Court) beyond the scope of the Constitution. Under Article III,48 original jurisdiction is only given to cases "affecting ambassadors, other public ministers and consuls" and to cases "in which the state shall be party." In plain terms, the Supreme Court determined that Congress had overstepped its authority in passing the law, and it was the Court's duty, as the protector of the Constitution, to strike it down. As Chief Justice John Marshall49 wrote:

It is emphatically the province and duty of the Judicial Department [the judicial branch] 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.

47 (http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=196) 48 (https://constitutionallawreporter.com/article-03-section-01/) 49 (https://constitutionallawreporter.com/chief-justices/)

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So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

3. The case's implications.

As I mentioned at the beginning of this post, this decision forms the basis for petitioners to challenge the constitutionality of our laws before the Supreme Court, including the health care law being debated today. In addition to establishing judicial review, the Marbury decision elevated the power of the Supreme Court and started its gradual rise to an equal branch of the federal government.

B. Kansas v. Nebraska and Colorado: A Lesson in Original Jurisdiction

The U.S. Supreme Court recently heard oral arguments in Kansas v. Nebraska and Colorado,50 which involves a tri-state dispute over water rights to the Republican River. While the subject matter of the suit largely boils down to a very high-profile breach of contract, the case is unique because it invokes the Court's original jurisdiction. Most cases on the Supreme Court docket have worked their way up from the state or federal court system. However, some proceed directly to Court as "original" cases. The term refers to the original jurisdiction of the country's highest court. As set forth in Article III of the U.S. Constitution,51 "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." The most famous Supreme Court case addressing the extent of original jurisdiction is Marbury v. Madison,52 which was decided in 1803. In the seminal case, the justices held that the Judiciary Act of 1789 was

50 (http://www.scotusblog.com/case-files/cases/kansas-v-nebraska-and-colorado/) 51 (https://constitutionallawreporter.com/article-03-section-02/) 52 (https://constitutionallawreporter.com/2012/04/05/marbury-v-madison/)

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unconstitutional because it extended the Court's original jurisdiction beyond the scope of the Constitution.53 It is one of the most significant cases ever decided by the Supreme Court because it created the principle of judicial review, under which the Court can nullify an act of Congress if its violates the Constitution. As a practical matter, original suits are filed directly with the U.S. Supreme Court. Once the justices accept the case, they often delegate much of the work to a "special master" who is tasked with gathering the facts of the case, evaluating the legal arguments raised by the parties, and filing a report with the Court. The Court then renders a final decision. The case currently before the Supreme Court involves a compact to allocate the water supply of the Republic River Basin among Colorado, Kansas, and Nebraska. In the late 1990s, Kansas alleged that Nebraska violated the compact by allowing groundwater pumping. The Court referred the dispute to a special master, and, after several years of litigation, the states ultimately reached a settlement. The current controversy revolves around Nebraska's alleged violation of the terms of the settlement and the appropriate remedy for its noncompliance. Having exhausted the arbitration procedures set forth in the settlement agreement, the case is back before the Supreme Court justices.

C. NFIB v. Sebelius: ACA Survives First Constitutional Challenge

In NFIB v. Sebelius, 567 U.S. 1 (2012),54 the U.S. Supreme Court considered its first constitutional challenge to the Affordable Care Act. By a vote of 5-4, the Court held that the statute's "individual mandate" provision was a valid exercise of Congress's power under the Taxing Clause.

1. The facts of NFIB v. Sebelius.

Congress passed the ACA in 2010 in an effort to increase the number of Americans covered by health insurance and decrease the cost of health care. Under the statute's individual mandate provisions, most Americans are required to maintain "minimum essential" health insurance coverage. For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the law required the purchase of insurance from a private company. Beginning in 2014, those who do not comply with the mandate must pay a "penalty" to the Internal Revenue Service with an individual's taxes.

53 (https://constitutionallawreporter.com/2012/04/05/supreme-court-review-of-the-affordable-care-act-began-in-1803/) 54 (https://constitutionallawreporter.com/wp-content/uploads/2015/10/NFIB-v.-Sebelius.pdf)

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The ACA also expanded the scope of Medicaid program and increased the number of individuals the States must cover. The healthcare law increased federal funding to cover the States' costs in expanding Medicaid coverage. However, if a State failed to comply with the new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. Twenty-six states, several individuals, and the National Federation of Independent Business filed a lawsuit challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress's spending power, but concluded that Congress lacked authority to enact the individual mandate.

2. The majority decision in NFIB v. Sebelius.

A slim majority of the Court voted to uphold the individual mandate, while also concluding that the Medicaid expansion was unconstitutional. Chief Justice John Roberts wrote on behalf of the majority, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined the opinion. In deciding the fate of the ACA,55 the majority first concluded that the individual mandate was not a valid exercise of Congress's power under the Commerce Clause or the Necessary and Proper Clause. With regard to the Commerce Clause, Chief Justice Roberts emphasized that the Constitution grants Congress the power to "regulate Commerce," which implies the existence of commercial activity to be regulated. "The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce," he wrote.

As to the Necessary and Proper Clause,56 the Chief Justice noted that "[each of this Court's prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power." In the case of the ACA, the majority concluded that the individual mandate "vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it." Accordingly, it found that even if the provision was a necessary part of the healthcare reform law, it was certainly not proper.

55 (https://constitutionallawreporter.com/2012/04/05/supreme-court-review-of-the-affordable-care-act-began-in-1803/) 56 (https://constitutionallawreporter.com/necessary-and-proper-clause/)

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In ultimately upholding the law, the majority determined that the individual mandate was within Congress's power under the Taxing and Spending Clause.57 Focusing on the substance and application of the "penalty" imposed under the individual mandate rather than the precise wording of the statute; the majority held that "the shared responsibility payment may for constitutional purposes be considered a tax." In support of the Court's decision, Chief Justice Roberts noted:

The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.

With regard to the Medicaid expansion, a majority held that the provision was not a valid exercise of Congress's spending power because it forced states to either accept the expansion or risk the loss of existing Medicaid funding. As Chief Justice Roberts explained:

As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.

3. The Dissent of NFIB v. Sebelius.

Justices Antonin Scalia, Stephen Kennedy, Clarence Thomas, and Samuel Alito joined an unsigned dissent. It maintained that the individual mandate violated the Constitution because Congress exceeded its powers under the Commerce Clause. The dissenting justices further argued that by characterizing the individual mandate as a tax rather than a penalty, the majority essentially rewrote the law in an effort to uphold its constitutionality, which represented an abuse of judicial power.

D. Burwell v. Hobby Lobby: Divided Court Strikes down ACA's Contraception

Mandate

On the last day of the session, the U.S. Supreme Court issued its much-anticipated decision in Burwell v. Hobby Lobby.58 By a vote of 5-4, the

57 (https://constitutionallawreporter.com/article-01-section-08/) 58 (https://constitutionallawreporter.com/wp-content/uploads/2014/08/Burwell-v.-Hobby-Lobby.pdf)

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justices ruled that the Affordable Care Act's (ACA) so-called "contraception mandate" violates the Religious Freedom Restoration Act when applied to closely held corporations. 1. The facts of the case.

The Court decided several challenges to a provision of the ACA59 that requires employers with more than fifty employees to provide coverage for certain health care services related to reproduction, including contraceptives and "morning after" pills. Employers who did not comply with the contraception mandate faced steep fines. The plaintiffs, owners of closely held for-profit corporations, argued that they have sincere Christian beliefs that life begins at conception, and it would violate their religion to facilitate access to contraceptive drugs or devices that operate after the egg is fertilized. They sued under the Religious Freedom Restoration Act of 1993 (RFRA) and the Free Exercise Clause of the First Amendment, seeking to enjoin application of the contraceptive mandate insofar as it required them to provide health coverage for the four objectionable contraceptives.

2. The legal background.

The RFRA prohibits the federal government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest. In Hobby Lobby, the Tenth Circuit Court of Appeals ruled that for-profit corporations have religious liberty for the purpose of the RFRA and the First Amendment. Conversely, in Conestoga Wood Specialties, the Third Circuit Court of Appeals rejected the company's challenge to the contraception mandate, holding that for-profit, secular corporations cannot engage in religious exercise. The circuit split made the Supreme Court's intervention necessary.

3. The majority decision.

The majority concluded that the contraceptive mandate violates RFRA,60 as applied to closely held corporations. In reaching the decision, the Justices first addressed whether the corporations could bring a challenge under the RFRA in the first place. The majority rejected the government's argument that owners cannot sue because the regulations apply only to the companies, holding that the statute was intended to be applied broadly and protect the rights of the people associated with closely held corporations.

59 (https://constitutionallawreporter.com/2014/02/20/will-court-precedent-impact-latest-aca-lawsuit/) 60 https://origin-www.bloomberglaw.com/public/desktop/document/Burwell_v_Hobby_Lobby_ Stores_Inc_No_13354_and_13356_US_June_30_20)

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Ruling otherwise, Justice Samuel A. Alito, Jr. wrote, would force companies to "either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations." With regard to whether corporations can "exercise" religion, the Court also rejected the notion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money, noting that state laws authorize corporations to "pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners' religious principles." As for the enforceability of the ACA's contraception mandate, the majority concluded that the provision imposed a substantial burden on the corporation's ability to exercise their religious beliefs and is not the least restrictive way to further the government's interest. With respect to the burden, the Court noted that Hobby Lobby and Conestoga would face millions of dollars in penalties if they failed to provide the birth control at issue. Meanwhile, in its least-restrictive-means analysis, the Court noted that the government had other options; they include assuming the cost of providing the four contraceptives to women unable to obtain coverage due to their employers' religious objections or extending the accommodation that the Department of Health and Human Services has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate.

4. The dissent.

In a strongly worded dissent, Justice Ruth Bader Ginsberg expressed concern about the breadth of the majority's opinion, suggesting that it had "ventured into a minefield." Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined her opinion. According to the dissenters, Congress did not intend for RFRA to exempt corporations from laws that apply across the field. Ginsburg warned that the majority's interpretation could allow businesses "to opt out of any law . . . they judge incompatible with their sincerely held religious beliefs." To continue reading on the subject of the Supreme Court's decision on Burwell v. Hobby Lobby, check out my article on Ginsberg Dissent on Obamacare Contraception Choice at http://observer.com/2014/07/ginsberg-dissent-on-obamacare-contraception-choice/. See also, How Will Hobby Lobby Decision Impact New Jersey Businesses? on Business Law News61 for further information on this recent Supreme Court decision.

61 (http://www. businesslawnews.com/how-will-hobby-lobby-decision-impact-new-jersey-businesses/)

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E. Municipal Sign Ordinance Violates the First Amendment in Reed v. Town of Gilbert

On June 18, 2015, the U.S. Supreme Court held that an Arizona town's sign ordinance violates the First Amendment. The Court's unanimous decision in Reed v. Town of Gilbert62 established that regulations that are facially content-based must be subject to strict scrutiny regardless of their motivations. 1. The facts of Reed v. Town of Gilbert.

Gilbert, Arizona (Town), has a comprehensive sign code ("Sign Code") that prohibits the display of outdoor signs without a permit but exempts certain categories of signs. "Ideological Signs" is defined as signs "communicating a message or idea" that do not fit in any other sign code category, may be up to twenty square feet and have no placement or time restrictions. "Political Signs" is defined as signs "designed to influence the outcome of an election." These signs may be up to thirty-two square feet and may only be displayed during an election season. "Temporary Directional Signs" is defined as signs directing the public to a church or other "qualifying event." The temporary directional signs have even greater restrictions: no more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than twelve hours before the "qualifying event" and one hour after. Good News Community Church (Church) and its pastor, Clyde Reed, held church services at various temporary locations around the Town. The Church posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. After failing to reach a settlement with the town, the Church filed suit against the town, alleging that the town imposes stricter regulations on church signs in violation of the First Amendment.

2. The legal background.

Under long-standing First Amendment precedent, content-based restrictions on speech are closely scrutinized and upheld only if they are "narrowly tailored" to serve a "compelling government interest." The key issue in Reed v. Town of Gilbert was how courts should determine whether a regulation is content-based or content-neutral. The Ninth Circuit Court of Appeals held that the

62 (https://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf)

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Gilbert ordinance was content-neutral,63 concluding that the "restrictions are based on objective factors… and do not otherwise consider the substance of the sign…" The Supreme Court granted certiorari to address the following question: "Whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs."

3. The Court's decision.

The Supreme Court overturned the Ninth Circuit's decision. It held that the Sign Code's provisions are content-based regulations of speech that do not survive strict scrutiny. In his majority opinion, Justice Clarence Thomas highlighted that speech regulation is content based, and subject to strict scrutiny, if a law applies to a particular speech because of the topic discussed or the idea or message expressed. The same applies to laws that, though facially content neutral, cannot be "justified without reference to the content of the regulated speech," or were adopted by the government "because of disagreement with the message" conveyed. With respect to Gilbert's sign ordinance, the Court found it to be content based on its face. "It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign's communicative content," Justice Thomas explained. The Court further noted that the restrictions in the Sign Code that apply to any given sign depend entirely on the communicative content of the sign. Justice Thomas provided the following example:

If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treaties of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.

Lastly, the Court clarified that a law that is content-based on its face is subject to strict scrutiny regardless of the government's

63 (http://scarincilawyer.com/u-s-supreme-court-hears-arguments-constitutionality-municipal-sign-ordinance/)

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benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech.

F. Citizens United v. Federal Election Commission: Campaign Finance

Reform and the First Amendment

What cuts Campaign Finance Reform and the First Amendment right down the middle? Why it's the case of Citizens United v. Federal Election Commission. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010),64 a sharply divided U.S. Supreme Court held that corporate political spending is protected speech under the First Amendment. The controversial decision has dramatically limited the government's power to enact campaign finance reform. 1. The facts of the case.

Under the Bipartisan Campaign Reform Act of 2002 (BCRA), corporations and unions were prohibited from using their general treasury funds to make independent expenditures for speech that is an "electioneering communication" or that expressly advocates the election or defeat of a candidate. An electioneering communication is defined as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office," is made within thirty days of a primary election, and is "publicly distributed." In McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003),65 the Supreme Court rejected a facial challenge to restrictions on electioneering communications. Its decision largely rested on Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990),66 in which the Court held that political speech may be banned under the First Amendment67 based on the speaker's corporate identity. In January 2008, Citizens United, a nonprofit corporation, released a documentary critical of then-Senator Hillary Clinton, who was seeking the Democratic Presidential nomination. To promote the documentary, Citizens United produced television ads to run prior to the primary election. To avoid incurring penalties under BCRA, Citizens United sought declaratory and injunctive relief, arguing that the campaign finance law was unconstitutional as applied to

64 (https://constitutionallawreporter.com/wp-content/uploads/2013/08/Citizens-United-v.-Federal-Election-Commission.pdf) 65 (https://constitutionallawreporter.com/wp-content/uploads/2015/01/McConnell-v.-Federal-Election-Commn.pdf) 66 (https://constitutionallawreporter.com/wp-content/uploads/2014/07/Austin-v-Michigan-Chamber-of-Commerce.pdf) 67 (https://constitutionallawreporter.com/amendment-01/freedom-speech/)

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Hillary and the ads. The district court ruled in favor of the Federal Election Commission (FEC), and Citizens United appealed.

2. The Supreme Court's decision.

By a vote of 5-4, the majority held that corporations and labor unions have a First Amendment right to make independent expenditures68 that advocate election or defeat of candidates in certain federal elections. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. The majority opinion highlighted that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. It further reasoned that corporations, as associations of individuals, are afforded the same rights as regular citizens. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech," the majority held. In deciding the case, the majority expressly overruled Austin as well as the part of McConnell that upheld BCRA's application to independent corporate expenditures. In a sharply worded dissent, Justice John Paul Stevens argued that the majority "ruling threatens to undermine the integrity of elected institutions across the nation." Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor joined the dissenting opinion.

G. Where Does the Supreme Court Stand on Gun Control? District of

Columbia v. Heller, 554 U.S. 570 (2008)

The tragedy in Sandy Hook, Connecticut, reignited the debate over the most effective means to deter gun violence. As President Obama and Congress began to tackle the controversial issue of gun control, they undoubtedly looked to the U.S. Supreme Court's interpretation of the Second Amendment. The Amendment states, in relevant part: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." While the U.S. Supreme Court had addressed the Second Amendment several times in the course of our country's history, its more recent decision in District of Columbia v. Heller, 554 U.S. 570 (2008),69 will likely carry the most weight. The landmark case was the first to consider an individual's right to keep and bear arms.

68 (https://constitutionallawreporter.com/2012/06/07/citizens-united-v-federal-election-commission/) 69 (https://www.supremecourt.gov/opinions/07pdf/07-290.pdf)

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1. The facts of the case.

The case involved a gun law in the District of Columbia that made it a crime to carry an unregistered firearm and prohibited the registration of handguns, thereby essentially banning them. It further required residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they were located in a place of business or are being used for lawful recreational activities. After his application to register a handgun to keep at home was denied, Dick Heller, a D.C. special policeman, filed the lawsuit. He challenged the regulatory scheme on Second Amendment grounds, arguing that it prohibited the use of "functional firearms within the home."

2. The Supreme Court's decision.

The majority ultimately concluded that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. In reaching their decision, the Justices examined the language of the Second Amendment in great detail. They concluded, "The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms." In support of its conclusion, the Court cited the Second Amendment's drafting history, contemporaneous state consti-tutions and interpretations by scholars, courts, and legislators. It specifically noted, "Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved." Based on this reasoning, the Court concluded that the District of Columbia's ban was unconstitutional. It noted that the "total ban on handgun possession in the home amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense" and, therefore fails to pass constitutional muster. It similarly held that the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock "makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional." The Supreme Court, however, was also quick to note that Second Amendment has its limits. As explained by the Court,

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It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

H. United States v. Windsor: U.S. Supreme Court Overturns DOMA

Ten years to the day after it struck down a Texas sodomy law in Lawrence v. Texas, 539 U.S. 558 (2003),70 the U.S. Supreme Court finally weighed in on the issue of same-sex marriage. In United States v. Windsor, 133 S.Ct. 2675 (2013).71 the Court invalidated the federal Defense of Marriage Act (DOMA) by a vote of 5-4. The majority held that DOMA – which defined "marriage" for all purposes under federal law as "only a legal union between one man and one woman as husband and wife" – was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the U.S. Constitution.72 1. The facts of the case.

The State of New York recognized the marriage of New York residents Edith Windsor and Thea Spyer, who wedded in Ontario, Canada, in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses but was barred from doing so by DOMA. As explained by the Supreme Court, the law provided "rules of construction for over 1,000 federal laws and the whole realm of federal regulations – to define 'marriage' and 'spouse' as excluding same-sex partners." Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied. Windsor filed suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Obama Administration announced that it would no longer defend DOMA's constitutionality. In response, the Bipartisan Legal Advisory Group

70 (https://constitutionallawreporter.com/wp-content/uploads/2013/07/Lawrence-v.-Texas.pdf) 71 (https://constitutionallawreporter.com/wp-content/uploads/2013/07/United-States-v.-Windsor.pdf) 72 (https://constitutionallawreporter.com/the-constitution/)

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(BLAG) of the House of Representatives intervened in the litigation.

2. The Supreme Court's decision.

By a slim 5-4 majority, the Supreme Court struck down DOMA as unconstitutional. Writing on behalf of Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, Justice Anthony Kennedy explained why the law must be struck down. "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government." As Kennedy further noted,

DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency… By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

The majority opinion73 further detailed the wide-ranging practical implications of DOMA on married same-sex couples, including preventing them from obtaining government healthcare benefits, benefiting from provisions of the Bankruptcy Code and filing joint federal tax returns. The Court also emphasized the social stigma the law places on couples as well as their children. The Court reasoned,

DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own

73 (https://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf)

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family and its concord with other families in their community and in their daily lives.

The Supreme Court did not yet go so far as to prohibit all laws excluding same-sex marriage74 but, rather, it confined its decision to federal law. However, as the dissenting justices aptly noted, the majority left the "second, state-law shoe to be dropped later, maybe next Term."75

I. Lethal Injection Cocktail Approved in Glossip v. Gross

On June 29, 2015, the U.S. Supreme Court ruled, by a vote of 5-4, that Oklahoma's lethal injection protocol does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. The case, Glossip v. Gross,76 was one of the most significant criminal law cases of the 2014-2015 Term and the first death penalty case the Roberts Court has considered since 2008. 1. The facts of the case.

The state of Oklahoma uses a three-drug cocktail in its lethal injection executions.77 The first drug – midazolam – is supposed to render the inmate unconscious and prevent the inmate from experiencing excruciating pain from the administration of the second and third drugs, which paralyze the inmate and then stops the heart. As noted in a prior post, midazolam was used in several botched executions, including one widely publicized incident in which the prisoner began to talk and move around after being declared unconscious. States have been forced to find alternative drugs to use for lethal injections after pharmaceutical companies stopped producing used medications under pressure from anti-death penalty groups. Three inmates on death row in Oklahoma alleged that the use of midazolam as the first drug violated the Eighth Amendment's ban on cruel and unusual punishments.78 Specifically, they maintained

74 (https://constitutionallawreporter.com/2012/12/13/will-history-be-made-supreme-court-agrees-to-consider-two-same-sex-marriage-cases/) 75 Two years later in Obergefell v. Hodges, the Supreme Court overruled Baker v. Nelson, 409 U.S. 810 (1972) (holding that the exclusion of same-sex couples from marriage did not present a substantial federal question). The Hodges Court held that same–sex couples may exercise the fundamental right to marry and, therefore, state laws denying this fundamental right is invalid to the extent they exclude same–sex couples from civil marriages. See Obergefell v. Hodges, 135 S. Ct. 2584, 2591 (2015). 76 (https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf) 77 (https://constitutionallawreporter.com/2015/03/05/glossip-v-gross-death-penalty-case/) 78 (https://constitutionallawreporter.com/amendment-08/)

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that the drug is not supposed to be used as an anesthetic and is not reliable in achieving a coma-like unconsciousness. The lower courts rejected the challenges, and one of the petitioners was executed. The Supreme Court delayed the remaining executions pending the resolution of the case.

2. The legal background.

The text of the Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Despite numerous challenges, the Supreme Court has held that capital punishment generally does not constitute unconstitutional cruel and unusual punishment. In its 2008 decision in Baze v. Rees, 553 U.S. 35 (2008),79 the Supreme Court rejected a similar challenge to the state of Kentucky's lethal injection procedures. The Court held that to constitute cruel and unusual punishment, an execution method must present a "substantial" or "objectively intolerable" risk of serious harm. In addition, the Court also held that a state's refusal to adopt proffered alternative procedures may violate the Eighth Amendment "only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain."

3. The Court's decision.

The majority held that the death-row inmates failed to establish the use of midazolam violates the Eighth Amendment because it fails to render a person insensate to pain. Justice Samuel Alito authored the majority opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. In reaching its decision, the majority found that the inmates failed to identify a viable alternative that entails a lesser risk of pain. The Court further rejected the petitioners' argument that they should not be required to do so. As explained by the Court:

[The Petioners] have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at

79 https://scholar.google.com/scholar_case?case=10752510346595419167&hl=en&as_sdt=6 &as_vis=1&oi=scholarr

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61, which imposed a requirement that the Court now follows.

The majority also found that the death-row inmates were unable to establish that the use of midazolam in lethal injections is "sure or very likely to result in needless suffering." As Justice Alito further noted, "While most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."

4. The dissents.

Justice Sonia Sotomayor wrote the main dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Justice Sotomayor announced her dissent from the bench, indicating the degree to which she disagreed with the majority. "Petitioners contend that Oklahoma's current protocol is a barbarous method of punishment – the chemical equivalent of being burned alive," Justice Sotomayor wrote. "But under the court's new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake." Justice Breyer also read from his dissent, which Justice Ginsburg joined. In addition to criticizing the majority's decision, Justice Breyer questioned the overall use of capital punishment, suggesting that all methods of execution may violate the Eighth Amendment. "Rather than try to patch up the death penalty's legal wounds one at a time," Justice Breyer wrote, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."

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