Chapter 12 Visual Impairments WorksheetWatch the following vi.docx

Chapter 12: Visual Impairments Worksheet
Watch the following video to enhance your knowledge about
visual impairments and how to accommodate students with
visual
impairments. https://www.youtube.com/watch?v=77fyMsRWrY
s. You will be watching a variety of teaching strategies and
techniques.
A. What guiding strategies/techniques mentioned in the video?
B. What interesting strategies/techniques mentioned in the
video for running with a guide and individually (even on a
treadmill)?
C. How would the auditory technique be used with visually
impaired individuals?
D. Can you list 4 teaching strategies that you can use with
individuals with visual impairments? What are they talking
about when say “preteaching”?
E. What is the “whole-part-whole “teaching technique?
F. How would you use “task analysis” for those with visual
impairment?
G. What is the difference between “Tactile Modeling”,
“Coactive Movement”, and “Physical guidance”? How would
these concepts benefit learn a physical skill?
H. List at least 6 ideas did you hear about adapting activities
(equipment, rules, boundaries, instruction, and environment)
I. What are the areas of “Expanded core curriculum”. Why do
you think it is important?
J. List 4 things that you catch about “personal” and “emotional”
safety?

Excerpts from the Majority Opinion in Rasul v. Bush
(2004)
Petitioners in these cases are 2 Australian citizens and 12
Kuwaiti citizens who were captured
abroad during hostilities between the United States and the
Taliban. Since early 2002, the U.S.
military has held them–along with, according to the
Government’s estimate, approximately 640
other non-Americans captured abroad–at the Naval Base at
Guantanamo Bay. Brief for United
States 6. The United States occupies the Base, which comprises
45 square miles of land and water
along the southeast coast of Cuba, pursuant to a 1903 Lease
Agreement executed with the newly
independent Republic of Cuba in the aftermath of the Spanish-
American War. Under the
Agreement, “the United States recognizes the continuance of the
ultimate sovereignty of the
Republic of Cuba over the [leased areas],” while “the Republic
of Cuba consents that during the
period of the occupation by the United States … the United
States shall exercise complete
jurisdiction and control over and within said areas.” In 1934,
the parties entered into a treaty
providing that, absent an agreement to modify or abrogate the
lease, the lease would remain in
effect “[s]o long as the United States of America shall not
abandon the … naval station of
Guantanamo.”
In 2002, petitioners, through relatives acting as their next

friends, filed various actions in the U.S.
District Court for the District of Columbia challenging the
legality of their detention at the Base.
All alleged that none of the petitioners has ever been a
combatant against the United States or has
ever engaged in any terrorist acts. They also alleged that none
has been charged with any
wrongdoing, permitted to consult with counsel, or provided
access to the courts or any other
tribunal.
The question now before us is whether the habeas statute
confers a right to judicial review of the legality of
Executive detention of aliens in a territory over which the
United States exercises plenary and exclusive
jurisdiction, but not “ultimate sovereignty.”
Application of the habeas statute to persons detained at the base
is consistent with the historical
reach of the writ of habeas corpus. At common law, courts
exercised habeas jurisdiction over the
claims of aliens detained within sovereign territory of the
realm, as well as the claims of persons
detained in the so-called “exempt jurisdictions,” where ordinary
writs did not run, and all other
dominions under the sovereign’s control. As Lord Mansfield
wrote in 1759, even if a territory was
“no part of the realm,” there was “no doubt” as to the court’s
power to issue writs of habeas corpus
if the territory was “under the subjection of the Crown.” King v.
Cowle, 2 Burr. 834, 854—855, 97
Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the
reach of the writ depended not on
formal notions of territorial sovereignty, but rather on the
practical question of “the exact extent

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and nature of the jurisdiction or dominion exercised in fact by
the Crown.” Ex parte Mwenya,
[1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.)
In the end, the answer to the question presented is clear.
Petitioners contend that they are being
held in federal custody in violation of the laws of the United
States.
No party questions the District Court’s jurisdiction over
petitioners’ custodians. Cf. Braden, 410
U.S., at 495. Section 2241, by its terms, requires nothing more.
We therefore hold that §2241
confers on the District Court jurisdiction to hear petitioners’
habeas corpus challenges to the
legality of their detention at the Guantanamo Bay Naval Base.
Whether and what further proceedings may become necessary
after respondents make their
response to the merits of petitioners’ claims are matters that we
need not address now. What is
presently at stake is only whether the federal courts have
jurisdiction to determine the legality of
the Executive’s potentially indefinite detention of individuals
who claim to be wholly innocent of
wrongdoing. Answering that question in the affirmative, we
reverse the judgment of the Court of
Appeals and remand for the District Court to consider in the
first instance the merits of petitioners’
claims.

Excerpts from the Majority Opinion in Hamdi v.
Rumsfeld (2004)
Even in cases in which the detention of enemy combatants is
legally authorized, there remains the question
of what process is constitutionally due to a citizen who disputes
his enemy-combatant status. Hamdi argues
that he is owed a meaningful and timely hearing and that “extra-
judicial detention [that] begins and ends with
the submission of an affidavit based on third-hand hearsay”
does not comport with the Fifth and Fourteenth
Amendments. Brief for Petitioners 16. The Government
counters that any more process than was provided
below would be both unworkable and “constitutionally
intolerable.” Brief for Respondents 46. Our
resolution of this dispute requires a careful examination both of
the writ of habeas corpus, which Hamdi now
seeks to employ as a mechanism of judicial review, and of the
Due Process Clause, which informs the
procedural contours of that mechanism in this instance.
At the same time, the exigencies of the circumstances may
demand that, aside from these core
elements, enemy combatant proceedings may be tailored to
alleviate their uncommon potential to
burden the Executive at a time of ongoing military conflict.
Hearsay, for example, may need to be
accepted as the most reliable available evidence from the
Government in such a proceeding.
Likewise, the Constitution would not be offended by a
presumption in favor of the Government’s
evidence, so long as that presumption remained a rebuttable one
and fair opportunity for rebuttal
were provided.Thus, once the Government puts forth credible
evidence that the habeas petitioner

meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence
https://www.law.cornell.edu/supct/html/03-334.ZO.html#FN14
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https://www.law.cornell.edu/supct-cgi/get-const?amendmentxiv
with more persuasive evidence that he falls outside the criteria.
A burden-shifting scheme of
this sort would meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid
worker has a chance to prove military error while giving due
regard to the Executive once it has
put forth meaningful support for its conclusion that the detainee
is in fact an enemy combatant. In
the words of Mathews, process of this sort would sufficiently
address the “risk of erroneous
deprivation” of a detainee’s liberty interest while eliminating
certain procedures that have
questionable additional value in light of the burden on the
Government. 424 U.S., at 335
We think it unlikely that this basic process will have the dire
impact on the central functions of
warmaking that the Government forecasts. The parties agree
that initial captures on the battlefield
need not receive the process we have discussed here; that
process is due only when the
determination is made to continue to hold those who have been
seized. The Government has made
clear in its briefing that documentation regarding battlefield
detainees already is kept in the
ordinary course of military affairs. Brief for Respondents 3—4.
Any factfinding imposition
created by requiring a knowledgeable affiant to summarize these

records to an independent
tribunal is a minimal one. Likewise, arguments that military
officers ought not have to wage war
under the threat of litigation lose much of their steam when
factual disputes at enemy-combatant
hearings are limited to the alleged combatant’s acts. This focus
meddles little, if at all, in the
strategy or conduct of war, inquiring only into the
appropriateness of continuing to detain an
individual claimed to have taken up arms against the United
States. While we accord the greatest
respect and consideration to the judgments of military
authorities in matters relating to the actual
prosecution of a war, and recognize that the scope of that
discretion necessarily is wide, it does not
infringe on the core role of the military for the courts to
exercise their own time-honored and
constitutionally mandated roles of reviewing and resolving
claims like those presented here. Cf.
Korematsu v. United States, 323 U.S. 214, 233—234 (1944)
(Murphy, J., dissenting) (“[L]ike
other claims conflicting with the asserted constitutional rights
of the individual, the military claim
must subject itself to the judicial process of having its
reasonableness determined and its conflicts
with other interests reconciled”); Sterling v. Constantin, 401
(1932) (“What are the allowable
limits of military discretion, and whether or not they have been
overstepped in a particular case,
are judicial questions”).
Excerpts from the Majority Opinion in Hamdan v.
Rumsfeld (2006)
The military commission, a tribunal neither mentioned in the

Constitution nor created by statute, was born of military
necessity. See W. Winthrop, Military Law and Precedents 831
https://www.law.cornell.edu/supct-cgi/get-us-cite?323+214
(rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed
in some respects by earlier tribunals like the Board of General
Officers that General Washington convened to try British Major
John André for spying during the Revolutionary War, the
commission “as such” was inaugurated in 1847. Id., at 832; G.
Davis, A Treatise on the Military Law of the United States 308
(2d ed. 1909) (hereinafter Davis). As commander of occupied
Mexican territory, and having available to him no other
tribunal,
General Winfield Scott that year ordered the establishment of
both “ ‘military commissions’ ” to try ordinary crimes
committed
in the occupied territory and a “council of war” to try offenses
against the law of war. Winthrop 832 (emphases in original).
Quirin is the model the Government invokes most frequently to
defend the commission convened to try Hamdan. That is both
appropriate and unsurprising. Since Guantanamo Bay is neither
enemy-occupied territory nor under martial law, the law-of-war
commission is the only model available. At the same time, no
more robust model of executive power exists; Quirin represents
the high-water mark of military power to try enemy combatants
for war crimes.
At a minimum, the Government must make a substantial
showing
that the crime for which it seeks to try a defendant by military
commission is acknowledged to be an offense against the law of

war. That burden is far from satisfied here. The crime of
“conspiracy” has rarely if ever been tried as such in this country
by any law-of-war military commission not exercising some
other form of jurisdiction,35 and does not appear in either the
Geneva Conventions or the Hague Conventions—the major
treaties on the law of war.36 Winthrop explains that under the
common law governing military commissions, it is not enough
to
intend to violate the law of war and commit overt acts in
furtherance of that intention unless the overt acts either are
themselves offenses against the law of war or constitute steps
sufficiently substantial to qualify as an attempt. See Winthrop
841 (“[T]he jurisdiction of the military commission should be
restricted to cases of offence consisting in overt acts, i.e., in
unlawful commissions or actual attempts to commit, and not in
intentions merely” (emphasis in original)).
Finally, international sources confirm that the crime charged
here
is not a recognized violation of the law of war.38 As observed
above, see supra, at 40, none of the major treaties governing the
law of war identifies conspiracy as a violation thereof. And the
only “conspiracy” crimes that have been recognized by
international war crimes tribunals (whose jurisdiction often
extends beyond war crimes proper to crimes against humanity
and crimes against the peace) are conspiracy to commit
genocide
and common plan to wage aggressive war, which is a crime
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against the peace and requires for its commission actual

participation in a “concrete plan to wage war.” 1 Trial of the
Major War Criminals Before the International Military
Tribunal:
Nuremberg, 14 November 1945–1 October 1946, p. 225 (1947).
The International Military Tribunal at Nuremberg, over the
prosecution’s objections, pointedly refused to recognize as a
violation of the law of war conspiracy to commit war crimes,
see,
e.g., 22 id., at 469,39 and convicted only Hitler’s most senior
associates of conspiracy to wage aggressive war, see S.
Pomorski, Conspiracy and Criminal Organization, in the
Nuremberg Trial and International Law 213, 233–235 (G.
Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent
figure
from the Nuremberg trials has explained, members of the
Tribunal objected to recognition of conspiracy as a violation of
the law of war on the ground that “[t]he Anglo-American
concept
of conspiracy was not part of European legal systems and
arguably not an element of the internationally recognized laws
of
war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal
Memoir 36 (1992); see also id., at 550 (observing that Francis
Biddle, who as Attorney General prosecuted the defendants in
Quirin, thought the French judge had made a “ ‘persuasive
argument that conspiracy in the truest sense is not known to
international law’ ”).
We have assumed, as we must, that the allegations made in the
Government’s charge against Hamdan are true. We have
assumed, moreover, the truth of the message implicit in that
charge—viz., that Hamdan is a dangerous individual whose

beliefs, if acted upon, would cause great harm and even death to
innocent civilians, and who would act upon those beliefs if
given
the opportunity. It bears emphasizing that Hamdan does not
challenge, and we do not today address, the Government’s
power
to detain him for the duration of active hostilities in order to
prevent such harm. But in undertaking to try Hamdan and
subject
him to criminal punishment, the Executive is bound to comply
with the Rule of Law that prevails in this jurisdiction.
Excerpts from the Majority Opinion in Boumediene v.
Bush (2008) by Justice Kennedy
After Hamdi, the Deputy Secretary of Defense established
Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at Guantanamo were
“enemy combatants,” as the Department
defines that term.
Interpreting the AUMF, the Department of Defense ordered the
detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan,
others in places as far away from there as Bosnia and Gambia.
All are foreign nationals, but none is a citizen
of a nation now at war with the United States. Each denies he is
a member of the al Qaeda terrorist network
that carried out the September 11 attacks or of the Taliban
regime that provided sanctuary for al Qaeda. Each
petitioner appeared before a separate CSRT; was determined to
be an enemy combatant; and has sought a
writ of habeas corpus in the United States District Court for the

District of Columbia.
In deciding the constitutional questions now presented we must
determine whether petitioners are barred
from seeking the writ or invoking the protections of the
Suspension Clause either because of their status, i.e.,
petitioners’ designation by the Executive Branch as enemy
combatants, or their physical location, i.e., their
presence at Guantanamo Bay. The Government contends that
noncitizens designated as enemy combatants
and detained in territory located outside our Nation’s borders
have no constitutional rights and no privilege
of habeas corpus. Petitioners contend they do have cognizable
constitutional rights and that Congress, in
seeking to eliminate recourse to habeas corpus as a means to
assert those rights, acted in violation of the
Suspension Clause.
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at least as
applied to noncitizens, the Constitution
necessarily stops where de jure sovereignty ends . . .
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th century
when the Nation acquired noncontiguous
Territories: Puerto Rico, Guam, and the Philippines—ceded to
the United States by Spain at the conclusion
of the Spanish-American War—and Hawaii—annexed by the
United States in 1898. At this point Congress
chose to discontinue its previous practice of extending
constitutional rights to the territories by statute.

The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies of
this approach. The United States has
maintained complete and uninterrupted control of the bay for
over 100 years. At the close of the
Spanish-American War, Spain ceded control over the entire
island of Cuba to the United States and
specifically “relinquishe[d] all claim[s] of sovereignty … and
title.” See Treaty of Paris, Dec. 10, 1898, U.
S.-Spain, Art. I, 30Stat. 1755, T. S. No. 343. From the date the
treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United States
governed the territory “in trust” for the benefit
of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901) ; H. Thomas, Cuba or The Pursuit of
Freedom 436, 460 (1998). And although it recognized, by
entering into the 1903 Lease Agreement, that
Cuba retained “ultimate sovereignty” over Guantanamo, the
United States continued to maintain the same
plenary control it had enjoyed since 1898. Yet the
Government’s view is that the Constitution had no effect
there, at least as to noncitizens, because the United States
disclaimed sovereignty in the formal sense of the
term. The necessary implication of the argument is that by
surrendering formal sovereignty over any
unincorporated territory to a third party, while at the same time
entering into a lease that grants total control
over the territory back to the United States, it would be possible
for the political branches to govern without
legal constraint.
Our basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply.

Even when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are
subject “to such restrictions as are expressed in the
Constitution.
It is true that before today the Court has never held that
noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty have
any rights under our Constitution. But the
cases before us lack any precise historical parallel. They
involve individuals detained by executive order for
the duration of a conflict that, if measured from September 11,
2001, to the present, is already among the
longest wars in American history. See Oxford Companion to
American Military History 849 (1999). The
detainees, moreover, are held in a territory that, while
technically not part of the United States, is under the
http://www.law.cornell.edu/supremecourt//text/180/109
complete and total control of our Government. Under these
circumstances the lack of a precedent on point is
no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect
at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us, Congress
must act in accordance with the requirements
of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia,
J., dissenting) (“[I]ndefinite imprisonment on
reasonable suspicion is not an available option of treatment for
those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de facto
suspension by abstaining from these
controversies. See Hamdan, 548 U. S., at 585, n. 16

(“[A]bstention is not appropriate in cases … in which
the legal challenge ‘turn[s] on the status of the persons as to
whom the military asserted its power’ ” (quoting
Schlesinger v. Councilman, 420 U. S. 738, 759 (1975) )). The
MCA does not purport to be a formal
suspension of the writ; and the Government, in its submissions
to us, has not argued that it is. Petitioners,
therefore, are entitled to the privilege of habeas corpus to
challenge the legality of their detention.
Our opinion does not undermine the Executive’s powers as
Commander in Chief. On the contrary, the
exercise of those powers is vindicated, not eroded, when
confirmed by the Judicial Branch. Within the
Constitution’s separation-of-powers structure, few exercises of
judicial power are as legitimate or as
necessary as the responsibility to hear challenges to the
authority of the Executive to imprison a person.
Some of these petitioners have been in custody for six years
with no definitive judicial determination as to
the legality of their detention. Their access to the writ is a
necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief they
seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the
outer boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to
us for years to come, the Court might not have this luxury. This
result is not inevitable, however. The
political branches, consistent with their independent obligations
to interpret and uphold the Constitution, can
engage in a genuine debate about how best to preserve
constitutional values while protecting the Nation from
terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J.,

concurring) (“[J]udicial insistence upon that
consultation does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—through
democratic means—how best to do so”).
It bears repeating that our opinion does not address the content
of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that petitioners
may invoke the fundamental procedural
protections of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and
in our system they are reconciled within the
framework of the law. The Framers decided that habeas corpus,
a right of first importance, must be a part of
that framework, a part of that law.
Targeted Killing
http://www.law.cornell.edu/supremecourt//text/420/738
Minimum Confirmed Strikes 6786
Total Killed 8459 - 12,105
Civilians Killed 769 - 1725
Children Killed 253 - 397
Source: https://www.thebureauinvestigates.com/projects/drone-

war
Obama Drone Strike Guidelines:
https://www.aclu.org/sites/default/files/field_document/presiden
tial_policy_guidance.pdf
Drone Memos:
https://www.theguardian.com/us-news/ng-
interactive/2016/nov/15/drone-memos-documents-president-pow
er-kill
The Drone Presidency:
https://www.nybooks.com/articles/2016/08/18/the-drone-
presidency/
Targeted Killing:
https://www.brookings.edu/research/targeted-killing-in-u-s-
counterterrorism-strategy-and-law/

https://www.thebureauinvestigates.com/projects/drone-war
https://www.aclu.org/sites/default/files/field_document/presiden
tial_policy_guidance.pdf
interactive/2016/nov/15/drone-memos-documents-president-
power-kill
interactive/2016/nov/15/drone-memos-documents-president-
power-kill
https://www.nybooks.com/articles/2016/08/18/the-drone-
presidency/
https://www.brookings.edu/research/targeted-killing-in-u-s-
counterterrorism-strategy-and-law/
Excerpts from the Majority Opinion in U.S. v. Dennis (1951)
Overthrow of the Government by force and violence is certainly
a substantial enough interest for the Government to limit
speech. Indeed, this is the ultimate value of any society, for if a
society cannot protect its very structure from armed internal
attack, it must follow that no subordinate value can be
protected. If, then, this interest may be protected, the literal
problem which is presented is what has been meant by the use
of the phrase "clear and present danger" of the utterances
bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that, before the Government
may act, it must wait until the putsch is about to be executed,
the plans have been laid and the signal is awaited. If
Government is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to commit them to a
course whereby they will strike when the leaders feel the
circumstances permit, action by the Government is required.
The argument that there is no need for Government to concern
itself, for Government is strong, it possesses ample powers to
put down a rebellion, it may defeat the revolution with ease
needs no answer. For that is not the question. Certainly an
attempt to overthrow the Government by force, even though

doomed from the outset because of inadequate numbers or
power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically
and politically to a nation makes it impossible to measure the
validity in terms of the probability of success, or the immediacy
of a successful attempt. In the instant case, the trial judge
charged the jury that they could not convict unless they found
that petitioners intended to overthrow the Government"as
speedily as circumstances would permit." This does not mean,
and could not properly mean, that they would not strike until
there was certainty of success. What was meant was that the
revolutionists would strike when they thought the time was ripe.
We must therefore reject the contention that success or
probability of success is the criterion.
We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not
inherently, or as construed or applied in the instant case, violate
the First Amendment and other provisions of the Bill of Rights,
or the First and Fifth Amendments because of indefiniteness.
Petitioners intended to overthrow the Government of the United
States as speedily as the circumstances would permit. Their
conspiracyto organize the Communist Party and to teach and
advocate the overthrow of the Government of the United States
by force and violence created a "clear and present danger" of an
attempt to overthrow the Government by force and violence.
They were properly and constitutionally convicted for violation
of the Smith Act. The judgments of conviction are
Affirmed.
Excerpts from the Decision in Adler v. Board of Education
(1951)
The preamble of the Feinberg Law, § 1, makes elaborate
findings that members of subversive groups, particularly of the
Communist Party and its affiliated organizations, have been
infiltrating into public employment in the public schools of the
State; that this has occurred and continues notwithstanding the
existence of protective statutes designed to prevent the

appointment to or retention in employment in public office, and
particularly in the public schools, of members of any
organizations which teach or advocate that the government of
the United States or of any state or political subdivision thereof
shall be overthrown by force or violence or by any other
unlawful means. As a result, propaganda can be disseminated
among the children by those who teach them and to whom they
look for guidance, authority, and leadership. The Legislature
further found that the members of such groups use their
positions to advocate and teach their doctrines, and are
frequently bound by oath, agreement, pledge, or understanding
to follow, advocate and teach a prescribed party line or group
dogma or doctrine without regard to truth or free inquiry. This
propaganda, the Legislature declared, is sufficiently subtle to
escape detection in the classroom; thus, the menace of such
infiltration into the classroom is difficult to measure. Finally, to
protect the children from such influence, it was thought
essential that the laws prohibiting members of such groups,
such as the Communist Party or its affiliated organizations,
from obtaining or retaining employment in the public schools be
rigorously enforced. It is the purpose of the Feinberg Law to
provide for the disqualification and removal of superintendents
of schools, teachers, and employees in the public schools in any
city or school district of the State who advocate the overthrow
of the Government by unlawful means or who are members of
organizations which have a like purpose.
It is clear that such persons have the right under our law to
assemble, speak, think and believe as they will.Communications
Assn. v. Douds, 339 U.S. 382. It is equally clear that they have
no right to work for the State in the school system on their own
terms. United Public Workers v. Mitchell, 330 U.S. 75. They
may work for the school system upon the reasonable terms laid
down by the proper authorities of New York. If they do not
choose to work on such terms, they are at liberty to retain their
beliefs and associations and go elsewhere. Has the State thus

deprived them of any right to free speech or assembly? We
think not. Such persons are or may be denied, under the statutes
in question, the privilege of working for the school system of
the State of New York because, first, of their advocacy of the
overthrow of the government by force or violence, or, secondly,
by unexplained membership in an organization found by the
school authorities, after notice and hearing, to teach and
advocate the overthrow of the government by force or violence,
and known by such persons to have such purpose.Excerpts from
the Majority & Concurring Opinions in Yates v. U.S. (1957)We
are thus faced with the question whether the Smith Act prohibits
advocacy and teaching of forcible overthrow as an abstract
principle, divorced from any effort to instigate action to that
end, so long as such advocacy or teaching is engaged in with
evil intent. We hold that it does not. ... In failing to distinguish
between advocacy of forcible overthrow as an abstract doctrine
and advocacy of action to that end, the District Court appears to
have been led astray by the holding in Dennisthat advocacy of
violent action to be taken at some future time was enough.In a
concurring opinion Justice Hugo Black wrote:Doubtlessly,
dictators have to stamp out causes and beliefs which they deem
subversive to their evil regimes. But governmental suppression
of causes and beliefs seems to me to be the very antithesis of
what our Constitution stands for. The choice expressed in the
First Amendment in favor of free expression was made against a
turbulent background by men such as Jefferson, Madison, and
Mason – men who believed that loyalty to the provisions of this
Amendment was the best way to assure a long life for this new
nation and its Government. ... The First Amendment provides
the only kind of security system that can preserve a free
government – one that leaves the way wide open for people to
favor, discuss, advocate, or incite causes and doctrines however
obnoxious and antagonistic such views may be to the rest of us.

Excerpts from the Majority Opinion in Cole v. Young (1956)
. . . If Congress intended the term to have such a broad meaning
that all positions in the Government could be said to be affected
with the "national security," the result would be that the 1950
Act, though in form but an exception to the general personnel
laws, could be utilized effectively to supersede those laws. For
why could it not be said that national security in that sense
requires not merely loyal and trustworthy employees but also
those that are industrious and efficient? The relationship of the
job to the national security being the same, its demonstrated
inadequate performance because of inefficiency or
incompetence would seem to present a surer threat to national
security, in the sense of the general welfare, than a mere doubt
as to the employee's loyalty.
Finally, the conclusion we draw from the face of the Act that
"national security" was used in a limited and definite sense is
amply supported by the legislative history of the Act.
From our holdings (1) that not all positions in the Government
are affected with the "national security" as that term is used in
the 1950 Act, and (2) that no determination has been made that
petitioner's position was one in which he could adversely affect
the "national security," it necessarily follows that petitioner's
discharge was not authorized by the 1950 Act. In reaching this
conclusion, we are not confronted with the problem of
reviewing the Secretary's exercise of discretion, since the basis
for our decision is simply that the standard prescribed by the
Executive Order and applied by the Secretary is not in

conformity with the Act. Since petitioner's discharge was not
authorized by the 1950 Act and hence violated the Veterans'
Preference Act, the judgment of the Court of Appeals is
reversed and the case is remanded to the District Court for
further proceedings not inconsistent with this opinion.
Excerpts from the Dissenting Opinion U.S. v. E.C. Knight
Company (1895) by Justice Harlan
The power of Congress covers and protects the absolute
freedom of such intercourse and trade among the States as may
or must succeed manufacture and precede transportation from
the place of purchase. This would seem to be conceded; for, the
court in the present case expressly declare that
"contracts to buy, sell, or exchange goods to be transported
among the several States, the transportation and its
instrumentalities, and articles bought, sold, or exchanged for
the purpose of such transit among the States, or put in the way
of transit, may be regulated, but this is because they form part
of interstate trade or commerce."
Here is a direct admission -one which the settled doctrines of
this court justify-that contracts to buy and the purchasing of
goods to be transported from one State to another, and
transportation, with its instrumentalities, are all parts of
interstate trade or commerce. Each part of such trade is then
under the protection of Congress. And yet, by the opinion and
judgment in this case, if I do not misapprehend them, Congress
is without power to protect the commercial intercourse that such
purchasing necessarily involves against the restraints and
burdens arising from the existence of combinations that meet

purchasers, from whatever State they come, with the threat-for
it is nothing more nor less than a threat-that they shall not
purchase what they desire to purchase, except at the prices fixed
by such combinations. A citizen of Missouri has the right to go
in person, or send orders, to Pennsylvania and New Jersey for
the purpose of purchasing refined sugar. But of what value is
that right if he is confronted in those States by a vast
combination which absolutely controls the price of that article
by reason of its having acquired all the sugar refineries in the
United States in order that they may fix prices in their own
interest exclusively?
In my judgment, the citizens of the several States composing the
Union are entitled, of right, to buy goods in the State where
they are manufactured, or in any other State, without being
confronted by an illegal combination whose business extends
throughout the whole country, which by the law everywhere is
an enemy to the public interests, and which prevents such
buying, except at prices arbitrarily fixed by it. I insist that the
free course of trade among the States cannot coexist with such
combinations. When I speak of trade I mean the buying and
selling of articles of every kind that are recognized articles of
interstate commerce. Whatever improperly obstructs the free
course of interstate intercourse and trade, as involved in the
buying and selling of articles to be carried from one State to
another, may be reached by Congress, under its authority to
regulate commerce among the States. The exercise of that
authority so as to make trade among the States, in all
recognized articles of commerce, absolutely free from
unreasonable or illegal restrictions imposed by combinations, is
justified by an express grant of power to Congress and would
redound to the welfare of the whole country. I am unable to
perceive that any such result would imperil the autonomy of the
States, especially as that result cannot be attained through the
action of any one State.
Undue restrictions or burdens upon the purchasing of goods, in
the market for sale, to be transported to other states, cannot be

imposed even by a State without violating the freedom of
commercial intercourse guaranteed by the Constitution. But if a
State within whose limits the business of refining sugar is
exclusively carried on may not constitutionally impose burdens
upon purchases of sugar to be transported to other States, hOw
comes it that combinations of corporations or individuals,
within the same State, may not be prevented by the national
government from putting unlawful restraints upon the
purchasing of that article to be carried !rom the State in which
such purchases are made? If the national power is competent to
repress State action in restraint of interstate trade as it may be
involved in purchases of refined sugar to be transported from
one State to another State, surely it ought to be deemed
sufficient to prevent unlawful restraints attempted to be
imposed by combinations of corporations or individuals upon
those identical purchases; otherwise, illegal combinations of
corporations or individuals may-so far as national power and
interstate commerce are concerned-, with impunity, what no
State can do. .
In committing to Congress the control of commerce with foreign
nations and among the several States, the Constitution did not
define the means that may be employed to protect the freedom
of commercial intercourse and traffic established for the benefit
of all the people of the Union. It wisely forbore to impose any
limitations upon the exercise of that power except those arising
from the general nature of the government, or such as are
embodied in the fundamental guarantees of liberty and property.
It gives to Congress, in express words, authority to enact all
laws necessary and proper for carrying into execution the power
to regulate commerce; and whether an act of Congress, passed
to accomplish an object to which the general government is
competent, is within the power granted, must be determined by
the rule announced through Chief Justice Marshall three-
quarters of a century ago, and which has been repeatedly
affirmed by this court. That rule is:
"The sound construction of the Constitution must allow to the

national legislature the discretion with respect to the means by
which the powers it confers are to be carried into execution,
which will enable that body to perform the high duties assigned
to it in the manner most beneficial to the people. Let the end be
legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consistent with the letter and
spirit of the Constitution, are constitutional.”
We have before us the case of a combination which absolutely
controls, or may, at its discretion, control the price of all
refined sugar in this country. Suppose another combination,
organized for private gain and to control prices, should obtain
possession of all the large flour mills in the United States;
another, of all the grain elevators; another, of all the oil
territory; another, of all the saltproducing regions; another, of
all the cotton mills; and another, of all the great establishments
for slaughtering animals, and the preparation of meats. What
power is competent to protect the people of the United States
against such dangers except a national power-one that is capable
of exerting its sovereign authority throughout every part of the
territory and over all the people of the nation?
To the general government has been committed the control of
commercial intercourse among the States, to the end that it may
be free at all times from any restraints except such as Congress
may impose or permit for the benefit of the whole country. The
common government of all the people is the only one that can
adequately deal with a matter which directly and injuriously
affects the entire commerce of the country, which concerns
equally all the people of the Union, and which, it must be
confessed, cannot be adequately controlled by any one State. Its
authority should not be so weakened by construction that it
cannot reach and eradicate evils that, beyond all question, tend
to defeat an object which that government is entitled, by the
Constitution, to accomplish. . .

Excerpts from the Majority Opinion Northern Securities Co. v.
U.S. (1904) by Justice Harlan
The combination is, within the meaning of the act of Congress
of July 2, 1890, known as the Anti-Trust Act, a "trust"; but if
not, it is a combination in restraint of interstate and
international commerce, and that is enough to bring it under the
condemnation of the act.
From prior cases in this court, the following propositions are
deducible, and embrace this case:
Although the act of Congress known as the Anti-Trust Act has
no reference to the mere manufacture or production of articles
or commodities within the limits of the several States, it
embraces and declares to be illegal every contract, combination
or conspiracy, in whatever form, of whatever nature, and
whoever may be parties to it, which directly or necessarily
operates in restraint of trade or commerce among the several
States or with foreign nations.
The act is not limited to restraints of interstate and international
trade or commerce that are unreasonable in their nature, but
embraces all direct restraints, reasonable or unreasonable,
imposed by any combination, conspiracy or monopoly upon
such trade or commerce.
Railroad carriers engaged in interstate or international trade or
commerce are embraced by the act.
Combinations, even among private manufacturers or dealers,
whereby interstate or international commerce is restrained are
equally embraced by the act
Congress has the power to establish rules by which interstate
and international commerce shall be governed, and, by the Anti-
Trust Act, has prescribed the rule of free competition among
those engaged in such commerce.
Every combination or conspiracy which would extinguish
competition between otherwise competing railroads, engaged in

interstate trade or commerce, and which would in that way
restrain such trade or commerce, is made illegal by the act.
The natural effect of competition is to increase commerce, and
an agreement whose direct effect is to prevent this play of
competition restrains, instead of promotes, trade and commerce.
To vitiate a combination such as the act of Congress condemns,
it need not be shown that such combination, in fact, results, or
will result, in a total suppression of trade or in a complete
monopoly, but it is only essential to show that, by its necessary
operation, it tends to restrain interstate or international trade or
commerce, or tends to create a monopoly in such trade or
commerce, and to deprive the public of the advantages that flow
from free competition.
The constitutional guarantee of liberty of contract does not
prevent Congress from prescribing the rule of free competition
for those engaged in interstate and international commerce.
Under its power to regulate commerce among the several States
and with foreign nations, Congress had authority to enact the
statute in question. Congress may protect the freedom of
interstate commerce by any means that are appropriate and that
are lawful and not prohibited by the Constitution.
If, in the judgment of Congress, the public convenience or the
general welfare will be best subserved when the natural laws of
competition are left undisturbed by those engaged in interstate
commerce, that must be, for all, the end of the matter if this is
to remain a government of laws, and not of men.
When Congress declared contracts, combinations and
conspiracies in restraint of trade or commerce to be illegal, it
did nothing more than apply to interstate commerce a rule that
had been long applied by the several States when dealing with
combinations that were in restraint of their domestic commerce.
Subject to such restrictions as are imposed by the Constitution
upon the exercise of all power, the power of Congress over
interstate and international commerce is as full and complete as
is the power of any State over its domestic commerce.
No State can, by merely creating a corporation, or in any other

mode, project its authority into other States so as to prevent
Congress from exerting the power it possesses under the
Constitution over interstate and international commerce, or so
as to exempt its corporation engaged in interstate commerce
from obedience to any rule lawfully established by Congress for
such commerce; nor can any State give a corporation created
under its laws authority to restrain interstate or international
commerce against the will of the nation as lawfully expressed
by Congress. Every corporation created by a State is necessarily
subject to the supreme law of the land.
Whilst every instrumentality of domestic commerce is subject to
state control, every instrumentality of interstate commerce may
be reached and controlled by national authority, so far as to
compel it to respect the rules for such commerce lawfully
established by Congress.
Excerpts from the Dissenting Opinion Northern Securities Co.
v. U.S. (1904) by Justice Brewer
The act of July 2, 1890, was leveled, as appears by its title, at
only unlawful restraints and monopolies. Congress did not
intend to reach and destroy those minor contracts in partial
restraint of trade which the long course of decisions at common
law had affirmed were reasonable, and ought to be upheld.
The general language of the act is limited by the power which
each individual has to manage his own property and determine
the place and manner of its investment. Freedom of action in
these respects is among the inalienable rights of every citizen.
A corporation, while by fiction of law recognized for some
purposes as a person and for purposes of jurisdiction as a

citizen, is not endowed with the inalienable rights of a natural
person, but it is an artificial person, created and existing only
for the convenient transaction of business.
Where, however, no individual investment is involved, but there
is a combination by several individuals separately owning stock
in two competing railroad companies engaged in interstate
commerce, to place the control of both in a single corporation,
which is organized for that purpose expressly, and as a mere
instrumentality by which the competing railroads can be
combined, the resulting combination is a direct restraint of trade
by destroying competition, and is illegal within the meaning of
the act of July 2, 1890.
A suit brought by the Attorney General of the United States to
declare this combination illegal under the act of July 2, 1890, is
not an interference with the control of the States under which
the railroad companies and the holding company were,
respectively, organized.
Excerpts from the Majority Opinion in Swift and Co. v. U.S.
(1905) by Justice Holmes
To sum up the bill more shortly, it charges a combination of a
dominant proportion of the dealers in fresh meat throughout the
United States not to bid against each other in the livestock
markets of the different States, to bid up prices for a few days
in order to induce the cattle men to send their stock to the
stockyards, to fix prices at which they will sell, and to that end
to restrict shipments of meat when necessary, to establish a
uniform rule of credit to dealers and to keep a blacklist, to make
uniform and improper charges for cartage, and finally, to get
less than lawful rates from the railroads to the exclusion of

competitors. It is true that the last charge is not clearly stated to
be a part of the combination. But, as it is alleged that the
defendants have each and all made arrangements with the
railroads, that they were exclusively to enjoy the unlawful
advantage, and that their intent in what they did was to
monopolize the commerce and to prevent competition, and in
view of the general allegation to which we shall refer, we think
that we have stated correctly the purport of the bill. It will be
noticed further that the intent to monopolize is alleged for the
first time in the eighth section of the bill as to raising, lowering
and fixing prices. In the earlier sections, the intent alleged is to
restrain competition among themselves. But after all the
specific charges, there is a general allegation that the
defendants are conspiring with one another, the railroads and
others, to monopolize the supply and distribution of fresh meats
throughout the United States, etc., as has been stated above, and
it seems to us that this general allegation of intent colors and
applies to all the specific charges of the bill. Whatever may be
thought concerning the proper construction of the statute, a bill
in equity is not to be read and construed as an indictment would
have been read and construed a hundred years ago, but it is to
be taken to mean what it fairly conveys to a dispassionate
reader by a fairly exact use of English speech. Thus, read, this
bill seems to us intended to allege successive elements of a
single connected scheme.
The injunction, however, refers not to trade among the States in
cattle, concerning which there can be no question of original
packages, but to trade in fresh meats, as the trade forbidden to
be restrained, and it is objected that the trade in fresh meats
described in the second and third sections of the bill is not
commerce among the States, because the meat is sold at the
slaughtering places, or, when sold elsewhere, may be sold in
less than the original packages. But the allegations of the
second section, even if they import a technical passingof title at
the slaughtering places, also import that the sales are to persons
in other States, and that the shipments to other States are part of

the transaction -- "pursuant to such sales" -- and the third
section imports that the same things which are sent to agents are
sold by them, and sufficiently indicates that some, at least, of
the sales are of the original packages. Moreover, the sales are
by persons in one State to persons in another. But we do not
mean to imply that the rule which marks the point at which state
taxation or regulation becomes permissible necessarily is
beyond the scope of interference by Congress in cases where
such interference is deemed necessary for the protection of
commerce among the States. Nor do we mean to intimate that
the statute under consideration is limited to that point. Beyond
what we have said above, we leave those questions as we find
them. They were touched upon in the Northern Securities
Company's case.
We are of opinion, further, that the charge in the sixth section is
not too vague. The charge is not of a single agreement, but of a
course of conduct intended to be continued. Under the act, it is
the duty of the court, when applied to, to stop the conduct. The
thing done and intended to be done is perfectly definite: with
the purpose mentioned, directing the defendants' agents and
inducing each other to refrain from competition in bids. The
defendants cannot be ordered to compete, but they properly can
be forbidden to give directions or to make agreements not to
compete. See Addyston Pipe & Steel Co. v. United States. The
injunction follows the charge. No objection was made on the
ground that it is not confined to the places specified in the bill.
It seems to us, however, that it ought to set forth more exactly
the transactions in which such directions and agreements are
forbidden. The trade in fresh meat referred to should be defined
somewhat as it is in the bill, and the sales of stock should be
confined to sales of stock at the stockyards named, which stock
is sent from other States to the stockyards for sale or is bought
at those yards for transport to another State.
But nothing herein shall be construed to prohibit the said
defendants from agreeing upon charges for cartage and delivery,
and other incidents connected with local sales, where such

charges are not calculated to have any effect upon competition
in the sales and delivery of meats; nor from establishing and
maintaining rules for the giving of credit to dealers where such
rules in good faith are calculated solely to protect the
defendants against dishonest or irresponsible dealers, nor from
curtailing the quantity of meats shipped to a given market where
the purpose of such arrangement in good faith is to prevent the
over-accumulation of meats as perishable articles in such
markets.
Nor shall anything herein contained be construed to restrain or
interfere with the action of any single company or firm, by its
or their officers or agents (whether such officers or agents are
themselves personally made parties defendant hereto or not)
acting with respect to its or their own corporate or firm
business, property or affairs.
Excerpts from the Majority Opinion in Hammer v. Dagenhart
(1918) by Justice Day
The power essential to the passage of this act, the Government
contends, is found in the commerce clause of the Constitution
which authorizes Congress to regulate commerce with foreign
nations and among the states. In Gibbons v. Ogden . . . Chief
Justice Marshall, speaking for this court, and defining the
extent and nature of the commerce power, said, “It is the power

to regulate; that is, to prescribe the rule by which commerce is
to be governed.” In other words, the power is one to control the
means by which commerce is carried on, which is directly the
contrary of the assumed right to forbid commerce from moving
and thus destroy it as to particular commodities. . . . The thing
intended to be accomplished by this statute [Federal Child
Labor Act] is the denial of the facilities of interstate commerce
to those manufacturers in the States who employ children within
the prohibited ages. The act in its effect does not regulate
transportation among the States, but aims to standardize the
ages at which children may be employed in mining and
manufacturing within the States. Over interstate 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. That there should be limitations upon
the right to employ children in mines and factories in the
interest of their own and the public welfare, all will admit. It
may be desirable that such laws be uniform, but our Federal
Government is one of enumerated powers. . . . . . . The control
by Congress over interstate commerce cannot authorize the
exercise of authority not entrusted to it by the Constitution. . . .
The maintenance of the authority of the states over matters
purely local is as essential to the preservation of our institutions
as is the conservation of the supremacy of the federal power in
all matters entrusted to the Nation by the Federal Constitution.
For these reasons we hold that this law exceeds the
constitutional authority of Congress.
Excerpts from the Dissenting Opinion in Hammer v. Dagenhart
(1918) by Justice Holmes

The single question in this case is whether Congress has power
to prohibit the shipment in interstate or foreign commerce of
any product of a cotton mill situated in the United States in
which, within thirty days before the removal of the product,
children under fourteen have been employed or children
between fourteen and sixteen have been employed more than
eight hours in a day, or more than six days in any week, or
between seven in the evening and six in the morning. The
objection urged against the power is that the States have
exclusive control over their methods of production, and that
Congress cannot meddle with them, and, taking the proposition
in the sense of direct intermeddling, I agree to it, and suppose
that no one denies it. But if an act is within the powers
specifically conferred upon Congress, it seems to me that it is
not made any less constitutional because of the indirect effects
that it may have, however obvious it may be that it will have
those effects, and that we are not at liberty upon such grounds
to hold it void.
The first step in my argument is to make plain what no one is
likely to dispute -- that the statute in question is within the
power expressly given to Congress if considered only as to its
immediate effects, and that, if invalid, it is so only upon some
collateral ground. The statute confines itself to prohibiting the
carriage of certain goods in interstate or foreign commerce.
Congress is given power to regulate such commerce in
unqualified terms. It would not be argued today that the power
to regulate does not include the power to prohibit. Regulation
means the prohibition of something, and when interstate[p278]
commerce is the matter to be regulated, I cannot doubt that the
regulation may prohibit any part of such commerce that
Congress sees fit to forbid. At all events, it is established by the
Lottery Case and others that have followed it that a law is not
beyond the regulative power of Congress merely because it
prohibits certain transportation out and out. So I repeat that
this statute, in its immediate operation, is clearly within the

Congress' constitutional power.
The notion that prohibition is any less prohibition when applied
to things now thought evil I do not understand. But if there is
any matter upon which civilized countries have agreed -- far
more unanimously than they have with regard to intoxicants and
some other matters over which this country is now emotionally
aroused -- it is the evil of premature and excessive child labor. I
should have thought that, if we were to introduce our own moral
conceptions where in my opinion they do not belong, this was
preeminently a case for upholding the exercise of all its powers
by the United States.
But I had thought that the propriety of the exercise of a power
admitted to exist in some cases was for the consideration of
Congress alone, and that this Court always had disavowed the
right to intrude its judgment upon questions of policy or morals.
It is not for this Court to pronounce when prohibition is
necessary to regulation -- if it ever may be necessary -- to say
that it is permissible as against strong drink, but not as against
the product of ruined lives.
The act does not meddle with anything belonging to the States.
They may regulate their internal affairs and their domestic
commerce as they like. But when they seek to send their
products across the state line, they are no longer within their
rights. If there were no Constitution and no Congress, their
power to cross the line would depend upon their neighbors.
Under the Constitution, such commerce belongs not to the
States, but to Congress to regulate. It may carry out its views of
public policy whatever indirect effect they may have upon the
activities of the States. Instead of being encountered by a
prohibitive tariff at her boundaries, the State encounters the
public policy of the United States, which it is for Congress to
express. The public policy of the United States is shaped with a
view to the benefit of the nation as a whole. If, as has been the
case within the memory of men still living, a State should take a
different view of the propriety of sustaining a lottery from that
which generally prevails, I cannot believe that the fact would

require a different decision from that reached in Champion v.
Ames. Yet, in that case, it would be said with quite as much
force as in this that Congress was attempting to intermeddle
with the State's domestic affairs. The national welfare, as
understood by Congress, may require a different attitude within
its sphere from that of some self-seeking State. It seems to me
entirely constitutional for Congress to enforce its understanding
by all the means at its command.
Excerpts from the Majority Opinion in NLRB v. Jones
and Laughlin Steel Corp. (1937) by Justice Hughes
In a proceeding under the National Labor Relations Act of 1935,
the National Labor Relations Board found that the
respondent, Jones & Laughlin Steel Corporation, had violated
the Act by engaging in unfair labor practices affecting
commerce. The proceeding was instituted by the Beaver Valley
Lodge No. 200, affiliated with the Amalgamated
Association of Iron, Steel and Tin Workers of America, a labor
organization. The unfair labor practices charged were
that the corporation was discriminating against members of the
union with regard to hire and tenure of employment,
and was coercing and intimidating its employees in order to
interfere with their self-organization. The discriminatory
and coercive action alleged was the discharge of certain
employees.
Contesting the ruling of the Board, the respondent argues (1)
that the Act is in reality a regulation of labor relations,
and not of interstate commerce; (2) that the Act can have no
application to the respondent's relations with its
production employees, because they are not subject to

regulation by the federal government, and (3) that the
provisions
of the Act violate § 2 of Article III and the Fifth and Seventh
Amendments of the Constitution of the United States.
Practically all the factual evidence in the case, except that
which dealt with the nature of respondent's business,
concerned its relations with the employees in the Aliquippa
plant whose discharge was the subject of the complaint.
These employees were active leaders in the labor union. Several
were officers, and others were leaders of particular
groups. Two of the employees were motor inspectors; one was a
tractor driver; three were crane operators; one was a
washer in the coke plant, and three were laborers. Three other
employees were mentioned in the complaint, but it was
withdrawn as to one of them and no evidence was heard on the
action taken with respect to the other two.
We think it clear that the National Labor Relations Act may be
construed so as to operate within the sphere of
constitutional authority. The jurisdiction conferred upon the
Board, and invoked in this instance, is found in § 10(a),
which provides:
SEC. 10(a). The Board is empowered, as hereinafter provided,
to prevent any person from engaging in any unfair
labor practice (listed in section 8) affecting commerce.
The critical words of this provision, prescribing the limits of
the Board's authority in dealing with the labor practices,
are "affecting commerce." The Act specifically defines the
"commerce" to which it refers (§ 2(6)):
The term "commerce" means trade, traffic, commerce,
transportation, or communication among the several
States, or between the District of Columbia or any Territory of

the United States and any State or other Territory,
or between any foreign country and any State, Territory, or the
District of Columbia, or within the District of
Columbia or any Territory, or between points in the same State
but through any other State or any Territory or the
District of Columbia or any foreign country.
There can be no question that the commerce thus contemplated
by the Act (aside from that within a Territory or the
District of Columbia) is interstate and foreign commerce in the
constitutional sense. The Act also defines the term
"affecting commerce" (§ 2(7)):
The term "affecting commerce" means in commerce, or
burdening or obstructing commerce or the free flow of
commerce, or having led or tending to lead to a labor dispute
burdening or obstructing commerce or the free flow
of commerce.
This definition is one of exclusion as well as inclusion. The
grant of authority to the Board does not purport to extend
to the relationship between all industrial employees and
employers. Its terms do not impose collective bargaining upon
all industry regardless of effects upon interstate or foreign
commerce. It purports to reach only what may be deemed to
burden or obstruct that commerce, and, thus qualified, it must
be construed as contemplating the exercise of control
within constitutional bounds. It is a familiar principle that acts
which directly burden or obstruct interstate or foreign
commerce, or its free flow, are within the reach of the
congressional power. Acts having that effect are not[p32]
rendered immune because they grow out of labor disputes.
Sec. 7. Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection.
Thus, in its present application, the statute goes no further than
to safeguard the right of employees to self-organization
and to select representatives of their own choosing for
collective bargaining or other mutual protection without
restraint or coercion by their employer.
That is a fundamental right. Employees have as clear a right to
organize and select their representatives for lawful
purposes as the respondent has to organize its business and
select its own officers and agents. Discrimination and
coercion to prevent the free exercise of the right of employees
to self-organization and representation is a proper
subject for condemnation by competent legislative authority.
Long ago we stated the reason for labor organizations.
We said that they were organized out of the necessities of the
situation; that a single employee was helpless in dealing
with an employer; that he was dependent ordinarily on his daily
wage for the maintenance of himself and family; that,
if the employer refused to pay him the wages that he thought
fair, he was nevertheless unable to leave the employ and
resist arbitrary and unfair treatment; that union was essential to
give laborers opportunity to deal on an equality with
their employer. We reiterated these views when we had under
consideration the Railway Labor Act of 1926. Fully
recognizing the legality of collective action on the part of
employees inorder to safeguard their proper interests, we
said that Congress was not required to ignore this right, but
could safeguard it. Congress could seek to make
appropriate collective action of employees an instrument of
peace, rather than of strife. We said that such collective
action would be a mockery if representation were made futile by

interference with freedom of choice. Hence, the
prohibition by Congress of interference with the selection of
representatives for the purpose of negotiation and
conference between employers and employees, "instead of being
an invasion of the constitutional right of either, was
based on the recognition of the rights of both."
We do not find it necessary to determine whether these features
of defendant's business dispose of the asserted analogy
to the "stream of commerce" cases. The instances in which that
metaphor has been used are but particular, and not
exclusive, illustrations of the protective power which the
Government invokes in support of the present Act. The
congressional authority to protect interstate commerce from
burdens and obstructions is not limited to transactions
which can be deemed to be an essential part of a "flow" of
interstate or foreign commerce. Burdens and obstructions
may be due to injurious action springing from other sources.
The fundamental principle is that the power to regulate
commerce is the power to enact "all appropriate legislation" for
"its protection and advancement"; to adopt measures
"to promote its growth and insure its safety"; "to foster, protect,
control and restrain."
Experience has abundantly demonstrated that the recognition of
the right of employees to self-organization and to have
representatives of their own choosing for the purpose of
collective bargaining is often an essential condition of
industrial peace. Refusal to confer and negotiate has been one
of the most prolific causes of strife. This is such an
outstanding fact in the history of labor disturbances that it is a
proper subject of judicial notice, and requires no citation
of instances.

The Act does not interfere with the normal exercise of the right
of the employer to select its employees or to discharge
them. The employer may not, under cover of that right,
intimidate or coerce its employees with respect to their
self-organization and representation, and, on the other hand, the
Board is not entitled to make its authority a pretext for
interference with the right of discharge when that right is
exercised for other reasons than such intimidation and
coercion. The true purpose is the subject of investigation with
full opportunity to show the facts. It would seem that,
when employers freely recognize the right of their employees to
their own organizations and their unrestricted right of
representation, there will be much less occasion for controversy
in respect to the free and appropriate exercise of the
right of selection and discharge.
Excerpts from the Majority Opinion in U.S. v. Darby
(1941) by Justice Stone
The Fair Labor Standards Act set up a comprehensive
legislative scheme for preventing the shipment in interstate
commerce of certain products and commodities produced in the
United States under labor conditions as respects wages
and hours which fail to conform to standards set up by the Act.
Its purpose, as we judicially know from the declaration
of policy in § 2(a) of the Act, is to exclude from interstate
commerce goods produced for the commerce and to prevent
their production for interstate commerce under conditions
detrimental to the maintenance of the minimum standards of
living necessary for health and general wellbeing, and to

prevent the use of interstate commerce as the means of
competition in the distribution of goods so produced, and as the
means of spreading and perpetuating such substandard
labor conditions among the workers of the several states. The
Act also sets up an administrative procedure whereby
those standards may from time to time be modified generally as
to industries subject to the Act or within an industry in
accordance with specified standards, by an administrator acting
in collaboration with "Industry Committees" appointed
by him.
The indictment charges that appellee is engaged, in the State of
Georgia, in the business of acquiring raw materials,
which he manufactures into finished lumber with the intent,
when manufactured, to ship it in interstate commerce to
customers outside the state, and that he does, in fact, so ship a
large part of the lumber so produced. There are
numerous counts charging appellee with the shipment in
interstate commerce from Georgia to points outside the state
of lumber in the production of which, for interstate commerce,
appellee has employed workmen at less than the
prescribed minimum wage or more than the prescribed
maximum hours without payment to them of any wage for
overtime. Other counts charge the employment by appellee of
workmen in the production of lumber for interstate
commerce at wages at less than 25 cents an hour or for more
than the maximum hours per week without payment to
them of the prescribed overtime wage. Still another count
charges appellee with failure to keep records showing the
hours worked each day a week by each of his employees as
required by § 11(c) and the regulation of the administrator,
Title 29, Ch. 5, Code of Federal Regulations, Part 516, and also
that appellee unlawfully failed to keep such records of
employees engaged "in the production and manufacture of
goods, to-wit lumber, for interstate commerce."

The conclusion is inescapable that Hammer v. Dagenhart was a
departure from the principles which have prevailed in
the interpretation of the Commerce Clause both before and since
the decision, and that such vitality, as a precedent, as
it then had, has long since been exhausted. It should be, and
now is, overruled.
As appellee's employees are not alleged to be "engaged in
interstate commerce," the validity of the prohibition turns on
the question whether the employment, under other than the
prescribed labor standards, of employees engaged in the
production of goods for interstate commerce is so related to the
commerce, and so affects it, as to be within the reach
of the power of Congress to regulate it.
To answer this question, we must at the outset determine
whether the particular acts charged in the counts which are
laid under § 15(a)(2) as they were construed below constitute
"production for commerce" within the meaning of the
statute. As the Government seeks to apply the statute in the
indictment, and as the court below construed the phrase
"produced for interstate commerce," it embraces at least the
case where an employer engaged, as is appellee, in the
manufacture and shipment of goods in filling orders of
extrastate customers, manufactures his product with the intent
or expectation that, according to the normal course of his
business, all or some part of it will be selected for shipment
to those customers.
Without attempting to define the precise limits of the phrase, we
think the acts alleged in the indictment are within the
sweep of the statute. The obvious purpose of the Act was not
only to prevent the interstate transportation of the

proscribed product, but to stop the initial step toward
transportation, production with the purpose of so transporting it.
Congress was not unaware that most manufacturing businesses
shipping their product in interstate commerce make it
in their shops without reference to its ultimate destination, and
then, after manufacture, select some of it for shipment
interstate and some intrastate, according to the daily demands of
their business, and that it would be practically
impossible, without disrupting manufacturing businesses, to
restrict the prohibited kind of production to the particular
pieces of lumber, cloth, furniture or the like which later move in
interstate, rather than intrastate, commerce.
But it does not follow that Congress may not, by appropriate
legislation, regulate intrastate activities where they have a
substantial effect on interstate commerce. A recent example is
the National Labor Relations Act for the regulation of
employer and employee relations in industries in which strikes,
induced by unfair labor practices named in the Act,
tend to disturb or obstruct interstate commerce. See National
Labor Relations Board v. Jones & Laughlin Steel Corp.
and cases cited. But, long before the adoption of the National
Labor Relations Act, this Court had many times held that
the power of Congress to regulate interstate commerce extends
to the regulation through legislative action of activities
intrastate which have a substantial effect on the commerce or
the exercise of the Congressional power over it.
In such legislation, Congress has sometimes left it to the courts
to determine whether the intrastate activities have the
prohibited effect on the commerce, as in the Sherman Act. It has
sometimes left it to an administrative board or agency
to determine whether the activities sought to be regulated or
prohibited have such effect, as in the case of the Interstate
Commerce Act and the National Labor Relations Act, or
whether they come within the statutory definition of the

prohibited Act, as in the Federal Trade Commission Act. And
sometimes Congress itself has said that a particular
activity affects the commerce, as it did in the present Act, the
Safety Appliance Act, and the Railway Labor Act. In
passing on the validity of legislation of the class last
mentioned, the only function of courts is to determine whether
the
particular activity regulated or prohibited is within the reach of
the federal power.
Since our decision in West Coast Hotel Co. v. Parrish, 300 U.S.
379, it is no longer open to question that the fixing of
a minimum wage is within the legislative power, and that the
bare fact of its exercise is not a denial of due process
under the Fifth more than under the Fourteenth Amendment.
The Act is sufficiently definite to meet constitutional demands.
One who employs persons, without conforming to the
prescribed wage and hour conditions, to work on goods which
he ships or expects to ship across state lines is warned
that he may be subject to the criminal penalties of the Act. No
more is required.
https://www.law.cornell.edu/supremecourt/text/300/379
Final Exam Prompts
You must answer one prompt from each of the three sections
below. Please write the number
of each prompt clearly in your submission.

Expectations → Your response to each essay should have a clear
thesis. Your thesis should be
supported with specific evidence from the historical contexts
and cases discussed in class,
distributed Supreme Court opinions, course texts, and
supplemental readings (where
appropriate). Your responses will be graded on the quality and
development of your thesis and
evidence. Each response should be roughly five paragraphs in
length. It is my expectation that
you will rely on course material (assigned texts, case excerpts,
and class lectures/discussions).
To that end, I would recommend against citing outside
information.
You MUST answer the following prompt from Section 1:
1. Evaluate the importance of HISTORICAL CONTEXT in ONE
of the following cases:
● Korematsu v. United States (1944)
● Dennis v. United States (1951)
● Brown v. Board of Education (1954)
● Yates v. United States (1957)
● Boumediene v. Bush (2008)
You MUST answer ONE of the following from Section 2:
2. To what extent did the Supreme Court’s interpretation of the
commerce clause protect
American workers from the abuses by American industry?
(Incorporate both the Gilded
Age and the New Deal in your response. Reference at least
THREE cases in your

response.)
3. Should the New Deal be considered a legal success?
(Reference at least THREE cases
in your response.)
You MUST answer ONE of the following from Section 3:
4. Compare the Constitutionality of the use of military
commissions to try detainees in World
War II and the Global War on Terror.
5. Evaluate the validity of the following statement in the
context of the Cold War. Confine
your response to the historical period from 1945 to 1991.
(Reference at least THREE
cases in your response.)
“In times of panic, we fear freedom.”
Due via Blackboard.

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