Introduction & National Bank Argument
What is Constitutional Law?
Highest level of law & governs the government
Interpretation of the Constitution
Who- checks & balances
How- to what extent
What- Gov. organization
Constitutional Law is a Public Law Course
Highest law of the land
All sections of Constitution apply to Government/People (besides slavery)
Organization of Government
Federalism- Federal & States relationship (Erie)
Separation of Power- Branches of Government
Roadmap to the Constitution
· Article 1, Section 1: Legislative powers vested in House & Senate
· Article 2, Section 1: Executive Powers vested in President
· Article 3, Section 1: Judicial power vested in Supreme Court and inferior courts established by Congress; In 1789, only 1 federal court (Supreme) existed
· Article 4: Full Faith & Credit
· Article 5: Amending the Constitution
· Article 6: Paying debts; Fed law is supreme
· Article 7: States can ratify the Constitution
Constitutional Interpretation
How do we decide what the law is?
looking to Written Law here as opposed to C/L (Judge made)
1790: Hamilton, Madison, Randolph & Jefferson weighing in the First Bank of the U.S.
Issue: Power of the Constitution to create a Bank?
Only Madison had a vote; Washington asked others for opinion
Pro: Hamilton
Hamilton (Sec Treasury)- Hamilton interpreted the “necessary” (Art I, Sec 8-18) clause to allow a national bank as a means to realization of expressly conferred powers. (Regulation of the value of money)
Lower need standard than “absolutely” necessary
· Con: Madison, Randolph & Jefferson
Madison (Congress)- was proposed & rejected at Convention already
Madison thought there was a systematic ambiguity of means and ends and that something could be both a means and an end.
Madison’s Slippery Slope argument: Allowing incorporation of a bank will allow all sorts of intrusions/give congress carte blanche to do anything
Randolph (Atty General)- unconstitutional; slippery slope; defining “and proper”
Jefferson (Sec State)-
McCulloch v. Maryland – State of Maryland imposed a state tax on the federal bank. S. Ct. held federal bank was constitutional and a tax on it was unconstitutional because the states have no power to burden the operations of constitutional law enacted by Congress.
Justice Marshall:
Constitution is not like a Code or Statute, rather an establishment (foundation) of power
Accept enumerated powers of Constitution along with Necessary & Proper Clause
Broad interpretation of constitutional power
Enumerated powers imply means of execution
Which means are implied? i.e. How broad is the power?
Enforcement measures can be drawn from necessary/proper clause: post offices, roads, punishment of counterfeiters, piracy
What’s Marshall’s view in McCulloch of the Constitutional limits on Congress’ leg. powers?
(Paragraph 38) Purpose must have a legitimate end; not plainly prohibited; w/in scope of Constitution; MEANS à GOAL
(P 12) Gov. is one of enumerated powers; exercise only power assigned to it
Enumerated powers: power to tax, coin money, etc. à power to control finance
Necessary & Proper means to carry out the legitimate goal.
Limit of “calculated to affect”- need to only have a relationship (below legitimate limitation)
So how related? Up to Congress
Law not otherwise prohibited
Law not a pretext to what you want to achieve
What methods or techniques of Con. interpretation does Marshall use in the McCulloch opinion to justify his conclusion that Congress’ power has power to charter a national bank? p.33
Precedent- Prior leg. & judicial decisions
Structure of gov. under the Constitution
Textual argument- examines “necessary” and if meant absolutely, should have said so.
Intent of Framers
Practical consequences of necessity
Originalist v. NonOriginalist
Originalist-
Pros: Look to text itself; if unclear, look to Framers’ intent
Limit judicial review as much as possible
Cons: Who are the Framers?
We ascertain intent of others?
Constitution only a static document incapable of dealing w/contemporary issues
NonOriginalist-
Pros: Use all potential resources to interpret Constitution
“Living Constitution” to evolve with needs of succeeding generations
Cons: Conclusions determined more distant from the Constitution
McCulloch issue #2: State power to tax National Bank is Constitutional? No
Federal Supremacy Clause issue: State could not have power to tax the Bank à creates power to destroy à against an institution created by the Fed. gov. would necessarily affirm State authority and negate Fed’s ability to preserve it. = directly contrary to the Constitution’s Supremacy Clause.
Marbury v. Madison – One day before leaving office John Adams named 42 justices of the peace for DC. They were confirmed by the senate and their commissions were signed and sealed by the then secretary of state John Marshall. In the final moments of the Adams administration some of the commissions including that of Marbury were not delivered. When Jefferson assumed office, he instructed his secretary of state, James Madison, to disregard the appointments and withhold the undelivered commissions.
Issue 1-Does Marbury have a right to the commission?
o Marbury had a right to the commission because all of the appropriate procedures were followed. When a commission has been signed by the president, the appointment is made, and that the commission is complete when the seal of the United States is attached to it.
Issue 2-Do the Laws Afford Marbury a remedy?
o No person is above the law. The courts could afford relief against the president himself, when he owes a specific remedy to a specific person. The court cannot compel the president, when the matter is purely political.
Iss
s of a nature that requires uniform national regulation or diverse local regulation.
The court said some rules 1) require a uniform national rule, and others 2) require diversity which can be met through local regulation.
2 ways Dormant Commerce Clause can arise:
Congress has not specifically acted
Congress has acted, but there is no conflict between congressional act and state act.
Rejects the notion that congress has exclusive power over congress and the suggestion that the states are completely free to regulate commerce absent a federal law.
Cooley Doctrine-the state is deprived of all regulatory power as to subjects which are in the nature national, or admit only of one uniform system or plan of regulation.
Dormant commerce clause analysis:
1) Is it an evenhanded regulation, or discriminatory?
2) If the burden on interstate commerce outweighs the 10th amendment then the 10th amendment loses.
Scope of Federal (Congress) Power & ICC
Marshall’s view in Gibbons ICC restricts States’ powers
States cannot regulate at all except for police powers
Dormant Commerce Clause
Federal License (Gibbons) & NY Monopoly (Ogda)- inconsistent!
Express Preemption Clause- Congress uses Federal law to knock out all State laws in conflict
Implied Preemption- State statute obstructed or interfered with Federal law according to ct.
used in modern day conflict examination e.g. Medicare State card use
Marshall Court ends à Taney Court begins
Affirmatively protected slavery
1787: could abolish slavery in the Constitution, be silent or protect it.
Art. 1, Sect. 2, Cl. 3- method for counting people for House of Reps. Slave = 3/5 of a person
Art. 1, Sect. 9- compromised to 20 yrs. regulate slave trade until 1808 when it would be abolished (even though many states had already done so).
Art. 4, Sect. 2, Cl. 3- fugitive clause of slaves
Polarization- hard attitudes & economic pressures
Moral & religious revival in early 1800s
Expansion of the country’s territory- if slaves were people = more votes
Federalism- structure of Federal & State
Power to regulate slavery to States or Federal
Miss. statute: prohibited new slaves into State (Groves)- matter left to States=States hold specific interests & better understanding on where they stand.
Get enough anti-slavery in Congress à statute to abolish slavery
Court struggles with this issue in Groves and Prigg…
