Article III establishes the judiciary- Supreme Court and inferior courts as Congress may ordain
District and circuit courts established by Congress
Constitution does not include the right of SC to strike down laws as unconstitutional
If legislation violates Constitution
McCulloch- debate of enumerated powers, narrow reading or implied powers, broad reading
Source of Authority: commerce clause, taxing power, spending power, 14th Amendment §5
Note that the necessary and proper clause can give extra power to regulate something as it relates to these
Externally limited by 10th Amendment, Equal Protection/Substantive Due Process
10th reserves rights not to states that are not explicitly given to federal government
Different types of review (rational basis, heightened scrutiny, strict scrutiny)
Source of Authority: executive power, war power
Externally limited by Due Process
Lowest authority when acting contrary to Congress’ express or implied will
In order to be upheld the power must derive from the constitution directly and power must not be able to be restrained by Congress
He can only rely upon his own constitutional powers minus any powers of Congress over the matter
“Zone of Twilight”
Some authority when acting despite silence from congress
He can only rely on his own powers but congressional indifference can enable, if not invite, measure on independent presidential responsibility
Maximum authority when acting with express or implied authorization by Congress
Individual to individual relationship
Natural rights to own person
Negative liberty- absence of obstruction, freedom from not freedom to
Dominated through 1960s/70s
Humans are naturally social
We build res publica (citizens come together to build the state)
Freedom to, not freedom from
Liberalism and republicanism based on domination and extraction of land and labor from variously situated subordinates
Lands belonging to other people
Model of land taking relied on the first two ideas
Can’t just nod at the exclusions
Inequality not a bug but a feature?
Marshall Court & Early Controversies
Necessary and Proper clause isn’t an independent authority but effects the purpose of other enumerated powers 1) is it within the scope of the Constitution 2) are the means appropriate and plainly adapted 3) are the means prohibited by the Constitution
6 Modalities of Constitutional interpretation
Appeals to Text
Prudence (or consequences)
Marbury v. Madison (1803 pg 121)
Rule: The Supreme Court has the authority to review laws and legislative acts to determine if they are constitutional
Facts: Marbury had been appointed to a position by John Adams before he left office. Jefferson defeated Adams and refused to deliver the commission to Marbury. Suit is brought to compel Madison (Secretary of State) to deliver the commission.
Issue: Does Marbury have a right to his appointment? Does he have a remedy?
Holding: Congress cannot pass laws that violate the constitution and the SC has the power to interpret what the Constitution allows
Analysis: established judicial review, the power of the court to declare a law unconstitutional
McCulloch v. Maryland (1819 pg 41)
Rule: The Constitution gives Congress the power to tax and spend for general welfare. And it has the power to make laws that it deems necessary and proper to carry out this enumerated power. Finally, states can’t make laws that interfere with the federal government’s exercise of constitutional power
Facts: Maryland required a stamp on all bank notes (taxed the federal bank). The federal bank refused to pay and MD sued McCulloch, the bank’s cashier.
Issue: Does Congress have the power to incorporate a bank?
Holding: Congress has the power to create a national bank and states can’t tax it.
Analysis: Congress has the power to tax (enumerated power) through the necessary and proper clause
Gibbons v. Ogden (1824 pg 189)
Rule: If both states and Congress pass laws that conflict about interstate commerce, the federal law governs
Facts: Ogden had a NYS license to operate a steamboat in NYS waters. Gibbons had a federal license to operate a steamboat in NYS waters. Ogden sought to enjoin Gibbons from operating in NYS waters.
Issue: Can a state regulate interstate commerce within its borders when Congress also regulates interstate commerce in the same area?
Holding: No, congress has the power to regulate interstate commerce (between the states but not solely in one state) (Art. 1 Sec 8)
Analysis: Federal supremacy principle trumps a state’s conflicting law
Slavery, Reconstruction, Empire
Jacksonian Era and Slavery
Dred Scott v. Sanford (1857 pg 268)
Rule: Since they are not “citizens” in the sense in which the word is used in the Constitution, blacks who were slaves in this country, or who are the descendants of such slaves, cannot bring suit in federal court.
Facts: Dred Scott (P) was a slave, he was taken over state lines by his master to the free state of Illinois and the free part of the Missouri territory. They returned to the slave part of Missouri, Scott’s master died and Sandford (D) becomes administer of his estate. Scott attempted to bring a diversity action in federal court based on the claim that his “residence” in the free states had liberated him from being a slave and he should be considered a “citizen” of Missouri and was entitled to bring suit against Sandford. Stanford argued that a former slave could not be considered a citizen of the US or Missouri. LC found for Sandford, Scott appealed
Issue: Can a former slave be a “citizen” so as to qualify to bring an action in federal court?
Holding (Taney): NO Blacks who were slaves in this country, or who are descendants of such slaves are not “citizens” in the sense in which the word is used in the Constitution and are thus not entitled to maintain an action in federal court. A review of history reveals quite readily that neither that class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were acknowledged as part of “the people” but were rather considered as mere property. They simply were not among those who were considered citizens of the several states at the time the Constitution was adopted and that is the time frame that must be utilized in determining who was included as a “citizen” in the Constitution.
l precedent, and court decisions.
Issue: May the president, relying on a concept of inherent powers, and in his capacity as Commander-in-Chief, make an order that usurps the lawmaking authority of Congress on the basis of a compelling need to protect national security?
Holding (J Black): No. There is no express congressional authority for these seizures, and so, if any authority for the President’s act can be found, it must come from the Constitution. This order cannot be justified by reliance on the President’s role as commander in chief. Even though the term “theater of war” has enjoyed an expanding definition, it cannot embrace the taking of private property to prevent a strike. The President’s powers in the area of legislation are limited to proposing new laws to Congress or vetoing laws he deems inadvisable. This order is a legislative act performed by the President. Only Congress may do what the President has attempted here. The Constitution is specific in vesting the lawmaking powers in Congress.
Concurrence (J Frankfurter): This decision does not attempt to define the limits of presidential authority. The President cannot act in contravention of an express congressional act, nor may he act where Congress has done nothing. Were this a case of a long history of congressional acquiescence to presidential practice, our decision might have been different.
Concurrence (J Douglas): The only branch of the government which may authorize seizures is the branch that must authorize compensation: Congress.
Concurrence (J Jackson): The powers of the president can be viewed as three separate categories of circumstances. (1) The President’s power is at its maximum when he acts pursuant to express or implied congressional authority. (2) In the absence of a congressional grant of power, the President acts solely on the basis of his powers specified in the Constitution. (3) when the President acts in contravention of congressional action, he may do so only where it can be shown that Congress has exceeded its Constitutional powers and the president is acting in his own sphere of authority. In area (3), the President’s acts are subject to the closest scrutiny. This order is not in the first category, obvs. Not in the second either since Congress has limited seizure powers to specific instances not embracing this order. There is little question that Congress could have authorized these seizures and the fact they could have denies this power to the president. Finally, President’s act is justified by arguing it is the result of powers accruing to his office by custom and practice of previous administrations. Present unconstitutional acts cannot be justified by prior unconstitutional acts of others. Presidential power may in fact enlarge due to congressional inaction, but the courts will not assist or approve this process.