Guest Essayist: Robert Lowry Clinton

United States v. Carolene Products Co. 304 U. S. 144 (1938)

This case belongs to a string of cases dating from the late nineteenth century involving substitute or imitation dairy products. Carolene Products arose from a controversy over “Milnut,” a beverage made from mixing skimmed milk with another product that is not milk fat (usually vegetable oil, in this case, coconut oil). In 1923, Congress passed the Filled Milk Act, which prohibited the transportation of filled milk in interstate commerce. Despite the fact that congressional investigators concluded that filled milk was not harmful in itself but was problematic only when falsely labelled and marketed as real milk, the statute nonetheless declared that filled milk was “an adulterated article of food, injurious to the public health,” and a “fraud upon the public.”

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Guest Essayist: Robert Lowry Clinton

Palko v. Connecticut resulted from the appeal of a capital murder conviction. Palko was charged with killing a police officer during the commission of an armed robbery. Although he was charged with first degree murder, he was convicted of second degree murder and sentenced to life in prison. The state of Connecticut appealed the sentence, alleging that the trial judge had failed to admit relevant testimony and given erroneous instructions to the jury. The state supreme court ordered a retrial, at the conclusion of which Palko was convicted of first degree murder and sentenced to death. Palko appealed the second conviction and sentence in the state courts but lost, after which he petitioned the United States Supreme Court, arguing that the second trial amounted to double jeopardy in violation of the Fifth Amendment of the United States Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Palko argued further that protection against double jeopardy was an essential ingredient of the due process of law guaranteed by the Fourteenth Amendment, which provides that no state may deprive a person of life, liberty or property without due process of law. This amendment, designed primarily to safeguard the rights of newly-freed slaves, had been adopted in the aftermath of the Civil War in 1868.

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Guest Essayist: Robert Lowry Clinton

Pollock v. Farmer’s Loan & Trust Company, 158 U. S. 601 (1895), arose when a stockholder of the company sued to prevent the company from voluntarily paying a tax on its profits. The tax had been assessed pursuant to an act of Congress that levied a tax of two percent per year on incomes over $4,000.00. The act, known as the Wilson-Gorman Tariff Act of 1894, was very broad in scope, and was initially designed to lower tariff rates in response to the Panic of 1893. Evidently many additions and exceptions were added to the bill before its final passage, and President Grover Cleveland, initially supportive of the measure, ultimately allowed the law to be passed without his signature.

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Guest Essayist: Professor Robert Lowry Clinton


McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819), is widely regarded as the landmark case defining the boundaries of power between national and state government in the American federal system. In McCulloch, the United States Supreme Court, in a unanimous opinion written by Chief Justice John Marshall, explored the extent of implied congressional power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution. The Court also determined the effect of the National Supremacy Clause in Article VI when an exercise of state authority conflicts with a national law.

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Guest Essayist: Robert Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale

The elevation of Woodrow Wilson to the presidency of the United States is a defining moment in American history. It signaled the triumph of an ideology destined to transform the United States Constitution from an instrument of limited government to one of consolidation, much as had been feared by0 the Antifederalist Brutus more than a century before. That ideology is known as “progressivism,” the essentials of which are laid out clearly and unapologetically in Wilson’s “What Is Progress?” Included in these essentials are: belief in the perfectibility of human beings and human societies, demonization of the past and devaluation of time-honored traditions, and the worship of science and technology. Read more

Essayist: Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale

President George Washington’s famous letter “To the Hebrew Congregation in Newport, Rhode Island” of August 18, 1790, is a response to a letter of the previous day penned by Moses Seixas on behalf of Congregation Yeshuat Israel. Seixas’s letter gives thanks to God for the religious liberty afforded at last by a government “erected by the Majesty of the People” and an “equal and benign administration.” This, after centuries of persecution and oppression of the descendants of Abraham by governments worldwide. Read more

Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.