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Constitutional Law I
SUNY Buffalo Law School
Steilen, Matthew

Constitutional Law and the Formation of the Constitution. (class 1)
5 Forms of Constitutional Arguments
(1) historical arguments, based on the intent of drafters of the Constitution or the understandings of the people who ratified it, making it law;
(2) textual arguments, based on the meaning of the Constitution’s text;
(3) structural arguments, that is, arguments based on the relationship between separate parts of the Constitution;
(4) doctrinal arguments, based largely on judicial precedent or the practice of other branches of government; and
(5) prudential or policy arguments, which concern whether a particular legal rule would have desirable consequences, either for individuals or society as a whole.
American Revolution
Mercantile System: imperial power set up colony to extract resources and act as trading partners
In this time Governors were weak and local institutions took a variety of forms such as justices of the peace and other equivalents
Late 18th century Imperial Crisis 7 Years War (French and Indian War 1754-1773)
Americans would not pay for 3 reasons
1 Constitutional
Tax violated right to self-taxation by royal charter by their assembly in conjunction with various documents
2 Ideological
Taxes deprive people of property, colonist felt property was necessary to secure their independence (ability to decide for themselves the best course of action for their colony) and that axes made them dependent on another rinstitution which could corrupt their decision-making process by making them chase little incentives.  A dependent colony would be corrupted b/c it would be dependent on the crown
3 Race/Racial
Colonists drew a connection between independence and slavery “your taxes will reduce us to slaves; reduce us to the Africans we hold” b/c slaves were part of the property that made tem independent and GB was going through emancipation where slaves brought to London were freed
American Confederation
3 Important documents
Dec of Independence
Shifted complaints from constitutional arguments to revolutionary (points to the King b/c King had failed to veto taxes coming out of the houses of commons and lords)
State Constitutions drafted mid 1770s
Substantive Changes
Changed their gov from King Charters to Cxs
States weakened the governor and strengthened the assemblies
Procedural Changes
Cx’s had to be written documents and procedures for writing and ratifying them included a convention to write it and agree to it or then submit it to the people for approval.  It was about the peoples will rather than customary practice
Articles of Confederation
Created an alliance between the states whose purpose was defense and preventing interstate conflict; resembled a treaty
Required unanimous to make amendments
Did not function in war time
Problem of spending money in war tie matters b/c congress had to beg states for money
States were broke ad utilized trade protectionism policies of border taxes to raise money
Vices of the Political System of the US (Madison)
Problems prevented Congress from serving its purposes effectively
Purposes of the Confederation Congress
Treaty of alliance for common defense and prevention of the alliance from breaking apart due to conflict
Power to spend and print money
Power to sit as a court of law to resolve land disputes
Problems of the Confed Congress (vices)
Want of sanction1: absence of power to make the states do what congress said
Resulting in failure of the states to comply with the Cx’l Requisitions
Collective course of action problem
Want of sanction2: states could do things to benefit themselves that would harm other states and congress could not prevent it
Classic republicanism says the community is never going to take action that would be bad for the common god, but people do act and hurt themselves b/c people are irrational and the people who serve in representative bodies  are motivated by 3 possible reasons (ambition, personal interest, and public good) and it is usually one of the first two
Also, all society is divided into factions and if a faction is in power there is nothing to stop it from over stepping the rights of others
A faction is a group of people who are united by a common passion or interest, they work to advance it even at the expense of the shared good/common good and this made state legislatures unjust
Madison thought of the nat’l gov’t as a way to fix state legislatures, he wanted a fed gov’t to have a veto power over states but he failed
Madison’s solution for factions:
A large republic b/c en

Federalists – those wanting to accept the Cx
Propaganda choice b/c it sounded like “confederation” which is more like a treaty
Their complaints included:
The size of the republic being too large
Broad scope of Congress
Senate – that it combined legislative, judicial, and executive power
Absence of a bill of rights
Most state constitutions had begun with a bill of rights including right to trial, some religious freedom, etc.
Some people have called the Cx a conservative counter-revolution to the American Revolution
Meaning of Energy in Federalist No37: Power to execute (laws)
Part One: The Law of Article I
Enumeration and Implied Power: The First Bank of the United States. (Class 2)
Implied Power under the N&PC (art1, sec8, c18)
Part1: Verticle Looking, allows congress to pass forgoing powers (above in the text)
Part2: Horizontal looking, other powers invested in the gov’t
Part3: Horizontal, congress is the first among equals, has power to pass laws invested in the other branches including the president
The purpose of implied power was to prevent the embarrassments of the confederation: 3 powers conferred by the commerce clause, regulating commerce with (1) foreign nations, and (2) among the several states, and (3) with the Indian tribes
First Bank
18th century banks were incorporated.  Corporations are entities that were given a sovereign power.
Some cities are inc’ed today b/c they’ve been delegated power by the state suc has policing, zoning, etc.
National banks purpose was to attract the interest of wealthy creditors.  Gov’t would want debt b/c creditors would have an interest in the stability of the bank and the bank would have an interest in the stability of the gov’t
Madison proposed that the gov’t had an ability to incorporate, was turned down, and brought it up again in the 1st congress