Professor Steilen – 2016
2/4/16 – The Constitution is…
1. Revolutionary- sovereignty, legitimacy of gov’t arises from people.
Articles of Confederation in 1777
The Articles were similar to a treaty between tiny nation-states, at the same time giving each state the power to thwart congress’ ability to govern.
1. No power to tax, tariff war between states
2. Problems w/ creditors and debtors
3. No army
4. Huge problems out west
5. No foreign policy
6. States didn’t feel obligated to pay, no mechanism to enforce requisition of payment
7. States and Congress were printing money…idiots!
8. Needed unanimous support to amend the articles, Rhode Island never showed up, each state had 1 vote not based on population.
Constitutional Convention – Philadelphia 1787
1. The writers were experienced constitution writers
a. 20 yrs const writing experience at state level.
2. Protecting individuals
a. Article IV- no discrimination during travel between states.
b. No Bill of Attainder or Ex Post Facto laws
3. Conventions were primarily thought to be expressions of the people through organic acts
4. Hamilton and Madison felt the key feature should be the bicameral legislature, Senate based on statehood, House of Representatives based on population for representation-Great Compromise.
5. Ratified by 9 states via delegates at conventions.
6. One question still remained, what exactly is popular sovereignty? If authority rests on the people, are we 1 people or are we 1 people of many different states?
2/9/16 -Map of the Constitution –
1. Separation of powers distinguishes principal parts of government based on particular functions they serve.
2. President retains a legislative vote through the veto power, the legislature can impeach (judicial power).
3. Federalism is identified, government is not given all the power to legislate, some legislative power remains with the states via 10th amendment.
Structure of Constitution-
Preamble- Tells us who authority rests on…We the People, informs us the purpose is to have a more perfect Union.
Art. I § 1: Vesting clause gives authority of legislature to Congress, not all power, only the power herein granted-Federalism at its finest.
Art. I §§ 2-4: Makeup of Senate & House
Art. I § 5: Procedures by which Congress is conducted, does not mention majority voting rules
Art. I § 7: How to pass a bill, discusses veto power
Art. I § 8: Enumerates legislative powers herein granted-Federalism
Art. I § 9: Lists exceptions to § 8 to give indefinite authority to Congress to make necessary powers and create necessary things or objects. Federal crimes are created by Congress’ implied power to protect & regulate.
Art. II § 1: Vests executive power in the President.
Art. II § 2: President must faithfully execute the Take Care Clause to uphold the constitution,
Art. II § 3: Lists the other duties of the President.
Art. III: Doesn’t explicitly mention judicial review, but discusses the nature of jurisdiction for Federal Courts.
Art. IV: Provides the rule making structure making states equal, prohibiting trade war & favoritism between states, creates a horizontal relationship between states.
Art. V: Describes how to adopt & ratify changes to the constitution, also expressly calls for Amendments & Bill of Rights.
Art. VI: Organizes a vertical relationship between states-
1. Supremacy Clause: Federal law trumps state law
2. State Judges Clause: Potentially implies power judicial review…tells judges to apply the Federal Constitution…state judges might make laws biased towards their state otherwise.
Episode 1 – First Bank & Madison’s Speech
· Banks are depository & tender bank notes to create currency.
· Banks were INCORPORATED via legislature passing individual acts
· Corporations in general were/are mechanism of governing authority over an identified subject, delegated authority through the state
· Private corporations were discharged to make a business structure & create bylaws within itself
· Banks are both private and public, printing currency for the public, owned by 80% private shareholders, 20% Fed Gov’t
The 1787 Philadelphia Convention voted down 8-3 Congressional ability to incorporate things like canals, specifically choosing not to vote on banks though was a strategic move, competing banks would muddy the discussion so by not brining banks into the open, no objections were made.
Madison’s Arguments against First Bank of U.S.
· Limited powers should not encompass implied powers allowing Congress to do anything it desires
· If not clearly stated in the enumerated powers, we must figure out the consequences of making an assumption & discuss via indirect argument, all possible pitfalls.
· Madison stated paying/collecting taxes is not = to chartering a bank, does promoting the general welfare mean make a bank?
· What’s the point of enumeration in Art. I § 8 if you can do anything?
· Madison’s Incidental Power view of N&P clause meant powers, without which, it is impossible to exercise the enumerated powers
· Madison worried about a chain of inference building too much momentum
Hamilton’s Argument Favoring First Bank
· Hamilton boasts the Implied Power view of N&P clause
· Hamilton says sovereign power meant the government decided what best helps the people – corporations are impliedly necessary to help the people
Second National Bank
McCulloch v. Maryland (1819 SCOTUS)
· McCulloch was an artificial case, designed question the constitutionality of chartering bank following the expiration of the 1st national bank. State of Maryland imposed a tax on all bank notes not chartered in their state
· Again, does authority over the constitution rest on the people, or the people of the States?
· Supreme Court says it rests on the states as a contract between States & Nation
Justice Marshall’s Arguments for the Bank
· Marshall argues historical precedent of First Bank is strong enough support for the Second, First Congress and George Washington both felt the bank was necessary
· Mashall refutes that the states have ultimate sovereignty to nullify federal legislation, the people ratified the constitutions, not the states alone, the people are a sovereign entity, not the states outright and acting independently
· Under Art. I, cannot lose sight it is a constitution being expounded, lack of enumeration is not dispositive of the powers Congress holds
· Textual analysis of N&P clause permits Congress to seek an objective not within the enumerated powers if it rationally/logically leads to achieving an ultimate objective within the enumerated powers
· Necessary is NOT the narrow interpretation argued for by Maryland, that necessary mean absolutely necessary…such an interpretation would render the enumerated powers nugatory
· N&P clause is designed to enlarge the powers vested in the
r be examined by the courts).
-Marshall says this is not such a case, this is an ordinary kind of case
· Did SCOTUS have power to review issues and use writs to proffer political remedies while thwarting the president from the bench-making a republic into a system of judicial review(supremacy)?
· Marshall says President has a ministerial duty to appoint agents to departments. However the specific duties of these agents are assigned by law and individual rights depend on certain duties being performed—thus a political figure has the right to legal redress
Introduces Judiciary Act of 1789
· Marshall read this act as giving original jurisdiction to the court to issue writs of mandamus (it can be read another way, a way for court to dismiss the case on statutory grounds, Marshall doesn’t want to do this).
· However, Art. III distinguishes between original & appellate jurisdiction, when can issues start directly in the SCOTUS? Art. III does not discuss writs of mandamus being on the list of original jurisdiction allowances
· Const. gives the court appellate jurisdiction in “all other cases”, the court heard this as original—Direct conflict between Art. III and Judiciary Act of 1789
· Marshall says the act is void on this case pattern, lower courts no longer enforce the law, unconstitutional because the act allows congress to add to an exhaustive Art. III list
Can an act contrary to the constitution be law?
· Who says SCOTUS should be giving interpretations of the constitution? Marshall says when law exceeds constitution it is VOID.
· Government has limited powers to legislate, written constitutional limits cannot be passed over.
· Supremacy of the constitution & JUDICIAL REVIEW
i. The will of the people
1. They have the original right to establish gov’t
2. Designed to be permanent
3. The people assign the positions of gov’t and write them down, limiting the powers of the gov’t
ii. Without the constitution, there is no Congress
1. If the legislature can alter the constitution by an ordinary act, then the constitution is void. Therefore, it is binding.
· If there is a conflict between the constitution and a congressional statute, it is the providence and duty of the judiciary, not Congress, to say what the law is. (puts the court in the position as the rule of deciding constitutionality)
· Marshall is saying “I’ve done everything I could to avoid declaring this unconstitutional,” also gives Jeffersonians what they want.
· Respects executive privilege
· Respects “political question” doctrine
· Jurisdiction: Court gives appellate jurisdiction in “all other cases,” because it does this, it means that the first list is exhaustive and final. Congress cannot change this without an amendment.