Constitutional Law I Outline

CONSTITUTIONAL LAW
Professor McGowan                                                                                                                                    
Spring 2016
 
I. METHODS OF CONSTITUTIONAL INTERPRETATION
PURPOSIVE:
Interpreting the Constitution in light of the purpose it was intended to achieve
“Mischief” = the problem the constitutional provision, or the Constitution, was trying to solve.
ORIGINALISM:
What did the framers of the Constitution believe the text meant? (subjective belief)
If we interviewed the framers and asked them how they would interpret a clause, what would they say?
Problem: We have a multiplicity of intents. What would Jefferson think vs. what would Hamilton think?
TEXTUALISM:
The provision and the surrounding provisions give a text its meaning
The framers didn’t agree on intent, but they agreed on the text
 
II. THE BASIS FOR JUDICIAL REVIEW
Marbury v. Madison
FACTS: Marbury (π) was appointed Justice of the Peace of DC by President John Adams at the close of Adams’s presidency. When the new president, Thomas Jefferson, assumed office, he refused to finalize Adams’s appointment of Marbury. Marbury brought action in the US Supreme Court against Madison (Jefferson’s Secretary of State) seeking a writ of mandamus to compel him to finalize the appointment.
ISSUE:
(1) Does Marbury have a right to his commission? Did it vest when signed or delivered?
(2) Can the Supreme Court provide a writ of mandamus? Did Marbury sue in the right court?
HOLDING: The Supreme Court of the United States has the authority to review laws and legislative acts to determine whether they comply with the United States Constitution.
 
 
 
 
 
 
III. FEDERALISM
PRO-FEDERALISM
PRO-STATES
Free Rider Problems
Every state wants other states to implement policies, but don’t want to give themselves
With a large number of states, it’s difficult to get states to do the right thing
States might put up trade barriers if no one is telling them that they must trade freely
“Races to the Bottom”
Eg. Minimum wage laws
In the absence of federal minimum wage law, we could end up with extremely low wages as states compete to become the lowest cost stateàleads to impoverished citizens
Externalities
E.g. Pollution
Need a federal government to set rules governing pollution because other states won’t care how their actions will adversely affect another state
E.g. Resource usage
State’s check the federal government’s efforts to overregulate
Dual system of sovereignty
Republicanism:
Citizens have a greater voice in government
Promote Diversity of Policies
Diversity of policies in some areas increase citizen satisfaction/desires
State policies satisfy more people’s desires that a top down regime
States can experiment with policy
Marijuana
Education
Physician Assisted Suicide
Greater efficiency makes people happier
 
 
 
IV. LEGISLATIVE POWER
A. CONGRESS’S NECESSARY & PROPER CLAUSE POWERS
Art. I, § 8, cl. 18
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.
 
McCulloch v. Maryland
FACTS: In 1816, Congress passed an act that incorporated the Bank of the United States, and the bank opened a branch in Maryland (π). The Maryland state legislature passed an act to impose a tax on all out-of-state banks operating in Maryland. McCulloch (Δ), the head of the Maryland branch, refused to pay the tax.
ISSUE:
(1) Does Congress have implied constitutional power to create a bank?
(2) If so, may individual states tax a federally-created bank?
HOLDING:
(1) Yes; The power to create banks is ultimately derived from the Constitution’s grant to Congress of the general power to tax and spend for the general welfare. Congress is also given general powers under the Necessary & Proper clause, which states that Congress may create laws it deems necessary and proper to help carry out its enumerated powers. The N & P clause functions to expand, not limit, Congress’s enumerated powers.
(2) No; The Bank of the United States was created by a federal statute, and Maryland may not tax the Bank as a federal institution because federal laws are supreme to state laws.
 
Marshall’s Argument
Maryland’s Argument
Congress has lots of enumerated powers: taxing, raising armies, foreign trade, interstate commerce, coining money
We are going to read the N & P clause expansively to have a strong and effective federal government, unlike the federal government under the Articles of Confederation
§ 10: “Absolutely necessary” as opposed to necessary = there are different flavors of necessary
Congress has no express authorization for establishing a bank
Necessary = Need (ready narrowly)
Necessary cannot be read to swallow the forgoing powers because each part of the Constitution needs to be operative
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