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Constitutional Law I
University of South Carolina School of Law
Patterson, Elizabeth G. "Liz"

Con Law Outline
A.                   Marbury v. Madison
1.                    FACTS: In the waning days of his presidency, John Adams appointed, among others, William Marbury to the position of Federal judge. Marbury’s commission was not delivered before the new president, Thomas Jefferson, was inaugurated. Jefferson told his Secretary of State, James Madison, not to tender Marbury a commission, despite the order given by the previous commander-in-chief. Marbury, in turn, sought a writ of mandamus from the Supreme Court, directing Secretary Madison to deliver the commission. Marbury’s argument was that he had a vested right in the position, pursuant to President Adams’ order, and that the Judiciary Act granted the Supreme Court original jurisdiction over writs of mandamus such as his.
2.                    ISSUES: (1) Did П’s have a right to their commissions? (2) If so, had that right been violated? (3) If so, was a writ of mandamus the appropriate remedy for violation of that right?
a)                   BIG QUESTION: Whether the Supreme Court (“SupCt.”) has the power to review the constitutionality of this dispute. (i.e., what does Art III, §2, cl. 1 mean when it says “The Judicial Power shall extend to all cases arising under this Constitution?”)
b)                   HOLDING: The Court actually held that the portion of the Judiciary Act that gave them jurisdiction over this matter was unconstitutional because Congress cannot expand the original jurisdiction of the Court. See Art. II, §2, cl.2 (exclusive list of matters over which SupCt. has original jurisdiction). 
(1)                 Thus, in a sense, Chief Justice Marshall “punted.” He disposed of the case on jurisdictional grounds, without making a binding decision as to whether Marbury would get his judgeship, but still managed to establish the rule that the SupCt has the power to review the actions of the other branches of the government when the constitutionality of those actions is challenged. This was the real brilliance of Marshall’s opinion. The Court was faced with granting an order that could either be ignored or could cause a constitutional crisis between the Anti-Federalist Congress and the Federalist Supreme Court. Not to grant the order, however, would be a capitulation by the Judiciary.
3.                    The FOUR themes of Marbury
a)                   The Constitution (“CXN”) is the “Supreme Law of the Land” à If there is a conflict between a Congressional statute and the CXN, the CXN must prevail.
(1)                 “The Constitution is superior to any ordinary act of the legislature; the Constitution must govern the case to which they both apply.”
(2)                 Rationale: Passing a law in Congress requires merely a majority, whereas amending the CXN requires 2/3 à CXN controls.
b)                   The SupCt is the final arbiter of the CXN à It is the Court’s job to state, at any given time, to interpret the laws enacted by Congress.
(1)                 “It is emphatically the province and duty of the Judicial department to say what the law is.”
c)                    Art. III is the ceiling of the federal courts’ jurisdiction à Congress may not expand the original jurisdiction of the Supreme Court.
(1)                 Art III, §2, cl. 2: “Courts have original jurisdiction in [1] cases affecting ambassadors or other public ministers and [2] those in which a State shall be a party.” Nowhere in there does it say anything about mandamus cases, and Congress cannot add such cases to that list.
d)                   Separation of Powers
(1)                 Legislative vs. Executive vs. Judiciary
(a)                 “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”
(b)                 “The province of the Court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion.”
B.                   Cooper v. Aaron p. 101-105
C.                    McCulloch v. Maryland
1.                    Facts: the state of Maryland imposed a tax on any bank that was not chartered in their state. Among those banks affected by that tax was the bank of the United States, a congressionally created entity aimed at stabilizing the nation’s economy after War of 1812. The bank refused to pay the tax, so Mr. John James filed suit for himself and the State of Maryland against McCulloch, the cashier of the Maryland branch of the Bank of the United States.
2.                    Can Congress incorporate a bank such as the Bank of the United States? YES
a)                   On Article I
(1)                 “The powers given to the gov’t imply the ordinary means of execution… the gov’t which has the right to do an act, and has imposed on it, the duty of performing that act, must… be allowed to select the means”
b)                   On the “necessary and proper” clause and what it means
(1)                 “in the common affairs of the world, it frequently imports no more than that one thing is convenient, or useful or essential to another… it is generally understood as employing any means calculated to produce an end”
(2)                 The clause is placed among the powers of Congress, not the limitations…its terms purport to enlarge, not to diminish the powers vested in the gov’t
(3)                 Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate… which are not prohibited by, but consist with the letter and spirit of the constitution.
3.                    Can Maryland tax the branch of the Bank of the United States in their state? NO
a)                   It is of the very essence of supremacy to remove all obstacles to Congress’ action within its own sphere, and so to modify every power vested in subordinate gov’ts, as to exempt its own operations from their own influence.
D.                   US Term Limits, Inc. v. Thorton
E.                    Gibbons v. Ogden
1.                    FACTS: The State of New York granted a monopoly to Fulton and Livingston, who then licensed Ogden to operate a ferry between NY and NJ. Gibbons operated a competing service and violated the state monopoly by using the same waterways. Ogden sued for an injunction and won at trial. Gibbons appealed, asserting that he was entitled to use the waterway pursuant to the 1793 Federal Coasting Act, as his was a “vessel in the coasting trade.” In other words, Gibbons argued that the laws that authorized the state monopoly were enacted in violation of the Commerce Clause of the Constitution, Art. I, §8, cl. 3, 18: “Congress shall have the power to . . . regulate commerce among the several states . . . [and] to make all laws which shall be necessary and proper for carrying into execution the [power to regulate commerce]”
2.                    ISSUE: Who prevails, the state monopoly or the federal Act? FEDERAL
a)                   “Commerce among the states cannot stop at the external boundary line of each state . . . such a power would be inconvenient and is certainly unnecessary . . . [only] the completely internal commerce of a state, then, may be considered as reserved for the state itself.”
b)                   “[The power to regulate], like all others vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations, other than are prescribed in the Constitution.”
3.                    Remember the Big 5 themes from Marbury? This case represents one of them – The Constitution is the Supreme law of the land; all state laws bow down before it!
F.                    U.S. v. E.C. Knight
1.                    FACTS: The American Sugar Refining Company had purchased the four Philadelphia refineries, giving it nearly exclusive control of the manufacture of refined sugar within the U.S. The U.S. Government argued that this was in violation of the Sherman Antitrust Act, and that sugar, as a “necessary of life” throughout the U.S., was the subject of interstate commerce.
a)                   ISSUE: Can

price at stockyard found to violate Sherman Anti-Trust Act. Dealers argued Schechter and lost, because the stop at the stockyard was merely an “interruption necessary to find a purchaser with the expectation that they will end their transit in another state.”)
K.                   Stafford v. Wallace
1.                    (“stockyards are but a throat through which the current flows”)
L.                    Schechter
1.                     (interstate nature of the transaction ended when product reached defendant)
a)                   Schechter’s products did not have “direct affect” on IC
b)                   “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people.”
(1)                 NOTE: This holding really pissed of Roosevelt, prompting what would later be called his “Court-packing” plan, in which he selected only judges favorable to his strong federal views.
2.                    Does the 10th Amt Limit Congress’ Power? (“The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.”) And what are these powers that will be left to the States? 
M.                 Champion v. Ames
1.                    FACTS: Champion was indicted for carrying Paraguayan lotto tickets across state lines in violation of a Fed law. Champion’s argument was the Congress’ power was limited to regulation, not prohibition.
a)                   Congress CAN regulate
(1)                 Lottery tickets would “pollute commerce and corrupt the moral climate”
(2)                 Congress has the power to “regulate commerce among the several states à Congress’ “regulation” of interstate commerce may include prohibition.
N.                   Hammer v. Dagenhart
1.                    FACTS: Congress had passed a law preventing the interstate commerce of products made using child labor. The law prohibited interstate sale of products made at factories where, 30 days prior to sale, the factory employed kids. Ironically, this case was brought by a father on behalf of his young sons, seeking to enjoin the enforcement of the law! (i.e., “Put my kids to work in the dangerous cotton mill!”)
a)                   HOLDING: Congress CANNOT regulate this way
(1)                 Cannot regulate distribution of objects on the basis of “harmfulness” unless the objects themselves are harmful. No evil was accomplished by their interstate transportation because the evils involved in child labor had all occurred before they entered the stream of commerce. 
(a)                 “The goods themselves are harmless . . . before transportation, the labor of their production is over, and the mere fact that they were intended for interstate commerce does not make their production subject to federal control.”
(b)                 When commerce begins is determined not by the character of the commodity, nor the intention of the owner to transfer it to another state, nor by his preparation of it, but by its actual delivery to a common carrier for transportation or the actual transfer.”