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Constitutional Law I
University of Dayton School of Law
Greene, Dennis

Constitutional Law
Spring 2013
Professor Greene
University of Dayton
1) Barron v Baltimore (1833)
·         FACTS—Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses. The trial court awarded Barron damages of $4,500, but the appellate court reversed the ruling.
·         ISSUE—Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
·         HOLDING/RATIONALE—No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
·         State governments are not bound by the Fifth Amendment's requirement for just compensation in cases of eminent domain. To demonstrate that Constitutional limits did not apply to states unless expressly stated, Marshall used the example of Article I, Sections 9 and 10.
·         However, beginning in the early 20th century, the Supreme Court has used the Due Process Clause of the Fourteenth Amendment (interpreted, however, to have the same meaning as the 5th amendment) to apply most of the Bill of Rights to the states through the process and doctrine of selective incorporation. Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled.
2) United States v Lyon (1798)
·        Lyon, born in Ireland, was a Democratic-Republican congressman from Vermont. He was indicted under the Sedition Act for an essay he had written in the Vermont Journal accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. While awaiting trial, Lyon commenced publication of Lyon's Republican Magazine, subtitled “The Scourge of Aristocracy”. At trial, he was fined $1,000 and sentenced to four months in prison.
3) United States v Callender (1800)
·         Callender was a Republican journalist, he published a book in which he called the Adams administration a “continual tempest of malignant passions” and the President a “repulsive pedant, a gross hypocrite and an unprincipled oppressor”. Callender, already residing in Virginia and writing for the Richmond Examiner, was indicted under the Sedition Act. Callender was convicted, fined $200 and sentenced to nine months in jail.
·         He only served a portion of his sentence before he was pardoned by Jefferson after his ascent to the presidency.
1) Marbury v Madison (1803)
·         Foundational case for global constitutionalism as well as American constitutionalism
·         The first clear judicial exposition of the power of the courts to review the constitutionality of acts of Congress and the President
·         Marbury is the first case where the Supreme Court, in a litigated case presented to the entire Court, explicitly held an Act of Congress unconstitutional while issuing an opinion that laid claim to the power of judicial review.
·         In the presidential election of 1800, Democratic-Republican Thomas Jefferson defeated Federalist John Adams, becoming the third President of the United States. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, outgoing President Adams and the Federalist-controlled 6th Congress were still in power. During this lame-duck session, Congress passed the Judiciary Act of 1801. This Act modified the Judiciary Act of 1789 in establishing ten new district courts, expanding the number of circuit courts from three to six, and adding additional judges to each circuit, giving the President the authority to appoint Federal judges and justices of the peace. The act also reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court. On March 3, just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801.
·         FACTS—The case began on March 1801, when a Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.
·         There are three ways a case can be heard in the Supreme Court:
(1) filing directly in the Supreme Court;
(2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme Court;
(3) filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of federal law.
The first is an exercise of the Court's original jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.
·         Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. Marbury's argument is that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus.
·         ISSUES—Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests?
·         HOLDING/RATIONALE—Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” In other words, when the Constitution–the nation's highest law–conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.
·         Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution, and it is the role of the judicial system to interpret what the Constitution permits. The federal

thought about it.  Why can’t this President do it too?
·         The Jackson concurrence is the most cited and says: There is no definite proof from authority on this issue; stuff has to be gleaned from previous actions.  Since government is not definite, and sometimes the three areas blend in with one another, there are three general areas which executive authority work with other powers:
o   1. When President acts pursuant to an express or implied authorization of Congress.
o   2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority.  When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
o   3. When the President takes measures incompatible with the expressed or implied will of Congress, this is the lowest level he can extend his authority.
MuCulloch v. Maryland
·         Facts. Congress chartered the Second Bank of the United States. Branches were established in many states, including one in Baltimore, Maryland. In response, the Maryland legislature adopted an Act imposing a tax on all banks in the state not chartered by the state legislature. James McCulloch, a cashier for the Baltimore branch of the United States Bank, was sued for violating this Act. McCulloch admitted he was not complying with the Maryland law. McCulloch lost in the Baltimore County Court and that court’s decision was affirmed by the Maryland Court of Appeals. The case was then taken by writ of error to the United States Supreme Court.
·         Issue. Does Congress have the authority to establish a Bank of the United States under the Constitution?
·         Held. Yes
o   Congress’ power to incorporate a bank derives from its incidental powers conferred by the Necessary and Proper Clause for carrying into execution the powers vested by the Constitution in the United States government. Although we don’t see the word “bank” or “incorporation” among the enumerated powers of the Constitution, we do see express powers such as to (i) lay and collect taxes, (ii) to borrow money; (iii) to regulate commerce and (iv) to raise and support armies, etc. The fact that the necessary and proper clause was placed among the powers of Congress, not the limitations thereof, is also significant. This placement shows that the framers intended to enlarge, not diminish, the powers vested in Congress.
o   When a state taxes an entity created by the Congress, it acts upon an entity created by people over whom it has no control.
·         This case turns on the meaning of the word “necessary” in the Necessary and Proper Clause. Rather than interpret the word narrowly to mean absolutely necessary, Chief Justice John Marshall interprets the word broadly to encompass usages such as needful, useful, incidental, or conducive to