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Constitutional Law I
University of Illinois School of Law
Solum, Lawrence B.

The Founding
Assignment 1: Background Assumptions of the Constitution
John Locke, Second Treatise on Government: An Essay Concerning the True Original, Extent and End of Civil Government, 1690
 in the state of nature- with no real government- there are still moral  obligations and every person has the power to enforce those obligations in two ways:
by acting preemptively to prevent violation of the laws of nature
by punishing violations of the laws of nature
 Locke’s Laws of Nature
can’t invade person or property of others
can’t injure others for no reason
can’t take other’s provisions
Government has limited power- can protect property, but not take it
property: real property and things over which you can acquire dominion, the right to control your own body, labor, and intellectual function- rights to privacy
~Locke’s theory on property ownership rights: Can acquire as                 much as you want as long as as much and as good is left for others
as each person is responsible for being their own judge- will lead to feuds- so social contracts are necessary
Elizur Goodrich, The Principles of Civil Union and Happiness Considered and Recommended-
natural law- would exist even in the absence of God-
Natural law trumps created law
The Declaration of Independence of the Thirteen Colonies, July 4, 1776
James Madison, Vices of the Political System of the United States
Failure of the states to comply with the constitutional requisitions
Encroachments by the states on the federal authority
Violations of the law of nations and of treaties
Trespasses of the states on the right of each other
Want of concert in matters were common interest requires it
Want of guaranty to the states of their constitutions and laws against internal violence
Want of sanction to the laws, and of coercion in the government of the confederacy
Want of ratification by the people of the articles of confederation
Multiplicity of laws in the several states
Mutability of the laws of the states
Injustice of the laws of states
Articles of Confederation- differences with Constitution
Power lies almost entirely with the states. FG has very little power
No executive branch- president of constitutional congress, but that is a more administrative role
FG is starved for revenue because only revenue is voluntary contributions of the states
Very minimal judiciary with jurisdiction only over admiralty/maritime cases. No federal criminal law
Assignment 2: The Origins of the Bill of Rights
State v. Federal Power
Bill of rights not originally in the constitution
Anti Federalist Complaints about the lack of a bill of rights
Centinel I, Independent Gazetteer- felt history showed governments had a tendency to become tyrannical
Federalist objections to a bill of rights
2 main objections to the Bill of Rights
Believed it to be unnecessary because they felt the constitution did not authorize the violation of any of those rights- the articles giving power to the branches are very specific in what those branches can do
Felt that having a bill of rights would do more harm than good. Once you list all the rights people have, then someone will come along and say those are the only rights you have
James Wilson, Speech in the Statehouse Yard
James Wilson, Speech to the Pennsylvania Ratification Convention
James Iredell, Speech to the North Carolina Ratification Convention
The Anti-Federalist Reply
Madison’s Reply to the 2 main objections
for the first- yes it is unnecessary b/c of how the constitution is designed, but some day someone may stretch the powers in such a way that they would permit congress to regulate those things- acts as a redundant safeguard- a back up to the limited enumerated powers safeguard
for the second- we have written the constitution in such a way that it won’t happen b/c of the 9th amendment which says that the enumeration of certain rights cannot be construed to deny others which are retained by the people.
Brutus II, The New York Journal- the constitution as written was meant to last for many generations- the public good is the ends of the civil government
James Madison Delivers on the Promised Bill of Rights
Madison’s Speech to the House Introducing a Bill of Rights- he addressed the two issues which are listed above: 12 amendments- 10 passed, 11th was added 1993- limits congresses ability to give themselves raises (doesn’t go into effect until next congress), 12th never passed- separation of powers
Popular sovereignty undertones?
Assignment 3: The First Constitutional Controversies
Constitutionality of the Bank of the United States
Federalists for the bank, anti federalists are against
James Madison, Speech in Congress Opposing the National Bank (was at the constitutional convention)
Opinion of Attorney General Edmund Randolph- (was at constitutional convention)
Opinion of Secretary of State Thomas Jefferson- president should defer to congress (Jefferson was in france during the constitutional convention)
Opinion of Secretary of Treasury Alexander Hamilton- necessary means at all reasonably necessary (not present at constitutional convention)
Madison sees means and ends as important while Hamilton sees ends as important and means not so much
Assignment 4: The Concept of Sovereignty
Art. 1 Section 8- lists congress powers
Clause 1- power to lay and collect taxes
Clause 2- borrow money
Clause 18- necessary and proper clause
What does necessary mean?
Strict interpretation limits flexibility of constitution in general and also limits flexibility in Congress’ carrying out their powers more specifically
Flexible interpretation: (1)comports better with possible future needs (2) constitution is not a statute that can be easily amended, it is meant to last a long time
Article 5- amendment process
Madison argues for strict interpretation- absolute necessity-unanticipated needs can be taken care of by the states.
Chisholm v. Georgia: 1793- states do not have sovereign immunity
Judiciary act of 1789- allowed for original jurisdiction over state suits
Executor of an estate sues Georgia- the man who died had supplied uniforms to Georgia during the war and was not reimbursed. Georgia claimed sovereign immunity and didn’t show up in court.
The court debated who had sovereignty: was it the states who would have sovereignty unless congress passed a law saying otherwise
The court rules that the constitution was by the people for the people and the sovereignty is held by the people and that sovereignty doesn’t offer immunity.   So, since Georgia didn’t show up- the default judgment against them stood.
 As sovereigns they have appointed the state and federal governments as their agents- as agents, the state cannot have sovereignty.
Also the court decides that they have the power to govern disputes between a state and cit

ons saying that the government didn’t have the power delegated to them to pass the alien acts and that the constitution expressly forbid the sedition act (esp. the second part)
Madison’s Report to the Virginia House of Delegates- congress doesn’t have the power to do this- its not delegated by the constitution
This all raises the question- is there state nullification- if states are sovereign they can either nullify or secede- if they are not they can do neither- this doesn’t really get settled until the end of the civil war
The Marshall Court
Assignment 1: The Judicial Power
Marbury v. Madison: 1803
When Jefferson came to power as president, the previous president had left several commissions that he had signed in the last hours of his presidency. The guy who was supposed to deliver them did not. Jefferson ignored those commissions claiming they were only valid if delivered, and appointed his own people to the positions. Some of the people who would have received the commissions sued claiming that the previous president’s signature was all that was needed. Marbury sued for a writ of mandamus, which is used to force a public official to do something. The supreme court decides that perhaps Marbury was right in believing he should receive the commission, however it is not within the power of the Supreme Court to issue writs.
Among the powers- probably not meant to restrict
Writ of Mandamus- order commanding a government official to carry out an act
The court had to ask three questions
Has the applicant the right to the commission he demands?
The court says yes- once it was signed it was official so Marbury had a right to delivery of the commission
Is there a remedy?
The court says there is a remedy- when there has been a rights violation there must be a remedy
is issuing the writ of mandamus the correct remedy?
The All Writs Act empowers federal courts to issue mandamus- however it is a separate act that gives the supreme court that power over its jurisdiction- for asking a government official to perform a non discretionary act
The Supreme Court is not authorized to issue this sort of Writ so they remand the case to a lower court which can
Where there’s a right, there’s a remedy
Nullifies section 13 of the Judiciary Act
Principle holding- when there is a conflict between a congressional statute and the constitution- the court has the duty to strike the statute
Lots of interpretations of necessary
Very necessary
Absolutely or indispensably necessary
Convenient or useful- solum doesn’t like
What is absolutely necessary- there is no other way
Evidence of the Meaning of the “Judicial Power”- it was assumed that the court had the power to set aside unconstitutional acts of congress