Part One: Introduction (Chapters 1-4)
Chapter 1: The Bank of the US: A Case Study
II. The First Bank of the US
Class1: Mon22Aug: The Bank of the US; an Introductory Case Study to ConLaw
1) McCulloch Preview:
a) 1st Bank: Madison says bill est. bank is UC. (gov’t of enumerated powers)
i) Stat Interp: PMR; Attn to Consequences; Orig. Intent of C (Drafters, ratifiers, states); Orig (popular) mng
ii) Other pop Theories: Evol Thry: CL method; prag. method (Posner: do for pres/future without regard to past)
A. Madison’s View (Speech to House of Reps (1791))
b) Madison in more detail: addressing the argument that chartering the bank is C
i) Art I § 8 (and §9) “to make all laws which shall be necessary and proper . . .” if bank n&p no enum. powers
ii) Textual Reason: measures n&p to gov’t (abstract) aren’t proper b/c concepts of gov’t differ, what’s n&p for our gov’t has already been created by the framers. taxes=bank isn’t same necessity as war=army
(1) Power to tax and fed bank not closely enough linked for it to be C.
c) Opposition to Madison:
i) Gehry: lenient interp. of leg. will; Fedist #44 (Madison ‘91–changed mind): C should respond to new sits.
(1) But Mad’s speech more weight (in Cong, oath to support C). Federalist was just persuasive writing.
(2) and saying bill is UC, here’s why. Different than saying “here’s what bill allows”
IV. Judicial Examination of Congress’ Authority to Create the Bank (McCulloch 1st Q)
Class2: Wed24Aug: McCulloch continued
2) McCulloch: Main things: i) loose n&p cl interp. ii) fedism issue. I1: Can Cong inc. bank, though not explicit in C?
a) Excerpts as examples of each method of constitutional interpretation (as important as holding).
i) Textual Method: Plain Meaning Rule: ”To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”
ii) Historical Method: (Orig intent of C – drafters, ratifiers, states; orig (popular) meaning?)
iii) Evolutionary Method: (CL Method; Pragmatic Method?)
b) Marshall’s Interp: n&p cl loosely (not strictly) construed. Ord meaning of necessary (in n&p): “efficacious.” (possessing effective qualities) R: When law isn’t a “bold and daring usurp,” but instead a “scrup adher to wht erbdy accepts as C’l duty,” less strict interp nec in analyzing
i) 1st bank carefully considered (1812 financing probs, embarrassment, what’s necessary changes over time)
ii) And ‘great principles of liberty aren’t concerned.’ If so, more concerned isn’t in line with C. Since bank charter, less important whether is C’l (if individual rts concerned, may be more strictly construed).
c) “A C we are expounding” Fund princ of C. Ct draws a sharp law/politics line. Today’s strict constructionists don’t like can change C meaning.
i) Precedent (Engl): General understanding of what C is; is “what holds us together.” Is a gen sense of cmty values, not specific interpretation of those values. At least, interpret generally; “like a legal code.”
ii) JM: To hold owise would be a political decision. Mad/Jeff argue for an activist Ct. PolySci Standpoint: “Qs of degree are value judgments, are left to the elected branches. Can’t hide from Ct.
iii) Words Pg 47 para8: Experience. Reason. Accommodation to circumstances. This is what a C allows.
d) Hamilton’s test of C’y – Means/Ends test: If the means are in exercise of a C auth power, the means are n&p by Art I §8 (and C’l). Don’t want SC to inquire about degree of necessity, is not SC’s job (discuss in another place (Congress)). Is the demarcation between law and politics.
i) C only sets outer bounds of Cong action (sets procedure). JM: “Let the end be legitimate, let it be within the scope of the C, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the C, are constitutional.”
ii) If the Court concludes the bank is appropriate, “the degree of its necessity is a political determination.”
iii) The degree (how n& p) test is a political determination.
V. The States’ Power to Tax the Bank of the US (McCulloch 2nd Q)
1) I: can MD can tax the National bank?
a) Deductive logic (incontrovertible): 2 prem: i) Answer to Q 1 (Bank C) ii) Suprem Cl: Fed trumps state. 3 coroll:
i) P to create => P to preserve; P to destroy incompat. w/ P to preserve; Given conflict, supreme auth controls
b) Have disagreed with q 1 (stricter construction) but this incontrovertible? Taxing might not be destroying; JM offers “Political Safeguards” (vote out as only remedy for tax abuse) argument:
2) Other Points:
a) Federalism re: power to tax. Sovereign: all powers of governing body. Sovereign was always one, divided a hard concept, so conflict. MD: taxing is sovereign power, MD sovereign, how can limit? JM: popular sovereignty
i) Fedism was a fund problem. Marshall: Ct only polices outer bounds of pol action, not substant law. Seen in both Qs (even in state law). So states don’t have power to tax or destroy C exercises of national power.
b) Ct notes political dec. best made by localities.
c) Ct won’t look at wisdom of tax rate (again, law/politics distinction), just deciding as matter of C bounds, whether MD has power to tax. “If MD had power to tax,” Ct couldn’t examine degree of taxation b/c would be a Pol Q.
d) JM: States can still tax “resources orig possessed”: cashier, prop, int on bank holdings. If no like, vote/leave
i) Allowable/not allowable taxation distinction: if citizen has the choice to pay tax, is C for the state to tax them (tax unconnected to the operations of the Fed Gov’t
e) Prez role in C intrp (Marbury). Non-case excrpts (Jack Veto, Dlngr Memo (don’t Enf UC laws)) = ex of C assertion stand for
3) Case Notes after McCulloch:
a) Panhandle Oil (1928): MI sale taxed Panhandle (gas to CoastG/VetA) Hldg: Ct: needn’t pay under McCulloch (impedes Fed) Holmes Dissent: Nonsense. “But for dicta of McC, no question UC.” By 1928, Know no simple way to dist. leg/Pol q, so should be in jud power to determine degree of taxation.
i) Rev’d in ’41. Major change: JM thought only setting C bounds, that he decides if they have power, if so, unequivocal. Holmes says can tax within reas limits. Ex: CG can’t function without clothes and food, but still tax, so tax ok (is a gen applcbl law). So Q of wthr tax gov’t one of reasonableness and degree
b) Johnson v. MD: Mailman needn’t have state DL. Why can MS tax fed; but MD can’t impose gen DL?
i) Hypo: Fed gov’t could tax military members, but won’t b/c states wouldn’t want bases.
(1) Fed Gov’t hasn’t spoken on the I, so (Holmes presumption) tax is OK.
ii) Holmes: Pg 74: requires quals in addition to what the gov’t has already deemed sufficient. More direct interference than tax on a sale to the fed gov’t, so illegitimate. Difference: Raising revenue is legitimate, interfering w/ ops of fed gov’t isn’t. Difference is direct vs. indirect effect on operation of the gov’t.
(1) Holmes’s Johnson distinction: DL law UC b/c fed can’t do mission at inception vs. traffic laws, where can go about business as long as following the law.
iii) Re: traffic laws: OK to impose on postmen b/c local safety. Also: DLs rare in 1929, easy to see how directed at fed, instead of general like tax.
iv) Rev raising and local safety Is are legitimate concerns of the state (seem to tax fed gov operation; OK), and licensing req’t, is a hiring decision (taxing members of the fed gov; not OK).
4) Sample Q 1: The State of Ames is home to a large number of federal mil bases. Responding to local govt’s complaints about the strain that playing host to soldiers and their families puts on local resources, the state authorizes a special prop tax on military bases in the state. The revenue will be distributed, on a per capita basis, to localities where the bases are located. Would such a property tax be C? a) No under the rule established in McCulloch b) No Unless Cong authorized such a tax c) Yes if the state can demonstrate a serious need. d) A and B.
Answer: McCulloch: can’t discrim (is special, not general prop tax) against gov’t in destroying it; but electable positions should be allowed to make value judgments in these sits, so if authorize, is acceptable.
(1) A: Correct b/c power to tax=destroy; states C’y prohibited from destroying mil bases.
(2) B: Correct b/c §8 powers plenary; Cong decides when state tax appropriate. Cong makes “degree” jgmt.
(3) C: wrong, states delegate raising army power to fed. If “serious need,” Cong reps make the case.
VI. The Demise of the Second Bank
5) Vetoes and Signing Statements
a) Jackson Veto: “Mere precedent is a dangerous source of auth, and should not be regarded as deciding questions of C’l power except where the acquiescence of the people and the States can be considered as well settled”
i) Jackson rests view of UC on JM: “McCulloch said Pol Brnchs decide the degree of necessity, I say it’s not.”
b) Dellinger statement: No matter if previous prez signed bill; Prez can say UC if encroachment on power, b/c no one else has standing to assert a C viol.
Chapter 2: The Marshall Court and the Early Republic
III. The Cases of 1803 {Class3: Fri26Aug: Marbury v. Madison, Judicial Review & Federal Jurisdiction}
A. Stuart v. Laird and the Elimination of the Intermediate Appellate Judiciary
1) 11th Amdmt: Removes states as parties from fed j. Caused by Chisholm: SC merchant won agaisnt GA (D: svrgn), in FedCt under Art III div j. All give non-textual meaning: all suits in fed prohib unless Cong removes (14th Am)
2) Judicial Review
a) Stuart v. Laird: More important (bolder capitulation) than Marbury?
i) To Q: Hasn’t all been about jud rvw so far; McC is about jud rvw, but little is said about it. JM assumes (no explain, b/c suprmcy cl.) SC has power to invalidate MD law. But what auth. does ct have to inval fed law?
(1) Main thing in McC: i) loose interp of n&p clause. ii) issue of federalism just mentioned
, but are situations where might be allowed.
d) Political Safeguards argument: Recall McCulloch: didn’t look at tax b/c value judgment – left to vote, not C.
i) Here, SC willing to interfere w/legis impairing Ks, won’t leave to vote, b/c in McC, all are equally affected by tax, only check is all, can’t say people are enemy of people.
(1) Here, all citizens aren’t equally affected, only those with vested rts. Enemy here is the majority w/o p. JM: “the violent acts which might grow out of the flings of the momnt,” the “suddn and strng passins to which men are exposed” borrows from Mad. Fed 10. “Uneq dist of p is chief source of pop passion.”
(2) paraphrasing JM: when passions get the best of people, is an ex of a sit where they can’t be trusted
e) General Principles (JM’s alt view, if don’t buy the KCl interp): Quotes: “restrained by general principles which are common to our free institutions,” and “the nature of society and of gov’t”
i) When interfere with vested rights, are messing with something that has a moral character to it.
ii) GPs evtlly find place in C (DPC) already DPC in 5th (restrains fed, but are cncnd about restraining states)
(1) 1896: DPC to states (can’t deprive w/o DP of law). Would suggest we read i) vested rts for property, and ii) GenPrincpls for DP of law; Ct will eventually fold all this sort of anal into DP clause.
(a) When ct finds subst DP, finds individ rts, initially freedom of K, then makes judgments
2. The Judicial Protection of Vested Rights (Calder)
1) Nat law aspect of Fletcher/Calder
a) JM in Fletch: Invalidated GA legis repeal of land grant based on i) Alternate interp of KCl or (if don’t believe) ii) general principles common to our free institutions (14th DPC); liberty and property = vested property rts lang
b) Calder (1798: KCl): Chase vs. Iredell: Chase: natural principles of judgment (nat law, not just C). Must interpret C broadly with overarching GPs. Can provide 14th Amdmt basis for. Result: CN legis didn’t deprive, b/c no rt vested
i) CN legis set aside probate ct’s disapproval of will (making respondents beneficiaries). But: legis powers not unltd, even if C doesn’t limit. Legis can’t deprive of property rt though C doesn’t expressly prohibit.
ii) Probs after case: More modern critique: questions whether natural justice exists
c) b4 Fletcher: ex post facto/no bill of attainder/KCl – helps realize idea behind: Is all about settled expectations.
d) Even J. Johnson gives up (in 1830) on natural law for positive law. Consider pol, not moral, oblig.
i) More instinctual parts of law need to be recog’d: “liberty of K” “rights to abortion” rehash natural justice
2) Bar Q 2: A statute of the state of Tuscarora made it a misdemeanor to construct any building of more than five stories without an automatic fire sprinkler system. A local construction company built a ten-story federal office building in Tuscarora. It constructed the building according to the precise specifications of a federal contract authorized by federal statutes. Because the building was built without the automatic fire sprinkler system required by state law, Tuscarora prosecutes the private contractor. Which of the following is the company’s strongest defense to that prosecution?
a) Answer Choices:
i) The state sprinkler requirement denies the company property or liberty without due process (Reworded in lang just covered: Does the stat deny the co similar vested rts w/o DP in vltn of some gen prncpl of justice?)
ii) The state sprinkler requirement denies the company equal protection of the laws
iii) As applied, the state sprinkler requirement violates the supremacy clause
iv) As applied, the state sprinkler requirement violates the obligations of the contracts clause
b) iii) b/c like McC, fed gov has power to build under Art I § 8; state law clearly interferes with the exercise of fed power (satisfies means/ends test). To avoid state prosecution, Cong plenary powers must trump state exercise of police powers.
i) Not A/D b/c K must predate the statute; else no vested right.
