Con Law – Green Spring 2009
Article One: Legislative power
Article I Section 8 enumerates the legislative powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch:
The Congress shall have power… To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Article I Section IX provides a list of eight specific limits on Congressional power Article I Section X limits the rights of the states.
Article Two: Executive power
Article Three: Judicial power
Article Four: States’ powers and limits
Article Five: Amendments
Article Six: Federal power
Article Seven: Ratification
Freedom of religion, of speech, of the press, to petition, and to assemble
The right to keep and bear arms
No quartering of soldiers in private houses during times of peace or war
Interdiction of unreasonable Searches and seizures; warrants
Indictments; Due process; Self-incrimination; Double jeopardy, and rules for Eminent Domain.
Right to a fair and speedy public trial, Notice of accusations, Confronting one’s accuser, Subpoenas, Right to counsel
Right to trial by jury in civil cases
No excessive bail & fines or cruel & unusual punishment
Limits the power of the Federal government
Immunity of states from suits from out-of-state citizens and foreigners not living within the state borders. Lays the foundation for sovereign immunity.
Revision of presidential election procedures
Abolition of slavery, except as punishment for a crime.
Citizenship, state due process, applies Bill of Rights to the states, revision to apportionment of Representatives, Denies public office to anyone who has rebelled against the United States
Suffrage no longer restricted by race
Allows federal income tax
Direct election to the United States Senate
Prohibition of alcohol (Repealed by 21st amendment)
Term Commencement for congress (January 3) and president (January 20.) (This amendment is also known as the “lame duck amendment”.)
Repeal of Eighteenth Amendment; state and local prohibition no longer required by law.
Limits the president to two terms
Representation of Washington, D.C. in the Electoral College
Prohibition of the restriction of voting rights due to the non-payment of poll taxes
Voting age nationally established as age 18 (see suffrage)
Variance of congressional compensation
Five Kinds of Cases
Federal separation of powers
Ways to approach cases
What is the law?
What does it do?
Why is it constitutional?
Why is it NOT constitutional?
Types of Constitutional Arguments
• Five “modes of argument”
– Text: comparing this one to others, using dictionaries
– Structure: relationship of two or more different power grants
• E.g., understanding “executive power” given to president requires in part an understanding of “judicial power” given to courts and “legislative power” given to Congress
• Understanding grants of power to feds requires understanding powers retained by states
• What did the framers think about this particular issue?
• What did the framers think about this particular text?
• What were the framer’s ultimate purposes?
• For most common-law areas, we just have precedent & policy: courts look at what the earlier courts have decided & think about what the right rule is
• Big issue for constitutional theory: how to decide what to do when the modes of argument don’t point the same direction
I. Federal power cases
• McCulloch (1819): yes on bank
• Prigg (1842): yes on fugitive slave provisions
• Dred Scott (1857): no on banning slavery in territories
• Civil Rights Cases (1883): no on CRA75
• Hammer (1918): no on child labor ban
• Darby (1940): yes on hour regulation
• Wickard (1942): yes on wheat regulation
• Lopez (1995): no on gun-free school zones
II. Separation of power cases
• Marbury (1803): yes on judicial review
• Youngstown (1952): no on presidential steel seizure
• Nixon (1974): no on presidential control of prosecution, keeping tapes secret
• Morrison (1988): no removal of special prosecutor
III. State power cases
• McCulloch (1819): no taxing bank
• Gibbons (1824): no interfering with federal shipping rights
• New York (1992): feds can’t make states pass legislation
• Printz (1997): feds can’t make states administer program
IV. Fundamental rights
• Dred Scott (1857): slavery in territories, yes
• Lochner (1905): long hours for bakers, yes
• Blaisdell (1934): foreclosure, no
• West Coast Hotel (1937): low wages, no
• Adamson (1947): self-incrimination a/g states, no
• Griswold (1965): contraceptives, yes
• Roe (1973) & Casey (1992): abortion, yes
• Glucksberg (1997): assisted suicide, no
• Lawrence (2003): sodomy, yes
V. Antidiscrimination rights
• Strauder (1880): racial exclusion from jury, no
• Plessy (1896): mandatory railroad segregation, yes
• Korematsu (1944): Japanese internment, yes
• Brown (1954): mandatory public school segregation, no
• Loving (1967): miscegenation ban, no
• Frontiero (1971), MUW (1982), Virginia (1996): sex discrimination, usually no
• Bakke (1978), Grutter & Gratz (2003): affirmative action, sometimes
• Parents Involved (2007): mandatory integration, no
I. Federal Powers
A. McCulloch v. Maryland (1819): Bank of US constitutional
0 (Art. I § 10) suggests that merely using “necessary” means only somewhat necessary (p. 46)
§ Text: 10A just says “delegated,” not “expressly delegated,” like a similar provision in the Articles of Confederation (A/C) (p. 43)
§ History/Precedent: Acquiescence by lots of people for a long time, thinking about the question carefully in response to well-developed arguments on the other side (p. 39, later Madison p. 37)
§ Structure: Feds shouldn’t have to depend on state banks (p. 51)
§ Policy: Constitution would be ridiculously complex if every implied power were included (p. 43)
§ Policy: Government could hardly work if Congress couldn’t choose means (p. 43)
· Arguments against:
§ Text: Specific powers would be superfluous if implied powers OK—e.g., power to coin money plus power to punish counterfeiters (I/8/5 & I/8/6) (p. 30)
§ History: Power to grant corporate charters considered & rejected by convention (p. 28)
§ History: Broad interpretation of necessary & proper clause not offered in debates: said to be merely declaratory (p. 30)
§ Structure: Incorporation is attribute of sovereignty & exclusive prerogative of states (p. 31)
§ Policy: Allowing this seems to mean allowing anything (p. 29)
The textual arguments in McCulloch
• Both textual arguments rely on a no-superfluity intuition:
– Why would they say “absolutely necessary” in I/10, if “necessary” means the same thing?
– Why would they allow counterfeit punishment in I/8/6, if it’s implied in power to coin money in I/8/5?
– Why would the A/C say “expressly delegated,” if 10A “delegated” means the same thing?
• Sometimes constitutions do contain superfluity, just like some writing doesn’t conform to Strunk & White: the question is how plausible it is
– Madison notes at one point that the N/P itself was described as merely restating what was implicit in the powers themselves
• E.g., Federalist 33 (Hamilton) (N/P “only declaratory of a truth which would have resulted by necessary and unavoidable implication), Federalist 44 (Madison) (even without N/P, “all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication”), Marshall in McCulloch saying N/P confirms earlier analysis
– I’m inclined to think that the I/8/6 & 1/8/5 superfluity is more plausible than I/10 superfluity, and that A/C superfluity is in-between (i.e., that Marshall’s textual arguments are stronger than Madison’s)—but you might disagree