Select Page

Constitutional Law I
Temple University School of Law
Reinstein, Robert J.



1787-89 Constitution


Fundamental Principles

the States retain their sovereign powers, which derive from their own constitutions, and may enact legislation without having to obtain authority from the federal government;
the federal government is one of limited powers – it can exercise only those powers that are enumerated in the United States Constitution; and
in the event of a conflict between a federal and state law, the federal law prevails, provided that it is constitutional (Article VI, Section 2).

Separation of Powers

Framers feared British monarchy-type government and that one branch of government would have too much power, so the creation of independent branches (executive, legislative, judicial) kept all of them in check.

Individual Rights

Individual rights were limited as slavery was still permitted and initially no Bill of Rights.
Unfortunately, the only right protected was the right to own slaves.

Bill of Rights

Amendments 1-10
Amendment 27

Civil War Amendments

13th Amendment (1865): Abolishes slavery (using the word “slavery” for the first time in the Constitution)
14th Amendment (1868): Citizenship; 5th Amendment due process clause now applicable to states
15th Amendment (1870): Established voting rights despite race (first amendment to restrict state powers regarding voting). However States still controlled qualifications for voting (and many limited voting to white, property-owning males)

Progressive Era Amendments

16th Amendment (1913): Income tax
17th Amendment (1913): Senators will now be elected by people not legislature
18th Amendment (1919) repealed by 20th Amendment (1957): prohibition
19th Amendment (1920): women’s suffrage



Constitutional Interpretation: (Qualifications for POTUS example)

Common Law background
Records of Constitutional convention
Records of ratification conventions
Supreme Court decision
Comparative Constitutional construction
Congressional Statutes (especially early ones!)
Avoidance of absurd results
Post ratification history

1-6 = Originalist Interpretation!

Marbury v. Madison (1803)

Facts: President Adams appointed Marbury (and 41 others) to serve as justice of the peace in D.C. Madison was secretary of state for President Jefferson. Madison fails to deliver the signed commissions to 14 of 42 of Adams’ appointees. Marbury sues Madison for failing to deliver the signed commission.
Issue: Is Marbury entitled to commission? Can SCOTUS issue mandamus?
Holding: Marbury’s legal right to his commission was violated and there is a perfect legal remedy at law (writ of mandamus) however, SCOTUS cannot issue it because they determined they did not have jurisdiction over the matter. (§ 13 of Judiciary Act of 1789 is unconstitutional as it violates Art. III, § 2)
Rule: Establishes judicial review over Congress and POTUS
Notes: Three issues according to Marshall:

Does Marbury have a legal right to his commission? Yes.
If he does have a right, and the right has been violated, do the laws of the U.S. afford him a remedy? Yes.
Is writ of mandamus the correct remedy? Yes

Can it be issued by SCOTUS? No. SCOTUS does not have jurisdiction.

SCOTUS cannot force POTUS to nominate people for positions due to separation of powers, such nomination is POTUS constitutional right (strictly political decision)
However SCOTUS can review. How you ask? POTUS cannot review his own conduct because no one can be a judge in her own case and no one is above the law. Review must be decided by impartial decision making body (exactly what SCOTUS was established to do!)

SCOTUS Jurisdiction (why didn’t they have jurisdiction in Marbury?)

Constitutional Interpretation/Review

In a case properly before the court, it must decide according to the law.
If, in the case two laws are in conflict, the court must decide which to apply.

older vs. new laws (18th A vs. 21st A)
common law vs. legislative law (legislative law is superior)
administrative law/regs vs. legislative law (legislative law is superior)
federal law vs. state law (federal law is superior – Supremacy Clause)

If the conflict is between two laws of different authority, the court applies the superior law.
The Constitution is the Supreme Law of the land.
Therefore, in a conflict between the Constitution and any other law, SCOTUS has duty is to apply the Constitution.


The Scope of Congress’ Implied Powers

Article I. Legislative Power in Congress

§ 1: Establishment of Legislative branch

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

§ 8: Enumerated powers of Congress

collect taxes
borrow money
regulate commerce
coin money
establish post offices and roads
promote science and art
declare war
raise an army or navy

§ 9: Limits on Congressional Power

The importation of slaves cannot be outlawed before 1808.
Congress cannot pass a law that allows the arrest of citizens without just cause.
Congress cannot pass laws punishing citizens for breaking laws that did not exist at the time they were broken.
Congress cannot tax state exports.
Congress cannot give preference to one state over another.
Congress cannot grant titles of nobility.
Congress cannot withdraw money from the Unites States Treasury without following proper procedures.

§10: Limits the power of the states.

States cannot make a treaty with a foreign power or coin its own money.

The Bank of the United States

The constitutional problem raised by Hamilton’s proposed Bank is this: The Constitution does not authorize Congress to pass any legislation that it considers good for the country. Instead, the Constitution establishes a federal government of limited powers. Most of the powers that Congress can exercise are listed in Art. I, § 8. That list of Congress’ powers does not contain either the power to create a bank or to create corporations generally. However, Clause 18 of that section (known as the Necessary and Proper Clause) authorizes Congress “[t]o make laws that are necessary and proper for carrying into Execution the foregoing Powers . . .”


Madison –Jefferson

Hamilton and the other advocates of the Bank claimed that a national bank was neces

ise/enforce its enumerated powers any way it chooses.
Not immune from judicial review, but separation of powers will prevent SCOTUS from encroaching on Congress’s discretion regarding legislation.

Although not an enumerated power, the incorporation of a national bank is related to several enumerated powers

Housing and backing up collected taxes
Congress could borrow money from bank
Helps facilitate/create commerce
Helps fund wars

However, what is necessary?? Refer back to Hamilton/Madison argument about what “necessary” means in respects to incorporating a national bank? Convenient?
Marshall says it’s a relative term; degrees

Necessary does not mean indispensable but here USEFUL

Means = Law enacted to carry out powers (Nat. Bank)
End = Enumerated power

Why such a lenient definition of “necessary”?

Even without using necessary and proper clause, Congress would have an IMPLIED power to the means necessary in order to execute its ENUMERATED powers. (i.e. Post Office power, but no means explicitly stated in Constitution.)

“It’s a Constitution we are expounding”

Constitution is an outline and not legal code
Constitution must be adaptable

10th Amendment

Maryland argued that power of Constitution comes from the STATES
Marshall said no, Constitution gets its power from the PEOPLE

Fed. Gov = sovereign with respect to U.S. Constitution
States = everything else, except for Constitutional Limitations

SUMMARY of Marshall’s argument re: Constitutionality of Nat. Bank

the text and structure of the Constitution;
the nature of the document;
the existence of implied powers in Congress even in the absence of the Necessary and Proper Clause;
the placement of the Necessary and Proper Clause in the Constitution;
the needs of the Nation; and
the intent of the Framers of the Constitution.

SUMMARY of Argument re: Unconstitutionality of State tax on Nat. Bank

Maryland cannot tax citizens of other states.

Can tax their own citizens but not citizens of other states.
Can still tax property/land and on the building.
But the purpose of this tax was to burden the operations of the US Bank specifically!

Maryland cannot control, impede the operation of a federal instrumentality

An increased property tax on the Bank but not all citizens is still impeding as it directly targets to burden the Bank

Did Maryland have a pre-existing power?

Nope. Maryland had property taxing power prior to Constitution and still retains that.
But they never had the power to tax federal operations and still do not. (Marshall says this is implicitly prohibited through the Constitution.)