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Constitutional Law I
SUNY Buffalo Law School
Steilen, Matthew

Steilen, Matthew – Constitutional Law
SUNY Buffalo School of Law
Spring 2016
I. History (Info needed for Midterm)
Background of Constitution (in the period 1776-87)
State Constitutions:
Most states adopted during 76-87
Trial and error drafting
Come innovations created
1. Conventions – historically “default assembly”
For people
All interested parties
For form a charter or constitution
Written Constitutions
Historically they could exist in both written and no written
Gives rise to disputes
In the midst of the Revolutionary War (which shaped view of the law)
Effects relationships, and institutions responsible for war
Articles of Confederation (ten years before) 1777
Stronger than a treaty (because harder to change)
More akin to a “league of friendship”
Why did they fail:
Congress could not tax
Could not regulate commerce
Trade wars and tariffs became a problem
Asked for money from states but had no way to enforce compliance
Difficult to amend
Needed unanimous vote – states who didn’t want change just wouldn’t show up
Art I – Name separate entities
Art II – “expressly” (not implied) delegation of certain powers to congress
Art III – Mutual interest “firm a league of friendship” “for common welfare and defense”
Philadelphia Convention: – 1787
An attempt to fix (fall of 76) in Annapolis
Summer of 77
Delegates tosses A of C to create new doc
Some complained this was outside of their authority, but generally was considered to be under “emergency powers.”
Hamilton viewed it as “a proposal.”
When it was ratified it became valid
Methods of proceeding in how to interpret constitution:
VA came up with VA Plan
Suggested that rest of delegates use it as a basis
VA had thus an oversized role
Subcommittee of “committee of style” that came back with very different document
Gov Morris decided to list the powers specifically in 1787 instead of keeping the vague language of “other appropriate.”
Key features of Constitution
Representation (great compromise)
Bicameral legislature
How adopted or amended
Adopted by 9 states in convention
Amended by article 5
Popular sovereignty
Theory of the ultimate source of power
Separation of powers
Separate branches by functions they serve
Branches are equals
National Powers
Tax, commerce, foreign policy, war
Federalism (10th Amendment)
Some power saved for individual states
I Preamble – people & purpose
I – vesting clause “herein granted”
II-IV – created house of congress
V-VI – Procedures by which congress functions “parliamentary privilege”
VII – how to pass (approved and signed by pres.) pres. can veto
VIII – enumerated power of congress
IX – exceptions to enumerated powers
X exceptions to state legislatures
II § 1 power of president, § 2 exceptions § 3 – duties of the president (sotu address, make sure laws are faithfully executed)
III Not covered (judicial review implied) § 2 national judicial power
IV& VI – general rule making states equal. No trade wars or preferential treatment and define relationship between federal and state. 
supremacy clause – fed trumps state 2) state judge’s clause (basis for judicial review).
V & VIII – how to adopt and how to change constitution. Ratification.
Bill of Rights
Speech, Religion, Assembly
Militia, bear arms
No quartering
No unreasonable searches
Due Process – basis of doctrine of fundamental rights
Speedy Trial
Cruel and Unusual
List not exhaustive
State Powers (what’s left)
National Banks
Nothing in constitution specifically about banks
Hamilton submitted plan for chartering a national bank to be owned jointly by govt & private shareholders.  Senate adopted. House after vigorous debate didn’t adopt
Madison felt it was not within the power of the fed because
Didn’t tax
Didn’t provide for the health and welfare
Attorney General’s Opinion
§ 35 of judiciary act of 1789 created office
Duty to inform pres. On opinion on law

theory is rejected, but in the meantime, there was idea that states gov’ts could interpose themselves between people and excess of national power and pres. Should nullify(veto) excesses of Congress.
IV. Judicial Review and development of the courts
Marbury V. Madison
Important to contemporaries as a measure of the power of the Supreme Court to interfere w/executive branch.NOT as a measure of the power of the courts to declare laws unconstitutional
The justification for Jud. Rev. described in Marbury was about 15 years old and taken from other sources.
The reason it is important to US is because it was the first time Sup. Court made a Fud. Rev. decision (using mandamus to force executive to do something.
In the question re: Marbury’s right to his commission court says: yes, he had a right to it. had to try to explain that he isn’t really impeding pres. Power by forcing new pres. To appoint a judge.Congressional law demanded that the commission be delivered. it was already there (ex post facto) court demanded commission be delivered.
Also said they can’t force/order.  It’s not in their power. BUT there was a legal remedy.  So court had to justify declaring a law unconstitutional
A law that exceeds the cont. is not a law.
It is the duty of the court to compare laws to see if the can be made consistent with the Cont.
American courts of law in the late 18th century attempted to limit legislative power in a number of ways.They pointed not only specific provisions of cont. text but also made arguments based on:
Natural law and social contract
Vested rights
Historical evidence of limits of legislative power