CONSTITUTIONAL LAW- Larson Spring 2007
Constitutional Methods for Interpretation:
Text
Look to the wording of the document (just the document itself)
Theory and Structure of the Constitution
Nature of federalism, separation of powers
Consequence: Pragmatic/Prudentialism
What are the consequences of interpreting one way or the other?
History
Most common is what the framers meant at the time of the adoption
Original intent view (only the intended meanings should apply)
Problems: the notes are in horrible condition (people might have changed their notes)
o The constitutional conventions were secretive, no one was supposed to know (substantive problem)
Precedent
Prior cases
Fundamental Values
Catch all category: the fundamental identity and character of America
US Constitution:
Written: every person can look it up (thus the arguments are on what it means)
Popular Sovereignty: the people control the government
Federalism: two governments operating over the same territory
Separation of Powers
MARSHALL COURT:
Primacy of the federal government (broad reading of national power) [willingness to strike down state laws], importance of the court [judicial review of state cases], the ‘opinion of the court’, economic development (allowing for contract clause to allow for private business)
The Bank of the US: Hamilton makes a proposal to establish a chartered national bank, bases his argument on the government has the right to achieve the limited ends in discretion with the means (the senate approved). House: Madison claimed that the chartering of a bank was outside the constitution. Jefferson: originally against the bank (slippery slope argument)
Washington signs the bill. 1811: Philadelphia has the first US bank.
2nd Bank: Congress originally vetoed 2nd Bank, but then passed it.
McCulloch v. Maryland: Maryland taxed the US Bank as many states remained hostile to the bank.
Issue: If the bank is constitutional? YES. Can the state tax the bank? NO
Answer: The Bank is constitutional. Federal government has enumerated powers and it has implied means of execution. Implied Powers
When the government is given the power, it necessarily implied execution.
This is a broad reading of Federal Power, the constitution is an outline, not a legal code
The states may NOT tax the bank “the power to tax is the power to destroy”
Prudentialism argument: slippery slope
Andrew Jackson’s Veto Message: vetoed the bank because it is
ouisiana:
Jefferson states that it is unconstitutional but that it is a necessity
Example of a different limit on executive power during war or emergency.
Argues that there is something higher than constitution (no real time of emergency in this case)
Outside constitutional limits
NATURAL LAW:
ISSUE: Are there natural rights that courts should use when making a decision?
PRO: some inherent laws, historical
CON: uncertain, unfixed, depends on culture
Marshall Court: established significant protection to private business and industry from state control.
Fletcher v. Peck: the Georgia legislature is bribed to give land to A, who then sells to B. the legislature votes to repeal the conveyance.
Court holds that B has valid title protects the third party.
Johnson: makes an argument that G-d cannot grant land to A and then take it back (a sense of natural law)
Dartmouth College: state could not take away the private charter to make a state school: violation of contract clause.
