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Constitutional Law I
University of Cincinnati School of Law
Bryant, A. Christopher

I. Framing and ratification

A. Articles of Confederation:
1. U.S.’s first attempt at creating a national government
2. Concerned with state powers, not a lot of fed powers àProtection of state powers. Fed government got only what wasn’t given to the states.
3. AOC created a union of separate, sovereign entities. More like current EU or NATO+
4. Problems w/ the articles:
a. No teeth – structural mechanisms were lacking for federal government to enforce mandates
i. States were violating international law and treaties à loss of international credibility
b. Economic trouble resulting from excessive debt
c. Debtor relief legislation (Shay’s rebellion)
d. Internal unrest/violence
e. Inability to raise $$$ to pay debts
B. The Constitution
1. Created to remedy problems found in Articles of Confederation (re: tax and commerce regulation). Framers= writers. Founders= ratifying parties
a. Philadelphia Convention was meant to amend the AOC, wasn’t binding until ratified. Ratified by state conventions.
i. 9 states ratified b/w themselves, then additional states could ratify and join. Only valid once ratified by a state.
2. Gave more power to fed. govt. than AOC.
a. Power shift from state to national government.
b. Congressional power of direct taxation (problem – fed. govt. couldn’t raise revenue b/c states derelict in payments, couldn’t tax citizens directly) and
c. Congressional power over commerce (problems – states not recognizing each others currency, passing protectionist measures, confusing foreign nations).
d. Created strong national Executive and Judiciary (to interpret laws, previously states interpreted laws on an individual basis).
e. Addressed the problems of states not living up to treaty obligations.
3. Bill of Rights
a. Antifederalists wanted structural changes to build in more checks and balances to prevent the concentration of power.
b. Overlooked many of the structural concerns, but gave some of what the people wanted
c. Bill of Rights was not satisfactory to opponents of Constitution. It was more of a distraction to appease opponents, but didn’t give them what they really wanted.
4. Federalist Papers are principle source of legislative history on several key principles in Constitutional interpretation.
a. Federalists:
i. Federalist No. 10:
· developed Madison’s theory that factions (majority or minority) would be far less likely to obtain control of govt in a larger republic
· The sheer size of the U.S. (both geographic and population) lent itself to a stable republican govt (moreso than individual states)
· A large republican govt basically works to protect the status quo by discouraging extreme actions (both abuses and good uses of govt power)
ii. Federalist No. 51
· attempted to answer AF fears that a powerful central govt would become tyrannical.
· argued that the checks and balances would prevent tyranny by majority over minority and minority over majority
· Madison also suggested in addition to separation of powers between branches, the separation of powers between state and federal govts would also protect from tyranny
b. Antifederalists: Didn’t want commerce based society, didn’t want fed. govt. controlling taxes and commerce. Were scared the fed gov’t would turn itself into a parliament and declare war on sts. Argued that it would lead to tyranny. See Federalist #51 for response
5. Attempts to limit the power of central government in Constitution
a. Federalism/10th Amendment – The Constitution enumerates all the rights that the federal government has and other rights not enumerated are reserved for the States. When exercising those powers it is expressly made Supreme, can wipe out State Constitutions or laws in so long as the Congress is exercising a power expressly given it.
b. Separation of Powers/Checks and Balances – discussed above in No. 51
c. Bill of Rights – States asked for a bill of rights to protect state rights, Madison gave them a Bill of Rights that protects individual rights (the rights that would not interfere with his federalist system of government).

II. Judicial Review: Legitimacy & Limitations

A. S.Ct Review of Fed. Statutes
1. Marbury v. Madison (Marshall) – Judicial Review
Facts: Case stems from political struggle b/w J. Adams (Federalists) and T. Jefferson (Republicans). Just before leaving office, Adams appointed new judges, including Justices of the Peace for D.C. Commissions for these justices were signed by Adams, but they weren’t delivered before Jefferson assumed office. Jefferson’s administration refused to deliver the commissions and Marbury asked the SC for a writ of mandamus compelling Jefferson to deliver the commissions. Madison was Jefferson’s Secretary of State. Fun fact: case decided by Marshall, who was Madison’s Secretary of State – his brother was supposed to deliver the commissions but didn’t.
a. Issues and Holdings:
i. Does Marbury have a right to the commission he demands?
· Yes. Marbury has a right to the commission b/c it was under seal, signed and confirmed by Senate. Doesn’t have to be delivered to be valid. Since his appointment was not to an Art. III court, it is independent of Executive, and thus not revocable.
ii. If he has this right, and this right has been violated, does the law offer a remedy?
· Yes. Was a specific duty by law to deliver the commission and that duty

e asks if it is unconstitutional
f. #6 Yes, butà #5, PLUS/HOWEVER, Court has final say as to actual PARTIES to case Court decides
g. #7 Yes, butà #6, PLUS/HOWEVER, once Court rules, other branches must adhere to Court’s interpretation of the Constitution rendered in Article III cases
i. Distinction between #6 and #7 is predicated on the power of the Court over cases in which it has jurisdiction over
h. #8 Yes.à (Absolute) Judicial Supremacy in Constitutional Interpretation
i. Distinction between #7 and #8: In #7, it is an unavoidable consequence of Court’s duty to decide cases, but in #8, Court uses individual cases to interpret the Constitution
5. Judicial Review stance of various historical figures
a. Marshall seems to be in line with #4 because the Court said they will not act in a way inconsistent with the Constitution
b. Lincoln seems to be a #6, but could lean to #7 in certain circumstances (unanimous concurrence, no apparent bias, accordance w/ legal public expectations, steady practice of depts. through history, not based on assumed historical facts, and been decided by the court before and been affirmed and re-affirmed).
c. Judge Moore (crazy 10 Commandments guy) is probably a #3. He agrees with Lincoln that not all decisions are created equal, however Lincoln would probably disagree with Moore’s decision because it is not supported by repetition or duration of the ruling.
d. Wechsler is a #7
e. Althouse is between a #7 and #8
f. Hart is a #8 because he thinks Court’s essential function is to play umpire and keep other branches in check under the Constitution.
B. Methodology & Interpretation:
1. Necessary and Proper Clause: McCulloch v. Maryland (1819) (Marshall) àImplied Powers
a. F: John James brought suit on behalf of the state of Maryland, against James McCulloch, a cashier at a branch of the Bank of the United States (BUS). James alleged McCulloch had failed to pay a state tax assessed against the bank. Lower Ct found for Maryland. Does Congress have power to make bank and tax on it. It basically came down to a state defying an act of Congress, and a federal bank defying an act of a state legislature.