(Last update: May 17, 2000)
LIMITS OF CONGRESSIONAL
A good student of constitutional law should be conversant not only with
cases upholding certain powers of Congress, but also those describing the
limits of Congressional and state powers. This file identifies many of
those cases and provides links to some of these U.S. Supreme Court cases,
making study easy.
(1) New York
ex rel. Cutler v. Dibble, 21 How. (62 U.S.) 366, 370 (1859):
Purchaser of Indian
lands removed from possession pursuant to state law protecting Indians.
Court held state law valid:
Tax Cases, 72 U.S. (5 Wall.) 462 (1866):
of a state to make such regulations to preserve the peace of the community
is absolute, and has never been surrendered."
Several states criminally
punished transactions in liquors and lotteries, probably either with or
without license. Congress then enacted certain internal revenue acts which
licensed liquor sales and lotteries. Defendants, conducting illegal state
businesses in these fields, did not obtain federal licenses and were indicted;
they defended by arguing that Congress can't legalize by license an illegal
state activity. The Court held that the licenses did not permit conduct
of such business, but were merely taxes:
States v. DeWitt, 76 U.S. (9 Wall.) 41, 45 (1870):
different considerations apply to the internal commerce or domestic trade
of the states. Over this commerce and trade Congress has no power of regulation
nor any direct control. This power belongs exclusively to the states. No
interference by Congress with the business of citizens transacted within
a state is warranted by the Constitution, except such as is strictly incidental
to the exercise of powers clearly granted to the legislature. The power
to authorize a business within a state is plainly repugnant to the exclusive
power of the state over the same subject. ... Congress cannot authorize
a trade or business within a state in order to tax it," Id., at 470-71.
"But it is not necessary
to regard these laws as giving such authority. So far as they relate to
trade within state limits, they give none and can give none," Id., at 471.
"There would be great
force in it if the licenses were regarded as giving authority, for then
there would be a direct conflict between national and state legislation
on a subject which the Constitution places under the exclusive control
of the states," Id., at 472.
Federal revenue act
made it illegal to sell illuminating oil of certain flammability and defendant
was indicted for violating this law in Detroit. Court held defendant could
not be prosecuted:
See also Matter of
Heff, 197 U.S. 488 (1905), overruled, United States v. Nice,
241 U.S. 591 (1916).
"As a police
regulation, relating exclusively to the internal trade of the States, it
can only have effect where the legislative authority of Congress excludes,
territorially, all state legislation, as, for example, in the District
of Columbia. Within state limits, it can have no constitutional operation."
Other authorities re
absence of federal police power:
House Cases, 83 U.S. 36, 63, 64 (1873):
v. Rahrer, 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891):
general power over these objects is granted to Congress; and consequently
they remain subject to state legislation."
"[A]s a police regulation
the power to make such a law belonged to the states, and did not belong
Union National Bank
v. Brown, 101 Ky. 354, 41 S.W. 273 (1897):
power "is a power originally and always belonging to the states, not surrendered
to them by the general government, nor directly restrained by the constitution
of the United States, and essentially exclusive."
See also John Woods
& Sons v. Carl, 75 Ark. 328, 87 S.W. 621, 623 (1905), affirmed
27 S.Ct. 99: quoted Brown. See Southern Express Co. v. Whittle,
194 Ala. 406, 69 So.2d 652, 655 (1915).
"On the contrary,
it may be considered as having been authoritatively settled that the national
government cannot exercise police powers for the protection of the inhabitants
of a state."
Shealey v. Southern
Ry. Co., 127 S.C. 15, 120 S.E. 561, 562 (1924):
McInerney v. Ervin,
46 So.2d 458, 463 (Fla. 1950):
power under the American constitutional system has been left to the states.
It has always belonged to them and was not surrendered by them to the general
government, nor directly restrained by the constitution of the United States...
Congress has no general power to enact police regulations operative within
the territorial limits of a state."
States v. Fox, 94 U.S. 315, 320-21 (1877):
Government has no general police power and that of the states is beyond
the reach of Congress, except in rare cases where the people in whom it
inheres have released it by the terms of the Federal Constitution."
State law, by construction,
did not provide for bequest of land by will to the U.S.; here, this was
attempted by will of decedent challenged by his heirs. The Court held this
See also Thurlow v.
Massachusetts, 5 How. 504, 588 (1847):
of the State to regulate the tenure of real property within her limits,
and the modes of its acquisition and transfer, and the rules of its descent,
and the extent to which a testamentary disposition of it may be exercised
by its owners, is undoubted. It is an established principle of law, everywhere
recognized, arising from the necessity of the case, that the disposition
of immovable property, whether by deed, descent or any other mode, is exclusively
subject to the government within whose jurisdiction the property is situated
.... The power of the State in this respect follows from her sovereignty
within her limits, as to all matters over which jurisdiction has not been
expressly or by necessary implication transferred to the Federal Government.
The title and modes of disposition of real property within the State, whether
inter vivos or testamentary, are not matters placed under the control of
federal authority. Such control would be foreign to the purposes for which
the Federal Government was created, and would seriously embarrass the landed
interests of the State."
See also Parker v.
Brown, 317 U.S. 341, 359, 360, 63 S.Ct. 307 (1943); Sturges v. Crowninshield,
17 U.S. 122, 192, 193 (1819); and Ex Parte Guerra, 110 A. 224, 226
resting upon their original basis of sovereignty, subject only to the exceptions
stated, exercise their powers over everything connected with their social
and internal condition. A State regulates its domestic commerce, contracts,
the transmission of estates, real and personal, and acts upon all internal
matters which relate to its moral and political welfare. Over these subjects
the federal government has no power. They appertain to the State sovereignty
as exclusively as powers exclusively delegated appertain to the general
"The police power,
which is exclusive in the States, is alone competent to the correction
of these great evils," Id., at 632.
States v. Fox, 95 U.S. 670, 672 (1878):
Federal law made penal
fraud on creditors occurring within three months of filing bankruptcy petition;
defendant charged with violating this law, but the Court held it void:
v. Kentucky, 97 U.S. 501 (1879):
"But an act
committed within a State, whether for a good or a bad purpose, or whether
with an honest or a criminal intent, cannot be made an offense against
the United States, unless it have some relation to the execution of a power
of Congress, or to some matter within the jurisdiction of the United States.
An act not having any such relation is one in respect to which the State
can alone legislate."
Henry DeWitt, of U.S.
v. DeWitt fame, held patent for heating oil, and assigned it to Patterson,
who was prosecuted for violating state law. Patterson claimed that the
U.S. patent made heating oil valid in state. In affirming Patterson's conviction,
court held that holder of patent acquired no superior rights under state
law, and use of patented product in violation of state law could be punished
by the state.
States v. Steffens (The Trade-Mark Cases), 100 U.S. 82, 96-97 (1879):
Revised statutes provided
procedure to protect, by registration, trademarks; later act attached criminal
penalties. Individuals were indicted for violating trade-mark law, and
they argued that these criminal penalties were unconstitutional. The Court,
in dismissing indictments, held that Congress had no such express powers
over trademarks, and act was unconstitutional. It also noted that this
law, not statutorily connected to interstate commerce, could not be valid
on this grounds:
However, valid with a
treaty; see Rossman v. Garnier, 211 F. 401 (8th Cir. 1914).
"If it is
not so limited, it is in excess of the power of Congress. If its main purpose
be to establish a regulation applicable to all trade; to commerce at all
points, especially if it is apparent that it is designed to govern the
commerce wholly between citizens of the same State, it is obviously the
exercise of a power not confided to Congress."
(8) Civil rights:
(a) United States
v. Reese, 92 U.S. 214 (1876): prosecution against election official
for denying receipt of vote; held statute was overbroad.
(b) United States
v. Cruikshank, 92 U.S. 542 (1876): statute like current 42 U.S.C.,
§1985(3) subject of prosecution; held indictment was defective.
States v. Harris, 106 U.S. 629, 1 S.Ct. 601 (1883): statute like
current 42 U.S.C., §1985(3) held unconstitutional because it encompassed
people and not solely the state.
Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18 (1883): statute like
current 42 U.S.C., §2000a held unconstitutional (relating to public
v. Franks, 120 U.S. 678, 7 S.Ct. 656 (1887): Chinese immigrants
run out of Nicolaus, CA, by California citizens, who were indicted for
violating civil rights. Habe action instituted, and Court held that the
federal penal provisions did not operate "within a state," 120 U.S., at
689. (like 42 U.S.C., §1985(3).
(f) James v. Bowman,
190 U.S. 127 (1903): an act which was not valid under 15th amendment.
v. Merchants & Miners Transportation Co., 230 U.S. 126, 33
S.Ct. 964 (1913): act was not even applicable within US jurisdiction (public
v. Hodge, 334 U.S. 24, 68 S.Ct. 847 (1948): act can apply in DC.
(i) Note: Employers'
liability act valid in DC and territories: Hyde v. Southern R. Co.,
31 App.D.C. 466 (1908); El
Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87 (1909).
De La Rama v. De
La Rama, 201 U.S. 303, 26 S.Ct. 485 (1906):
Appeal from Philippines
divorce action. Court stated:
parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850 (1890):
"It has been
a long established rule that the courts of the United States have no jurisdiction
upon the subject of divorce ...," Id., at 307.
"But the general rule
above stated has no application to the jurisdiction of the territorial
courts, or of the appellate jurisdiction of this court over those courts,"
Id., at 308.
"[T]hat Congress, having
entire dominion and sovereignty over territories, 'has full legislative
power over all subjects upon which the legislature of a state might legislate
within the state," Id., at 308.
Custody dispute over
child in U.S. district court; here, Court held:
See also Sweigart v.
State, 213 Ind. 157, 12 N.E.2d 134 (1938); McCarty v. Hollis,
120 F.2d 540, 542 (10th Cir. 1941); Ainscow v. Alexander, 39 A.2d
54 (Del. 1944); David-Zieseniss v. Zieseniss, 129 N.Y.S.2d 649,
652 (1954); Morris v. Morris, 273 F.2d 678, 682 (7th Cir. 1960);
v. Oklahoma Tax Commission, 446 P.2d 290, 294 (Okl. 1968);
v. Okla. Tax Comm., 446 P.2d 290, 294 (Okla. 1968); Shiffman v.
Askew, 359 F.Supp. 1225 (M.D.Fla. 1973), aff'd, Makres v. Askew,
500 F.2d 577 (5th Cir. 1974); United States v. White, 545 F.2d 1129
(8th Cir. 1976); Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436, 440
(1978); Cady v. Cady, 224 Kan. 339, 581 P.2d 358, 360 (1978).
subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the states, and not to the laws of the United States."
Ellis v. Davis,
109 U.S. 485, 3 S.Ct. 327 (1883): Federal courts have no probate jurisdiction.
v. Mercantile Trust Co., 154 U.S. 413, 14 S.Ct. 1060 (1894):
A railroad created
by federal law was subject to state law, especially since act of Congress
did not express such an exemption.
v. United States, 208 U.S. 161, 28 S.Ct. 277 (1908):
Union case involving
right to contract. Held, US cannot make it a crime to discharge employee.
v. United States, 213 U.S. 138, 29 S.Ct. 470 (1909):
Federal law made penal
the use of immigrant women for immoral purposes for three years after entry;
Keller was indicted and convicted of this, but Court reversed. It was held
that this was an act within the police power of the states, and Congress
could not legislate in this manner.
However, such a law is
valid if based upon a treaty; see United
States v. Portale, 235 U.S. 27, 35 S.Ct. 1 (1914).
in the Constitution no grant to Congress of the police power," Id., at
v. Smith, 221 U.S. 559, 31 S.Ct. 688 (1911):
decided to change capital from Guthrie to Oklahoma City; suit brought to
challenge this on grounds state act violated act admitting Oklahoma into
Union. Court held Congress had no power to control such a matter after
admission of state into Union.
v. Dagenhart, 247 U.S. 251, 272, 38 S.Ct. 529 (1918):
Court found federal
law designed to regulate interstate commerce in products made by child
labor as unconstitutional, holding that Congress under the interstate commerce
clause cannot regulate production of goods before they enter such commerce.
Overruled by United
States v. Darby, 312 U.S. 100, 116, 61 S.Ct. 451 (1941).
transportation, or its incidents, the regulatory power of Congress is ample,
but the production of articles, intended for interstate commerce, is a
matter of local regulation."
v. Drexel Furniture Co., 259 U.S. 20, 38, 42 S.Ct. 449 (1922):
Federal child labor
tax law was challenged; Drexel made furniture in North Carolina, and was
hit with tax of large amount for employing a boy under 14 years of age.
The Court held the act unconstitutional as a mere attempt to circumvent
via a penalty under the guise of a tax:
v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922):
validity of this law, and all that Congress would need to do, hereafter,
in seeking to take over to its control any one of the great number of subjects
of public interest, jurisdiction of which the states have never parted
with, and which are reserved to them by the Tenth Amendment, would be to
enact a detailed measure of complete regulation of the subject and enforce
it by a so-called tax upon departures from it. To give such magic to the
word 'tax' would be to break down all constitutional limitation of the
powers of Congress and completely wipe out the sovereignty of the states."
Federal law, Future
Trading Act, attacked as unconstitutional by members of Board of Trade
in Chicago; the law was a detailed regulation of trade on exchanges combined
with a tax. Court held act invalid as beyond Congressional powers, the
subject being within province of the states.
Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 407, 42
S.Ct. 570 (1922):
Suit by coal company
against United Mine Workers of America for coal field strike which destroyed
its business; suit based on anti-trust theory involving restraint on interstate
commerce. From verdict in favor of coal company, Court reversed, holding
there was no interstate commerce:
See second case: Coronado
Coal Co. v. U.M.W. of America, 268 U.S. 295, 45 S.Ct. 551 (1925). See
also Hume-Sinclair Coal Mining Co. v. Nee, 12 F.Supp. 801 (W.D.Mo.
is not interstate commerce, and the power of Congress does not extend to
its regulations as such."
Leather Workers' International Union v. Herkert & Meisel Trunk Co.,
265 U.S. 457, 44 S.Ct. 623 (1924):
Companies engaged in
making leather goods sold in interstate commerce were subjected to a strike,
and they sued under Anti-Trust Act. Court held suit could not be maintained
because there was no provable, direct restraint on such commerce.
v. United States, 268 U.S. 5, 18, 45 S.Ct. 446 (1925):
Doctor indicted and
convicted of dispensing drugs contrary to federal narcotics laws which
were revenue measures. Court held his conviction void and said:
See also Young v. United
States, 315 U.S. 257, 62 S.Ct. 510 (1942)(involved insular possession
of Hawaii); and F.T.C. v. Simeon Management Corp., 391 F.Supp. 697
(N.D.Cal. 1975), affirmed at 532 F.2d 708 (9th Cir. 1976). United States
v. Anthony, 15 F.Supp. 553, 555 (S.D.Cal. 1936); United States v.
Evers, 453 F.Supp. 1141, 1150 (M.D.Ala. 1978); Ghadiali v. Delaware
State Medical Society, 48 F.Supp. 789 (D.Del. 1943)(practice of medicine
is a state concern).
direct control of medical practice in the states is beyond the power of
the federal government."
Ass'n of San Francisco v. United States, 268 U.S. 64, 82, 45 S.Ct.
in San Francisco was plagued by union difficulties and devised the "American
plan", which the government contended violated federal anti-trust law.
But, Court held there was no violation, "for building is as essentially
local as mining, manufacturing or growing crops."
Motocycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601 (1931):
sold vehicle to city government and U.S. sought to collect sales tax. Court
held that tax on sales to state and local government could not be imposed
by the U.S.
v. Garrigues Co., 289 U.S., 103, 53 S.Ct. 549 (1933):
Company engaged in
erection of steel for buildings in NYC sued union under anti-trust laws
for restraining interstate commerce. Court held that such commerce was
not involved in case and dismissed suit.
Retirement Board v. Alton R. Co., 295 U.S. 330, 368, 55 S.Ct. 758,
Congress set up retirement
system for carriers subject to I.C.C., and carriers challenged act as unconstitutional.
Court agreed and held act violated due process and was not a regulation
of interstate commerce:
Cases after passage of
SS Act in Aug, 1935, a mere 3 months after this case: Davis v. Boston
& M. R. Co., 89 F.2d 368 (1st Cir. 1937); Charles C. Steward
Mach. Co. v. Davis, 89 F.2d 207 (5th Cir. 1937), aff'd 301 U.S. 548,
57 S.Ct. 883 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct.
904 (1937) (insular possessions basis: see Cincinnati
Soap Co. v. United States, 301 U.S. 308, 57 S.Ct. 764 (1937)).
of means and actions which might be imposed upon an employer in any business,
tending to the satisfaction and comfort of his employees, seems endless.
Provision for free medical attendance and nursing, for clothing, for food,
for housing, for the education of children, and a hundred other matters
might with equal propriety be proposed as tending to relieve the employee
of mental strain and worry. Can it fairly be said that the power of Congress
to regulate interstate commerce extends to the prescription of any or all
of these things? Is it not apparent that they are really and essentially
related solely to the social welfare of the worker, and therefore remote
from any regulation of commerce as such? We think the answer is plain.
These matters obviously lie outside the orbit of congressional power."
See for requirement
to get a SSN: 42 U.S.C., §405(c)(2)(B), and 20 CFR §404.1003-05,
Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241 (1935):
N.I.R.A. applied to
petroleum production. Court found act permitted President unbridled legislative
authority and his executive orders found void on principles of delegation
of legislative powers grounds.
Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854 (1935):
Bankruptcy law favored
farmers over secured mortgage holders; held this law deprived creditors
of property in violation of the 5th (takings by legislation).
Schecter Poultry Corp. v. United States, 295 U.S. 495, 546, 55
S.Ct. 837 (1935):
NIRA permitted "codes"
to be promulgated by industry groups, which "codes" had effect of law.
Schecter officials indicted for violating "code" for acts occurring inside
NYC. Court held NIRA unconstitutional on delegation of powers grounds and
found the acts in question not a part of interstate commerce. Congress
has no power over local wages and hours of work:
Fed. S & L. Assn. v. Cleary, 296 U.S. 315, 56 S.Ct. 235 (1935):
"If the commerce
clause were construed to reach all enterprises and transactions which could
be said to have an indirect effect upon interstate commerce, the federal
authority would embrace practically all the activities of the people, and
the authority of the state over its domestic concerns would exist only
by sufferance of the federal government. Indeed, on such a theory, even
the development of the state's commercial facilities would be subject to
Court held that federal
act permitting state financial institutions to become federal was inoperative
if state objected to change of institution from state to federally chartered.
States v. Butler, 297 U.S. 1, 56 S.Ct. 312 (1936):
Congress can't regulate
agricultural production in the states:
Other cases regarding
interstate commerce powers of Congress: Coe v. Errol, 116 U.S. 517,
6 S.Ct. 475 (1886); Chicago,
Milwaukee & St.P. Ry. Co. v. Iowa, 233 U.S. 334, 34 S.Ct. 592
v. Marysville & Northern Ry. Co., 243 U.S. 36, 37 S.Ct. 374
Pac. Co. v. Arizona, 249 U.S. 472, 477, 39 S.Ct. 313 (1919); Atlantic
Coast Line R.Co. v. Standard Oil Co. of Kentucky, 275 U.S. 257,
48 S.Ct. 107 (1927); and United
States v. Yellow Cab, 332 U.S. 218, 67 S.Ct. 1560 (1947).
"It is a statutory
plan to regulate and control agricultural production, a matter beyond the
powers delegated to the federal government. The tax, the appropriation
of the funds raised, and the direction for their disbursement, are but
parts of the plan. They are but means to an unconstitutional end," Id.,
"And contracts for
the reduction of acreage and the control of production are outside the
range of that power," Id., at 73.
"The expressions of
the framers of the Constitution... will be searched in vain for any suggestion
that there exists in the clause under discussion or elsewhere in the Constitution,
the authority whereby every provision and every fair implication from that
instrument may be subverted, the independence of the individual states
obliterated, and the United States converted into a central government
exercising uncontrolled police power in every state of the Union, superseding
all local control or regulation of the affairs or concerns of the states,"
Id., at 77.
But see Wickard
v. Filburn, 317 U.S. 111 (1942), where the Court allowed for total
control over a farmer's production of his domestic crop; this is an extremely
important case regarding the interstate commerce powers of Congress.
v. Carter Coal Co., 298 U.S. 238, 303, 56 S.Ct. 855 (1936):
Bituminous Coal Conservation
act imposed tax with a drawback provision conditioned upon compliance with
a code regarding prices, labor and other regulations. Court held recitals
in act were not the law, that tax was really a penalty, act violated reserved
powers of the state, act was not regulation of interstate commerce, and
act violated delegation of powers principles:
v. Cameron County Water Improvement Dist., 298 U.S. 513, 56 S.Ct.
"One who produces
or manufactures a commodity, subsequently sold and shipped by him in interstate
commerce, whether such sale and shipment were originally intended or not,
has engaged in two distinct and separate activities. So far as he produces
or manufactures a commodity, his business is purely local. So far as he
sells and ships, or contracts to sell and ship, the commodity to customers
in another state, he engages in interstate commerce. In respect to the
former, he is subject only to regulation by the state; in respect to the
latter, to regulation only by the federal government."
State governments and
their political subdivisions can't use bankruptcy.
NOTE: A popular argument
in movement circles contends that this whole nation was placed into bankruptcy
in 1930 and Roosevelt devised a plan to get judicial approval of the "bankruptcy"
via the decision in the 1938 Erie Railroad case. But how can such a legal
theory fly in view of the decision in this case?
Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp.,
302 U.S. 120, 58 S.Ct. 125 (1937):
The creation and dissolution
of state corporations is a matter solely within province of states.
States v. Burnison, 339 U.S. 87, 70 S.Ct. 503 (1950):
Testator made devise
to U.S. through will, but Cal. S.Ct. held devise invalid and contrary to
state law. Court affirmed.
Lime and Avocado Growers, Inc. v. Paul,
373 U.S. 132, 144, 83 S.Ct. 1210 (1963):
Federal avocado standards
less stringent than California standards were challenged, but Court upheld
validity of state laws regarding avocados. Court stated that preparation
of foodstuffs for market has always been a matter of local concern:
v. Mitchell, 400 U.S. 112, 91 S.Ct. 260 (1970):
the supervision of the readying of foodstuffs for market has always been
deemed a matter of peculiarly local concern."
Federal voting rights
act setting forth qualifications for voters in federal elections could
not be applied to state elections.
(35) Drug and
(a) In United
States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658 (1916), the
Court had before it the validity of this act which operated within the
jurisdiction of the state, and it held that dismissal of the indictment
was mandated because the act invaded the jurisdiction of the state and
Congress simply lacked the constitutional power to penalize mere possession
of opium within state jurisdiction.
(b) In United States
v. Ah Hung, 243 F. 762, 764 (E.D.N.Y. 1917), it was stated: "Mere possession
of an article injurious to health would not render a person liable to a
United States statute unless some constitutional basis for the statute
gives the United States the right to regulate upon the subject."
(c) In Nigro v.
United States, 276 U.S. 332, 341, 48 S.Ct. 388 (1928), defendant was
prosecuted, and in discussing the issue, court stated:
(d) In United
States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190 (1953),
seizure of devices without any proof of interstate transport held invalid.
the act, we must assume that it is a taxing measure, for otherwise it would
be no law at all. If it is a mere act for the purpose of regulating and
restraining the purchase of the opiate and other drugs, it is beyond the
power of Congress, and must be regarded as invalid."
(e) United States
v. Contrades, 196 F.Supp. 803, 811 (D. Hawaii 1961): The drug laws
"have been bottomed on the taxing power of Congress or on the power to
regulate foreign and interstate commerce."
(f) Turner v. United
States, 396 U.S. 398 (1970): presumption of importation of coke unconst.;
NOTE: Please see the
regarding treaties which explains that the constitutional foundation
for federal drug laws are the drug treaties.
of law is a state matter: Nicklaus v. Simmons, 196 F.Supp. 691 (D.Neb.
1961); In re Battelle Memorial Institute, 172 N.E.2d 917, 919 (Ohio
1961); Ginsburg v. Kovrak, 392 Pa. 143, 139 A.2d 889 (1958); DePass
v. B. Harris Wool Co., 346 Mo. 1038, 144 S.W.2d 146 (1940); Baird
v. Koerner, 279 F.2d 623 (9th Cir. 1960); Schware v. Bd. of Examiners,
353 U.S. 238: practice of law is occupation of common right.
(37) State controls
pleadings, evidence and process in its courts: People ex rel Gilbert
v. Babb, 415 Ill. 349, 114 N.E.2d 358 (1953); Edmonds v. State,
201 Ga. 108, 39 S.E.2d 24, 38 (1946); Wade v. Foss, 96 Me. 230,
52 A. 640 (1902); Central of Georgia Ry. Co. v. Jones, 152 Ga. 92,
108 S.E. 618 (1921); Breen v. Iowa Central Ry. Co., 184 Iowa 1200,
168 N.W. 901 (1918); 28 Ga. App. 258, 110 SE 914; 137 P2d 1; 122 P2d 655;
21 NYS2d 791 (1940). Deeds: Sowell v. Rankin, 120 Miss. 458, 82
So. 317 (1919); People v. Kelley, 122 P.2d 655, 659 (Cal.App. 1942).
is a state matter: State ex rel Steinle v. Faust, 55 Ohio App. 370,
9 N.E.2d 912, 914 (1937); Steier v. N.Y. State Education Comm.,
271 F.2d 13, 17 (2nd Cir. 1959).
(39) State controls
v. Virginia, 94 U.S. 391, 394, 395 (1877):
See also Corfield v.
Coryell, 6 Fed Cas. 546, No. 3230 (E.D.Pa. 1823); Manchester v.
Massachusetts, 139 U.S. 240, 11 S.Ct. 559 (1891)(wherein there is note
of US fisheries commissioner being connected with treaties); and United
States v. Alaska Packers, 79 F. 152 (D.Wash. 1897). See 43 USC §1311.
own the tidewaters themselves and the fish in them, so far as they are
capable of ownership while running."
"The title thus held
is subject to the paramount right of navigation, the regulation of which,
in respect to foreign and interstate commerce, has been granted to the
United States. There has been, however, no such grant of power over the
fisheries. These remain under the exclusive control of the State..."
(b) And wildlife:
United States v.
Shauver, 214 F. 154, 160 (E.D.Ark. 1914):
United States v. McCullagh,
221 F. 288, 293 (D.Kan. 1915):
is unable to find any provision in the Constitution authorizing Congress,
either expressly or by necessary implication, to protect or regulate the
shooting of migratory wild game in a state, and is therefore forced to
the conclusion that the act is unconstitutional."
See also Clajon Production
Corp. v. Petera, 854 F.Supp. 843 (D.Wyo. 1994): "ownership" of game.
title and power to control the taking and ultimate disposition of the wild
game of this country resides in the state, to be parted with and exercised
by the state for the common good of all the people of the state, as in
its wisdom may seem best."
are a state matter: Shapley v. Cohoon, 258 F. 752 (D.Mass. 1981);
v. Steele, 104 F.Supp. 904 (W.D.Mo. 1951); Fahey v. United States,
153 F.Supp. 878 (S.D.N.Y. 1957); Edwards v. Steele, 112 F.Supp.
382 (W.D.Mo. 1952).
(41) State prisons:
v. Haskins, 388 F.2d 91 (6th Cir. 1968); Siegel v. Ragen, 180
F.2d 785 (7th Cir. 1950):
(42) Traffic &
licensing: Oklahoma v. Willingham, 143 F.Supp. 445 (E.D.Ok. 1956)(mail
carrier removal); United States v. Best, 573 F.2d 1095 (9th Cir.
of the United States is not concerned with, nor has it power to control
or regulate the internal discipline of the penal institutions of its constituent
states. All such powers are reserved to the individual states," 180 F.2d,
"The 14th Amendment
does not empower Congress to legislate on matters within the domain of
the states' powers, nor to legislate against the wrongs and personal actions
of individuals within the state nor to regulate and control the conduct
of private individuals," 180 F.2d, at 789.
v. State, 489 So.2d 729 (Fla. 1986) (nudity); United States v. Hicks,
256 F. 707 (W.D.Ky. 1919) (bawdy house).
(44) Food products:
States v. Carolene Products Co., 7 F.Supp. 500 (S.D.Ill. 1934) (filled
milk); United States v. Greenwood Dairy Farms, 8 F.Supp. 398 (S.D.Ind.
1934) (milk); United States v. Seven Oaks Dairy Co., 10 F.Supp.
995 (D.Mass. 1935) (milk); Stout v. Pratt, 12 F.Supp. 864 (W.D.Mo.
relations: Ferrer v. Fronton Exhibition Co., 188 F.2d 954 (5th Cir.
1951) (Jai-alai players); Love v. Chandler, 124 F.2d 785.
v. Ghezzi, 389 F.Supp. 187 (N.D.N.Y. 1974) (beauty shops);
v. Rosenthal, 93 Nev. 36, 559 P.2d 830, 836 (1977) (gambling).
Township v. Tugwell, 85 F.2d 208 (D.C.Cir. 1936)(low income housing
is state matter); United States v. Jeffers, 90 F.Supp. 356 (D.Or.
1950); United States v. Certain Lands in Louisville, Kentucky, 78
F.2d 684 (6th Cir. 1935); Washington Water Power Co. v. City of Coeur
D'Alene, 9 F.Supp. 263 (D.Idaho 1934); Missouri Public Service Co.
v. City of Concordia, 8 F.Supp. 1.
(48) New federalism:
v. Native Village of Noatak & Circle Village, 501 U.S. 775,
111 S.Ct. 2578 (1991): state sovereignty and 11th Amend.
York v. United States, 505 U.S. 144, 112 S.Ct. 2408 (1992): new
v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395 (1991): authority of
States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886 (1944): "Heresy
trials are foreign to our Constitution."
(50) Tax on
exports void: Fairbanks v. United States, 181 U.S. 283 (1901); United
States v. Hvoslef, 237 U.S. 1 (1915); Thames & Mersey Marine
Ins. Co. v. United States, 237 U.S. 19 (1915). See also United
States Shoe Corp. v. United States, 907 F.Supp. 408 (Ct.Int.Trade
1995), affirmed at 114 F.3d 1564 (Fed.Cir. 1997): harbor maintenance tax
is unconstitutional (this link is to the decision of the appellate court).Cert
has been granted.
of powers: Plaut
v. Spendthrift Farms, ___ U.S. ____ (1995): Based upon principles
of separation of powers, Congress cannot enact law which essentially reviews
decisions of the courts.
STATE LIMITS OF
A. POLICE POWERS:
The courts have held that the states have a power known as the "police
power." You should know what is the "police power" as well as know about
some of the laws which the courts have declared unconstitutional as outside
the police power. Here are some of those cases:
v. Tanner, 244 U.S. 590, 37 S.Ct. 662 (1917): state law prohibiting
employment agencies was void.
v. Nebraska, 262 U.S. 390, 43 S.Ct. 625 (1923): state law forbidding
teaching foreign languages in school was void.
Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412 (1924): state
law mandating bread weight restrictions held void.
v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320 (1926): state law
preventing use of "shoddy" in mattresses held void.
& Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418,
47 S.Ct. 426 (1927): state's ticket broker price restriction law held void.
v. New Jersey, 306 U.S. 451, 59 S.Ct. 618 (1939): being mere member
of gang can't be made penal.
Town of Greensboro
v. Ehrenreich, 80 Ala. 579, 2 So. 725 (1887): prohibition on selling
used mattresses held unconstitutional.
Crawford v. City
of Topeka, 51 Kan. 756, 33 P. 476 (1893): prohibition on advertising
signs held unconstitutional.
In re Opinion of
the Justices, 207 Mass. 601, 94 N.E. 558 (1911): statute preventing
young women under 21 from entering Chinese operated hotels held unconstitutional.
Chenoweth v. State
Board of Medical Examiners, 57 Colo. 73, 141 P. 137 (1913): prohibition
on placing ad in paper beyond police powers of board.
Spann v. City of Dallas, 111
Tex. 350, 235 S.W. 513 (1921): law preventing building without consent
of neighbors held beyond police power.
Goldman v. Crowther,
147 Md. 282, 128 A. 50 (1925): ordinance preventing business in home held
unconstitutional (zoning case containing good cites and quotes).
Bruhl v. State,
111 Tex.Cr.R. 233, 13 S.W.2d 93 (1928): law regarding optometrists held
beyond police power.
Travlers' Ins. Co.
v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (1934): state mortgage foreclosure
moratorium held unconstitutional.
City of Miami Beach
v. Cohen, 47 So.2d 565 (Fla. 1950): ordinance prevented entertainment
at night club found beyond police power.
Town of Bay Harbor
Islands v. Schlapik, 57 So.2d 855 (Fla. 1952): restriction on building
during certain months held unconstitutional.
Berry v. Summers,
76 Idaho 446, 283 P.2d 1093 (1955): dental technicians law held beyond
Corneal v. State
Plant Board, 95 So.2d 1 (Fla. 1957): law to control nematodes for citrus
trees held beyond police power and constituted a taking.
People v. Bunis,
9 N.Y.2d 1, 172 N.E.2d 273 (1961): prohibition on selling magazines without
covers held unconstitutional.
Delmonico v. State,
155 So.2d 368 (Fla. 1963): possession of spearfishing equipment law held
City of Detroit
v. Bowden, 6 Mich.App. 514, 149 N.W.2d 771 (1967): ordinance re shouting
at cars on street held beyond police powers.
Bruce v. Director,
Dep't. of Chesapeake Bay Affairs, 261 Md. 585, 276 A.2d 200 (1971):
crabbing restriction limited to resident's own county held beyond police
Maryland State Bd.
of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973): law
making distinction between parties allowed to cut male and female hair
held beyond police powers.
McGuffey v. Hall,
557 S.W.2d 401, 414 (Ky. 1977): compulsory medical malpractice insurance
not shown within police power.
State v. Lee,
356 So.2d 276, 279 (Fla. 1978): law
provided funds to good drivers vis a vis "bad':
Alford v. Newport News,
220 Va. 584, 260 S.E.2d 241 (Va. 1979): law preventing smoking in restaurants
police power cannot be invoked to distribute collected funds arbitrarily
and discriminatorily to a special limited class of private individuals."
Rogers v. State
Board of Medical Examiners, 371 So.2d 1037 (Fla. App. 1979): chelation
treatment held not a valid reason for revocation of doctor's license.
City of Baxter Springs
v. Bryant, 226 Kan. 383, 598 P.2d 1051, 1057 (1979): prohibition on
dancing in disco found unconstitutional: "Healthful and harmless recreation
cannot be prohibited by a municipal corporation."
City of Junction
City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979): proscription on
merely carrying gun in car beyond police power.
State v. Stewart,
40 N.C.App. 693, 253 S.E.2d 638 (1979): law preventing shining light off
road after dark held beyond police power.
& Protective Assoc. v. Div. of Pari-Mutuel Wagering, 397 So.2d
692, 695 (Fla. 1981):
Daniel v. Dept. of
Trans. & Devel., 396 So.2d 967 (La.App. 1981): cutting down historic
effectually requires payment of money to a private association to do with
as it chooses. This is an unlawful exercise of the police power."
Ailes v. Decatur
County Area Planning Comm., 448 N.E.2d 1057 (Ind. 1983): prohibition
on junkyards amounted to taking and beyond police power.
Inc. v. Neb. Liquor Control Comm., 217 Neb. 487, 351 N.W.2d 701 (1984):
prohibition on giving volume discounts for liquor beyond police power.
Haller Sign Works
v. Physical Culture Training School, 249 Ill. 436, 94 N.E. 920, 922
(1911): city ordinance which prevented the construction and erection of
advertising signs within 500 feet of any park or boulevard held void. See
also Condon v. Village of Forest Park, 278 Ill. 218, 115 N.E. 825
(1917); People v. Weiner, 271 Ill. 74, 110 N.E. 870 (1915); People
v. Chicago, M. & St. P. Ry. Co., 306 Ill. 486, 138 N.E. 155 (1923);
and Heimgaertner v. Benjamin Electric Manuf. Co., 6 Ill.2d 152,
128 N.E.2d 691 (1955). See also State Bank & Trust Co. v. Village
of Wilmette, 358 Ill. 311, 193 N.E. 131, 133 (1934);
East Side Levee
& Sanitary Dist. v. East St. Louis & C. Ry., 279 Ill. 123,
116 N.E. 720, 723 (1917); Schiller Piano Co. v. Ill. Northern Utilities
Co., 288 Ill. 580, 123 N.E. 631 (1919) ("An act which has no tendency
to affect or endanger the public in any of those particulars and which
is entirely innocent in character is not within the police power");
of Cortland v. Larson, 273 Ill. 602, 113 N.E. 51 (1916); City of
Zion v. Behrens, 262 Ill. 510, 104 N.E. 836 (1914).
People v. Brown,
95 N.E.2d 888 (Ill. 1950): a person's trade or business is property.
v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573 (1925):
State law requiring children to be sent to public schools held unconstitutional:
SPEECH, PRESS AND RELIGION:
theory of liberty upon which all governments in this Union repose excludes
any general power of the state to standardize its children by forcing them
to accept instruction from public teachers only. The child is not the mere
creature of the state; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare him for
v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862 (1943): freedom
of speech and press include right to pass out flyers.
v. Comm. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870 (1943): license
tax to sell religious tracts and books held unconstitutional.
People v. Swartzentruber,
170 Mich.App. 682, 429 N.W.2d 225 (1988), and State v. Miller, 196
Wis.2d 238, 538 N.W.2d 573 (1995): reflector law requiring slow moving
vehicles to display symbol; held violative of 1st Amendment.
CANNOT LICENSE CERTAIN
Bessette v. People,
193 Ill. 334, 62 N.E. 215 (1901)
People v. Beattie,
89 N.Y.S. 193 (1904); see also Application of Jacobs, 98 N.Y. 98.
In re Aubrey,
36 Wash. 308, 78 P. 900 (1904)
Territory v. Kraft,
33 Haw. 397 (1935)
Wright v. Wiles,
173 Tenn. 334, 117 S.W.2d 736 (1938)
Bramley v. State,
187 Ga. 826, 2 S.E.2d 647 (1939)
Buehman v. Bechtel,
57 Ariz. 363, 114 P.2d 227 (1941)
State v. Cromwell,
72 N.D. 565, 9 N.W.2d 914 (1943)
Sullivan v. DeCerb,
156 Fla. 496, 23 So.2d 571 (1945)
Moore v. Sulton,
185 Va. 481, 39 S.E.2d 348 (1946)
State v. Ballance,
229 N.C. 764, 51 S.E.2d 731 (1949)
Abdoo v. Denver,
156 Colo. 127, 397 P.2d 222 (1964)
Jackson v. State,
55 Tex. Cr. R. 557 (1908): barbers can't be licensed.
Gray v. Omaha,
80 Neb. 526, 114 N.W. 600 (1908): can't license sidewalk builder.
Vicksburg v. Mullane,
106 Miss. 199, 63 So. 412 (1913): privilege tax does not apply to plumber.
Sampson v. Sheridan,
25 Wyo. 347, 170 P. 1 (1918): can't license masons.
Howard v. Lebby,
197 Ky. 324, 246 S.W. 828 (1923): can't license house painters; see also
v. City of Tulsa, 882 P.2d 81 (Okl.Cr. 1994): unconst. to license sign
painters; State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936).
Frazer v. Shelton,
320 Ill. 253, 150 N.E. 696 (1926): can't license public accountants.
Rawles v. Jenkins,
212 Ky. 287, 279 S.W. 350 (1926): can't license real estate agents.
Doe v. Jones,
327 Ill. 387, 158 N.E. 703 (1927): can't license private surveyors.
Dasch v. Jackson,
170 Md. 251, 183 A. 534 (1936): paper hangers can't be licensed.
S.S. Kresge Co.
v. Couzens, 290 Mich. 185, 287 N.W. 427 (1939): can't license florists.
State v. Harris,
216 N.C. 746, 6 S.E.2d 854 (1940): can't license dry cleaners.
Palmer v. Smith,
229 N.C. 612, 51 S.E.2d 8 (1948): can't control opticians.