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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

A.       Separation of Powers
B.       Individual Rights
C.       Federalism – relationship b/t states and fed government
D.       Creates a foundation
A.       Ways of interpreting the Constitution
1.         By the framer’s intentions
2.         By the structure
3.         Textually
4.         By different social contexts
5.         Historical context
B.       Madison v. Marbury (1803)
1.         Facts
a)         Adams appointed 42 justices of the peace and 16 new circuit court justices, including Marbury as justice of the peace
b)        Marbury doesn’t receive appointment, so he filed a petition for the writ of mandamus
c)         Madison, appointed by Jefferson as Secretary of State supposed to deliver appointment
d)        Marshall, justice who wrote the opinion, was supposed to deliver the appointment before Jefferson took office
2.         Holding and Effect
a)         Jefferson won
b)        If Marbury might have won, Jefferson may have ignored it – which would impact the prestige of the Supreme Court – Jefferson already hated the court and the judiciary b/c they were all Federalists (opposing party)
(1)        Question early on whether a decision contrary to what the President wants should be allowed
(2)        Supreme Court is limited by the political capital – requires the prestige for its power and authority
3.         Establishes Judicial Review
a)         Supreme Court has the right to overturn an act of Congress if it is unconstitutional
b)        “It is emphatically the province and duty of the judicial department to say what the law is”
4.         Reasons for Judicial Review
a)         Check tyranny of the majority (insulated b/c of lifetime terms)
b)        Relatively limited branch (ex. enforcement)
c)         Interpretation – consistency
d)        Checks and balances – separation of powers
e)         Efficiency
5.         Disadvantages of judicial review
a)         Personal biases
b)        Overturning is difficult
c)         Anti-democratic
d)        Maybe insulation is not all that great (politics involved in appointments)
6.         Limits on judicial power
a)         Cases and controversies – courts limited to decide cases in controversy that come before them (not allowed to write advisory opinions)
(1)        Must have a standing to attack a law – some sort of injury; suit must be timely (cannot be an abstract problem with the law)
b)        Political capital needed
c)         Constitution can be amended
d)        Can impeach them
e)         Judicial rhetoric – has to write opinions for all decisions; must explain the decision in legal terminology in a way the executive and legislative branches do not
C.       McCulloch v. Maryland (1819)
1.         Two Issues
a)         Can Congress create a national bank?
(1)        Yes, under the Commerce Clause & the Necessary and Proper Clause
(a)        Necessary = facilitating Congress’s enumerated powers (Marshall’s interpretation)
(i)        Flexible definition – “convenient, useful, essential to another”
b)        “In considering this question, then, we must never forget that it is a constitution we are expounding”
(1)        Here, Marshall says Congress and the executive debated the bank and still passed it, so why should he question that… is he abdicating his role?
(a)        Says the Constitution was designed to make the economy work (after the failure of the Articles that gave too much power to the states and prevented them from working together)
c)         Can a state impose a tax on that bank?
(1)        No, because the federal government should be able to express supremacy over the states; allowing the states to tax an entity created by the federal government would transfer supremacy to them
(2)        Says the federal government is the creation of the people – since they ratified the Constitution
D.       Why do we want to protect federalism?
1.         Fear of highly centralized government
2.         Experimentation is easier in a small group
3.         States are closer to the people: local is better
4.         States are non-uniform
5.         Local = higher level of accountability
6.         Voting with feet – you can leave your state
E.       Why do we want to limit federalism? (Why do we want more centralized gov’t?)
1.         Economic efficiency
2.         No race to the bottom
3.         Faster and more efficient politically
4.         Rights of minority better protected at the federal level
5.         Promote national identity
6.         Defense (national security)
7.         Consistency
A.       Analysis
1.         What is “commerce”
2.         What is “among the states”
3.         10th Amendment’s r

nt trying to fix minimum price for coal and to allow employees to unionize
b)        New Deal legislation
c)         Court says production and manufacturing are strictly local activities and are subject to state regulation, not federal
4.         What does “among the states” mean?
5.         Houston, East & West Texas Railway v. U.S. (1914)
a)         Rates on the railroad lines into Louisiana were more than those within Texas – Congress set a maximum rate
b)        HOLDING: Congress possesses the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.
c)         Congress may prevent common instruments of both intrastate and interstate commerce from being used by intrastate operations to harm interstate commerce.
d)        Congress may not regulate intrastate commerce, but it may take all appropriate measures, including controlling intrastate transactions of interstate carriers, to protect interstate commerce.
6.         A.L.A. Schechter Poultry Corp. v. U.S. (1935)
a)         Chicken distribution in NY – court says the end of the line cannot be regulated – local activity
b)        Gone through commerce but no longer commerce
c)         This court viewed “among the states” as being narrowly defined and rejected the stream of commerce argument.
7.         Does the Tenth Amendment Limit Congressional Powers?
8.         Hammer v. Dagenhart (1918)
a)         Child labor law prohibited transportation of goods produced by companies employing children and not following certain standards
b)        2 reasons the law was unconstitutional:
(1)        Labor is not commerce
(2)        10th Amendment argument
(a)        States had the right to regulate anything not enumerated to Congress to regulate
(b)        Means it is not constitutional for Congress to pass a law that falls under the states’ power to regulate