Constitutional Law – Spring 2012
Professor Reynolds
Bill of Rights – Limitation on Federal Power
Barron v. Baltimore
· The first eight amendments to the Constitution (known as the Bill of rights) as originally enacted protected only against actions of the federal government; these provisions were not limitations on the states.
Introduction: Constitutional Supremacy and the Power of Interpretation
· Article III gives the courts the power to resolve cases (in which constitutional questions might arise), not a freestanding power to interpret and enforce the constitution.
· Judicial Power (Article III)
o Only applies to cases or controversies
· Supremacy Clause of Article VI
o The Constitution is “supreme law of the Land” that binds “the Judges in every State.”
o It doesn’t say it binds every official in every state.
· The Oath Clause of Article VI
o Supporting the view that the Congress, the President, and even the states ought to exercise review for constitutionality when they act under their own constitutional grants of power or reservations of power.
A. Separation of Powers and Constitutional Supremacy
· The Federalist Nos. 47-51, written by James Madison, explain in general terms the idea of separation of powers, with its resulting checks and balances, under the Constitution.
C. Articulating the Doctrine of Judicial Review: Marbury v. Madison
Marbury v. Madison – Justification of judicial review
· Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction.
· Facts: Before leaving office, President Adams signed a number of commissions appoint justices of the peace for the District of Columbia, but the commissions were not delivered before Adams left office. Upon taking office, President Jefferson’s administration refused to honor the undelivered commissions. Marbury and several other would-be justices of the peace brought suit directly in the Supreme Court seeking a writ of mandamus compelling Jefferson’s secretary of state (James Madison) to deliver the commissions. At the time, the federal Judiciary Act provided that the Supreme Court had original jurisdiction to issue writs of mandamus against federal officials. This arguably exceeded the scope of the Constitution’s grant of Supreme Court original jurisdiction.
· The Supreme Court held that:
i. it (rather than Congress) had the power to interpret federal laws (“it is emphatically the province and the duty of the judicial department to say what the law is”) and determine whether they conflict with the Constitution;
ii. the Judiciary Act did indeed conflict with the Constitution; and
iii. therefore the Court did not have jurisdiction to issue the requested writ.
Stuart v. Laird
· Issue: The Constitutionality of the Congress abolishing the circuit court system
· Holding: Congress does have the authority under the Constitution both to establish and abolish lower federal courts.
Introducing the Separation of Powers and Article I
· Distribution and separation of powers
o Ineffectual national government, which they had under the Articles of Confederation
o Overly effectual national government that they had experienced under King George
o Three things:
§ Separation of powers within the federal government
§ Question of federalism – split of powers between the federal government and states
§ Between the people
A. An Introduction to Separation of Powers
· The Constitution creates a regime of checks and balances and not one of pure separation of powers.
o Self-enforcing
· Congress
o Congress can check the president with its most formidable power – the Power of the Purse.
· The President
o The President has no power to tell you what to do unless there is a Constitutional power or a statute
o The President executes the laws
o President can check Congress by vetoing its bills, which veto can be overridden by a two-thirds vote of both houses.
· Federal courts
o Can check and balance both Congress and the president with the formidable power of judicial review
· What matters about these groups is that they are different and represent different interests
· The U.S. system tries to reflect the popular will without being too influenced by the passions of the moment.
· All exercises of governmental power must be either legislative, executive, or judicial.
B. Map of Article I of the Constitution
· Section 1
o Section 1 is both an introduction to Article I and a statement of two important substantive principles: the principle of enumerated legislative powers (“All legislative powers herein granted”) and the principle that those powers are vested “in a Congress of the United States.”
· Section 2
o House of Representatives
· Section 3
o The Senate
· Section 4
o Elections for Senators and Representatives
· Section 5
o Each house judges the elections and qualifications of its members…
· Section 6
o Salary of Senators and Representatives
· Section 7
o How Congress may enact laws
o Bills for raising Revenue must originate in the House
· Section 8
o This section contains the famous enumeration of Congress’s legislative powers, in eighteen separate paragraphs.
o These eighteen clauses purport to limit and define federal power, but some of the enumerations are sweeping and broad. This is especially true of the eighteenth enumeration: the Necessary and Proper Clause.
· Section 9
o This Section lists some things that Congress cannot do with its sweepingly broad, if enumerated, legislative powers.
· Section 10
o Lists things that cannot be done by states
Article I: The Legislative Power
A. “All Legislative Powers . . .: Article I, Section 1, Clause 1 and the Boundary Between Legislative and Executive Power
· Youngstown is the foundational case for the proposition that Congress’s legislative powers are exclusive.
· Youngstown is also famous as a major case on the separation of powers.
· Article I, Section 1 vests all legis
iminates against federal officers, instrumentalities, and powers underlies many doctrines we shall discuss later in the course including the Dormant Commerce Clause and the idea of federal common law.
McCulloch v. Maryland
Doctrine of implied powers
· The Court held that in addition to those powers specifically enumerated in the Constitution, certain broad federal powers are implied by the Necessary and Proper Clause.
· Necessary and Proper Clause
o Article I, Section 8, Clause 18
· Congress may use any appropriate means
o Congress is not limited only to those means that are absolutely necessary. Rather, it may use any appropriate means to achieve the ends specified in the enumerated powers. This has to be understood as any means not prohibited by the Constitution. The need for a particular means is for Congress – not the Supreme Court – to determine.
· The enumerated powers do not include the power to incorporate a national bank, but Congress may do so as a “necessary and proper” means of carrying out its delegated powers to lay and collect taxes [Art. I, §8, cl.1], borrow money [Art. I, §8, cl.2], regulate commerce among the several states [Art. I, §8, cl.3], declare and conduct war [Art. I, §8, cl. 11], and raise and support armies and navies [Art. I, §8, cls. 12, 13].
“Inconsistency” of state law
· A state law will be held void under the Supremacy Clause if it would retard, impede, burden, or otherwise stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal law.
· Here: State law that sought to impose tax on Bank of United States, created by Congress, held void as burden on federal power to regulate currency under Art. I, §8 cl. 5.
No tax on federal property or activity
· States may not tax the property or activities of the federal government itself – or of federal agencies
A Note on Article I, Section 8
· A lot of overlap between the powers of the federal government and the states.
· There is a concurrent power of taxation – the federal government and states can both tax
· Both the federal government and states can pass criminal laws
· The Supreme Court has identified two powers that are at least partly concurrent: (1) Congress’s power to regulate commerce, whether with foreign nations, among the several states, or with the Indian tribes; and (2) Congress’s power to make all laws which shall be necessary and proper for carrying into execution its other powers.
