Charlotte School of Law
Con Law I
Bolin
Fall 2010
CON LAW I
I. Modalities of Constitutional Interpretation
a. Textual
i. “That’s what the constitution says”
b. Original Meaning
i. “That’s what the Constitutional Clause would have been understood to mean at the time of the founding”
c. Original Intent
i. “If we asked the framers what they wanted, they’d tell us this”
1. Related to original meaning, but focuses on what the Framers wanted to do, even if they didn’t embody it in the text of the provision
II. History of the Constitution
a. Articles of the Confederation: predecessor of the Constitution
i. States had complete sovereignty
ii. Failed miserably
b. Background Assumptions of the Constitution
i. “First comes rights, then comes government”
ii. Individuals have “natural rights” (now known as “human rights”)
1. Rights by virtue of being human that are not a grant from any government
c. Locke and Hobbes
i. “State of Nature” What would the world look like with no governing structure at all?
1. Hobbes
a. Without giving some authority to a sovereign entity, there would be chaos. “War of each against all.”
b. No rights apart from government; all rights are derived from government.
c. Everyone has free will, even within the most structured society.
d. Government should exist to keep us safe
e. His view became known as “Positivism”
2. Locke
a. People have rights apart from government.
b. Natural rights pre-exist government; government is formed to protect natural rights.
c. If people’s rights are not being protected by government, we have a right to change it.
d. Government exists to keep us free
ii. Locke’s 3 reasons we need government:
1. Without a government, there is
a. No settled law for resolving disputes
b. No impartial judges
c. No effective enforcement power
d. Why do we have a Constitution?
i. Includes foundational principles that we can go back to.
ii. Broad reading likely allows constitution to survive longer.
e. How do we interpret the Constitution?
i. Scalia: If we are going to decide that the constitution evolves, who gets to decide what it evolves into?
ii. Constitutions were enacted by state conventions. How can we determine what the “intent” of all of the writers of the Constitution was? Also, the Civil War was based on the inability to agree on what the Constitution meant.
iii. Constitution doesn’t implicitly give the power of interpretation to the Supreme Court
1. Says judicial power is vested in Supreme Court, but what is “judicial power?”
iv. Supremacy clause makes the constitution the ultimate law of the United States, but it doesn’t say anywhere who should interpret the constitution.
f. Bill of Rights
i. As originally proposed, the Constitution did not have any amendments (Bill of Rights)
ii. Federalists and Anti-Federalists debated whether the Bill of Rights was necessary.
1. Federalists
a. Federal government only has the powers given in the Constitution.
b. Anything not given in the constitution is reserved for the states
c. Thought Bill of Rights could actually be dangerous
III. The Necessary and Proper Clause
a. Constitutionality of First National Bank
i. First big constitutional issue
ii. Economic theory at the time held that a national bank would ensure prosperity and help the nation grow
iii. Madison:
1. Necessary and Proper Clause must be limited to specified powers
2. Madison argues against the National Bank; states that “convenient” or “useful” is being inserted in place of “necessary.”
3. The more important a power is, the more likely it was omitted intentionally. Does this make sense? Or is the opposite true?
4. Didn’t want anything that would give an unlimited discretion to Congress.
5. Enumerated powers should be limited to means necessary to the end, and incident to the nature of the specified powers
iv. Jefferson:
1. Something has to be absolutely necessary in order to fall under the necessary and proper clause.
2. Necessary means “essential.”
v. Hamilton:
1. Moving force behind the bank proposal
2. Believes Jefferson’s view of necessary is incorrect. Necessary doesn’t mean “must do.” Defers to plain language meaning; “necessary” a synonym for “useful, needful, or conducive to”
3. Thought necessary and proper clause ought to be construed liberally in the advancement of the public good.
4. Believed in implied powers; necessary means it can be done if it’s in the best interest of the nation
b. McCulloch v. Maryland (1819)
i. Facts: After the charter of the First Bank of the United States was allowed to lapse, Congress incorporated the 2nd Bank of the United States. The bank was organized in PA, but operated a branch in Baltimore, without any authorization from MD. The General Assembly of Maryland imposed a tax on all banks operating in MD which were not chartered by MD itself. James McCulloch, head of the Baltimore Branch of the Second Bank of the United States, refused to pay the tax.
ii. Procedural History: The case was appealed to the Maryland Court of Appeals where the state of Maryland argued that “the Constitution is silent on the subject of banks.” It was Maryland’s contention that because the Constitution did not specifically state that the federal government was
atural law over the will of the people as that will was reflected by other, more democratic, branches of the government.
3. If the court relied upon natural law to overturn legislative acts, it would assume powers not granted to it by the Constitution and disparage the democratic process.
VI. Power of Judicial Review
a. Marbury v. Madison (1803)
i. Facts: Just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous “Midnight Judges”, were all located in the Washington and Alexandria. One of them was William Marbury. He had been appointed to the position of justice of the peace in the District of Columbia.
ii. On the following day, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall.
iii. While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams’s term as president expired.
iv. On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration’s Attorney General and acting Secretary of State until the arrival of James Madison, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson’s opinion, the undelivered commissions, not having been delivered on time, were void.
v. Issues:
1. Did Marbury have a right to the commission? (Yes)
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? (Yes)
3. If they do afford him a remedy. Is it a mandamus (order) issuing from this court?
vi. Basic Holding: Courts have the power and the duty to declare void a statute that conflicts with the Constitution. (Established power of judicial review)
vii. Reasoning:
Court agreed that Marbury had a right to the commission under the Judiciary Act of 1801. When a commission has been signed by the president, the appointment is made; and the commission is complete when the seal of the U.S. is
