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Constitutional Law I
SUNY Buffalo Law School
Gardner, James A.

Constitutional Law
Professor Gardner
1. Introduction: Thornton
            Types of Arguments: 
1.)   Textual: argument based on meaning of words appearing in the document.
2.)   Framer’s Intent: not good argument if not couple w/ something else that can stand on its own.
3.)   Inference from Bad Consequences
4.)   Precedent
5.)   Democratic Principles
6.)   Historical: With this example, they are rejecting British system of representation.
2. Historical Context of the framing
Constitutional was formed as result of 2 crises:
1. Oppression of the colonies by Great Britain
·         Taxes, caused revolt – eventually Declaration of Independence
2. The failure of the Articles of Confederation
Declaration of Independence (DOI) by Thomas Jefferson
            -Essentially justifications for breaking away followed by a list of grievances to justify minor premise (essentially reads like an indictment)
Talk about divine right of Kings vs. Popular Sovereignty
JUSTIFICATION: Popular Sovereignty – Locke’s political theory dealing with individual rights. All men are created equal and have certain rights. To secure those rights, they form governments that are accountable the people. Locke also said that absolute despotism (tyranny) is a violation of our natural rights. Absolute tyranny is a question of fact. Rebellion is justified if King rules with absolute tyranny. This was widely accepted political theory and Jefferson used it to justify the rebellion.
1. Tyrannized people may rebel
2. We are tyrannized
3. We may rebel.
Articles of Confederation (AOC)
à Article 2: contains important language
à Article 3: contains language of a treaty
à Article 5 §1 Continental Congress created. State legislatures appoint reps in the Congress-ambassadors
                           §4 each state has ONE VOTE
à Article 8: How paid for– “several states” supply a federal treasury by taxing their citizens. States pay into common treasuries (not individuals) thru taxing their people
à Article 9 § 6 Limits the power of Congress. Everything had to be done by 2/3 majority in States
à Article 13 how AOC can be altered—unanimously ratify changes by ALL state legislatures- this the same as Treaty practice
1. Did not create any single sovereign
-Rather 13 sovereigns
-Could not speak to foreign powers with one voice. Therefore, ineffectual foreign policy
2. Articles lacked a power to nationally levy (charge) taxes
-U.S. treasury was always way too low (states rarely paid more than 1/6 of dues)
-Unable to obtain loans, credit
-1783, Congress fled Philly because afraid of unpaid troops mutiny
3. Lack of national power to regulate commerce between the states
-States imposed duties
-States engaged in series of bitter trade wars—taxes in imports. Bad for prosperity.
4. Congress viewed as joke and consequently lacked qualified candidates/members
-Shay’s rebellion
-Fears of anarchy
-These events led Congress to rewrite articles
Constitution of the United States:
State ratifying conventions had many objections to ratifying constitution. Most common objection to Constitution is that it didn’t have a bill of rights – so they created one.
What kind of document is a Constitution?
What purpose is it intended to serve??
·         It tells us exactly what its for in the Preamble
–to form a more perfect union, establish justice…
–they obviously thought constitution capable of doing these things. 
To whom is this document intended to apply?
                        -“we the people of the US”
                        -subsequent generations “our posterity”
-expected to last FOREVER
                        -has been expanded throughout the years
What is the United States of America? What are some of its properties? 
à Union of states –Binding – on everyone
à Congress can make laws
à People elect representatives (wasn’t the case in A of C.)
à A government:
o    has a Congress that can make laws (leg power), court sys (jud power), president (exec power)
o    look at art 1, sec 8
à Has sources of revenue (tax and spend). 
à Written laws. Was never written constitution before this
à Britain doesn’t have formal constitution—it’s a mixture of magna carta, common law, etc
à Debts, treaties
Constitutional Legitimacy – Government can subject us to laws by “tacit” consent. 
Locke – By living in this society, you are deemed to consent to terms of the social contract we live by. If I accept the benefits of living within the US – I am bound (quantum meruit). 
Federalist 10: Madison
            RESPONDING TO CRITICISM OF CREATING A REPUBLIC vs. DEMOCRACY (elected representative vs. direct democracy)
·         Federalist papers are an important guide to the thoughts of the framers
·         Writers were in favor of the constitution and tried to persuade people to ratify it. Madison wrote about half of the papers. 
·         Constitution was criticized for not creating a pure and small democracy, Madison wants to defend a large republic. 
What’s wrong with Democracy? It leads to factions and conflict. Factions are people who believe all the same things, p. 33 – Democracy is ruled by mobs
Why do we have factions? It is human nature to be factious. We are jealous, weak, act on impulse and opportunity. People succumb to passions. Therefore we cannot get rid of factions unless we eliminate liberty all together. Minority factions do not worry Madison since they will always be voted down, it is majority factions that worries him. We can control factions with a large republic.
            Advantages of a large republic: 
1. Election of Representatives: select wisest, most virtuous. But what if factions get into office?
2. E

erest in steel production, Truman ordered Commerce Secretary to seize the steel mills and keep them running. Youngstown challenged seizure as unconstitutional and unauthorized by Congress. Congress had earlier passed Taft Hartley Act, giving President authority to seek injunction against strikes, but rejected an amendment to permit government seizure to avoid serious shut downs.
Rule: The President cannot seize private property without approval of Congress. The final determination of the constitutional validity of an issue should be made in a case which has proceeded no further than the preliminary injunction stage if there is a showing of irreparable harm. 
Holding:  Power must stem either from an act from Congress or from Constitution itself. Congress gave no power and specifically rejected the means used by President. President’s authority does not allow seizure too far from “theater of war.” There is no relevant law to execute, President cannot usurp lawmaking power. 
Justice Black’s Argument (Majority): Formalistic Approach
President’s power must come from Constitution or directly or indirectly from Congress as a legislative act. The Defense Prod Act and Defensive Service Act do not produce authority the proper authority. Taft-Hartley Act (NLRA) is the relevant labor legislation that deals with unionization, collective bargaining.  Specifically the Amendment to give pres power to seize industry was voted down. Therefore, congress thought about this issue and voted it down.
Black’s method is a “Metes and bounds” argument or called formalistic style of arguing. If you want to know what exec power is—look into art II; if it fits then he has power, if not then he doesn’t.
Possible argument President could make that his power is given by the Constitution (Because there is no legislation!):
a.     Executive Power Argument (Art II, §1, cl. 1): – “exec power is to execute law, to take care that law is carried out.”  Pres says he has executive power to seize industry for national security. He claims “residual power”
è Court says no –not a good argument because exec power means you’re executing something. A law needs to actually exist before you can execute it. There is no law that allows this. President does not have residual power which he gets by crying “national security”