Constitutional Law, Spring 2012, Matt Steilin
Introduction and Background
-Course to focus on powers (ability of gov’t to do something), not rights
-Con Law = the body of law based on the Constitution (note that many issues, such as war powers, do not come before the courts). It is also a form of political and social history (context is key), and not about judicial review or constitutional interpretation (originalism, textualism, living constitutionalism)
3 PRINCIPLES OF AMERICAN CONSTITUTIONALISM (Sam Adams)
-Written (Unlike the British ‘constitution’)
-Fundamental (law that limits the powers of gov’t-sets out and defines limits). Rejection of legal positivism sovereign makes law) for sovereign under law. Proper authority is in conformance w/the Constitution.
-Popular (Rests on sovereignty of the people to enforce, vs mixed gov’t theory)
*Rights = express limitations (a Constitution need not have a Bill of Rights). “Expressio unis”-implies rights not listed are not protected-see the 9th Amendment
PREDECESSORS TO THE CONSTITUTION
A. State Constitutions 1776-1787
a. Nothing (RI, CT)
b. Legislative adoption (SC)
c. Convention (PA, MA, NH) – Popular in authority
i. a & b = no fundamental charter to limit gov’t
B. Articles of Confederation
a. Written? Yes.
b. Fundamental? Yes-power limited (taxation), not arbitrary.
c. Popular? No, rests on states and not people (agreement between states-a compact/treaty between sovereign states for common defense and free trade, represent state governments)
d. Article 4: Free commerce among the states (think Eurozone), full faith/credit
e. Article 6: No state powers of foreign policy or war
f. Article 9: Congressional authority to make foreign policy and war
g. Article 10: Committee of states executes power in absence of congress
h. Article 9 section 2/3: Judicial power
i. Article 13: Continental Congress has no power to coerce states-i.e. no legislative power
i. Recommendation power only, no sanction
ii. Art. 9 section 5-no power to raise revenue on its own
CRISIS OF 1780s
A. Failure of Articles
a. States refused to pay common treasury to support war effort, interfered with national treaty obligations
b. Congress lacked power to regulate interstate or foreign commerce, lacked a power of coercion
c. States voted against national measures that might conflict with local interests (needed unanimity) *Collective action problem-individual self-interest overrides common interest
d. States would not permit Articles to be amended to strengthen Congress-radical reform needed inconsistent with basic structure of the compact
B. Failure of State Legislatures (Point 9 in Madison memo)
a. Multiplicity, mutability and injustice (debtor relief legislation) of state laws
b. Representatives focusing on their own interests, republican despotism (tyranny of the majority)
c. Solution: Broaden the electorate, many interests to keep one majority from coming out on top
Political Theory of the Constitution
Weakness of Congress
Power to legislate and tax, independent executive and judiciary
Defects in republican gov’t
Legislative design, counteract republican despotism, national gov’t less dependent on cooperation than states
3 DESIGN STRATEGIES
1. Authority rests on people, not states, gov’t has power to govern people. Article 7, Article 5, Article 6
2. National electorate large and national legislature small. Large scope of representation.
3. Powers divided-federalism and separation of powers. Federalism a PR strategy, Article II.
The Federalist: Collection of essays in 1788, run in NY papers during ratification debates (frequently cited by SCOTUS).
Federalist 10: Legislative design. Factions are unavoidable (sown in nature of men), necessarily affect legislation (regulation principle task of modern legislation). A large federal gov’t can counter the effects of faction.
Federalist 51: How to prevent feds from being oppressive-self interest unavoidable but arrange large pieces of gov’t to conflict with each other
Introduction to Article I
Section 1: Vesting Clause
“All powers herein” –legislative authority defined and limited. Structure of federalism (Sect. 4, 8, 9/Amend X, 10/Article VI). Reasons: Prevent tyranny (constitutional overlap), democracy advantage, laboratories.
Section 2: House
Section 3: Senate
Each state equal representation (“Great Compromise”)…counter majoritarian, represents state legislatures, envisioned as a calm great debilitating body semi-immune to public opinion. Senates represents interests of states (pre-17th Amendment). A political device of federalism.
Section 4: Election & Meeting
Section 5: Rules of Congress
Section 6: Privileges
Section 7: Enactment
Section 8: Powers
18 enumerated powers. Not a general grant of power (Virginia Plan proposed authority for legislate on general interests, areas where states separately incompetent and national harmony-sometimes used as a guideline for interpreting the enumerated list). Money, Machismo (foreign), Monopoly (certain organs), curing financial failures of the Articles (commerce) and foreign policy/war powers (international securit
bbons v. Ogden (1824): Does Congress have the authority under the commerce clause to regulate interstate steamboat navigation? [Does federal license trump state license?] Steamboat case. Marshall: Commerce clause authorized Congress to grant license. Uses 3-step/prong test:
1. Commerce: Ogden makes originalist argument (buying-and-selling only). Marshall-practice has been ongoing for decades and people have waived their claim against it. Uses dictionary definition (intercourse).
2. “Among the states”: Geographic (Intermingled)-does not stop at state boundaries but enters into interior. No power to hit local commerce, local activity w/trans-border effects and not necessary and proper.
3. Regulation: Power to prescribe the rule by which commerce is to be governed. Plenary-absolute power when enumerated (where authority to act, defines the field, why Congress takes an interest is not a factor). Congress may regulate w/o restriction all “commerce intercourse”:
a. Extending into geographic interior >1 state
b. Affecting > 1 state
c. When necessary to execute a congressional power.
Scope of powers factually dependent-how interconnected are the states? A problem of translation. At this time America was very local, today interconnected-power looks huge.
1890-1936: Major changes in commercial world (Industrial Revolution), transportation, urbanization, immigration, “Progressive Era”, new rounds of legislation
United States v. E.C. Knight (1895): Concerning Sherman Antitrust Act.
1. Commerce ≠ Manufacturing: “Commerce succeeds to manufacture and is not a part of it”. “Negative externality”-Price producing a good that does not show up in the cost (e.g. pollution). Monopoly a classic example of negative externality. Should regulatory power include anything that affects power-justices say no, Sherman Act unconstitutional.
2. Manufacturing indirectly affects commerce-Power to manufacture affects only incidentally and indirectly.
3. State police power is exclusive-Indirect effects would cause federal power to balloon and intrude on police power reserved for the states (compact theory)
Harlan dissent: Congress may remove unlawful obstructions of whatever kind, appealed to popular sovereignty