a. Idea of there being limits on government
b. These limits are defined in and by the Constitution
i. Congress’ powers are enumerated A
1. Article 1, sec. 8 – Congress does not have the power to do things other than those enumerated, unless the courts say they can
c. Articles of Confederation – designed to address issues that faced the individual states, but there were problems:
i. No power to tax or regulate commerce.
ii. No way to enforce collecting taxes from the states.
iii. No judicial or executive branch; only legislature.
iv. States usurping federal power.
a. Idea that the states have rights and retain their own power, even if they are not treated as separate countries
b. Federalist sentiment – supported the creation of a stronger national govt. under the proposed Constitution and relied on the willingness of citizens to subordinate their private interests to the general good.
c. Anti-federalist sentiment – wanted to retain the Articles of Confederation and opposed the creation of a stronger national govt. under the proposed Constitution because it removed the people from the political process, emphasized commerce, and created a powerful and distant national govt.
d. Federalist No. 10 – control of factions
i. The causes of faction cannot be removed and that relief is only to be sought in the means of controlling the effects
ii. A republic refines and enlarges the public views by passing them through the medium of a chosen body of citizens (whose wisdom may best discern the true interest of their country).
e. Federalist No. 51 – establishes checks and balances
i. Each department should have a will of its own, and consequently should be constituted that the members of each should have as little agency as possible with the apportionment of the members of the others.
ii. Judiciary should be isolated from political pressures.
III. Judicial review – Article III, § 2
a. Marbury v. Madison (p.29) – President Adams appointed Marbury justice of the peace. Senate confirmed appointment. Adams was defeated by Jefferson for president. Jefferson did not deliver commissions of justices. Marbury wanted Madison (Jefferson’s Secretary of State) to deliver them.
i. The court considered and decided three questions: (1) Does Marbury have a right to the commission he demands? Yes. (2) If he has a right, and that right has been violated, do the laws afford him a remedy? Yes. (3) If they do afford his a remedy, is it a mandamus issuing from this court?
ii. Article III of the Constitution lays out the Supreme Court’s original and appellate jurisdiction – Article III, § 2: the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.
iii. “To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate juri
yland (p.61) – MD created a law that imposed a large tax on the First Bank of the U.S. McCulloch, a branch cashier, refused to pay and MD sued.
i. Congress has the authority to establish a federal bank because it is given the power to tax and a bank is a way to facilitate the use of that power.
ii. Congress shall have power “to make all laws which shall be necessary and proper to carry into execution” the powers of the government – the sense of the words “necessary and proper” intend to ensure beneficial execution, even if the limits of the powers are broadened
iii. Maryland cannot tax a federal bank because the federal govt. is run by the people, not the states. If one state could tax the federal govt. then that state would be taxing the people in other states over whom they have no jurisdiction.
1. The power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create.
2. Supremacy clause: The constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.
VI. Political Control over the Supreme Court
The Court’s authority is subject to external political control via: constitutional amendment, impeachment, and informal mechanisms and self-imposed limits.