Outline
Saturday, November 14, 2009
2:18 PM
· Contents
I. Interpretation and History
1. Modalities
2. The National Bank Debate
3. McCulloch v. Maryland
4. Jackson Veto Message (Compartmentalism)
5. Frederick Douglas on the Constitution (Written in English; Protestant Influence)
II. Fed. Leg. Power
1. Commerce Clause
a. Pre-1937 – Limited (Gibbons v. Ogden)
b. Post-1937 – Unlimited (1937 – Laughlin Steel Co;1942 – Wickard v. Fillburn)
1. Civil Rights (“Ollie’s Bar-B-Q”)
2. Limitations (Minimal)
2. Taxing and Spending
a. Income Tax (YEAR) – shift to unlimited fundraising power
b. General Welfare
1. Pre-1936 – No
2. Post-1936 – Yes (US v. Butler)
3. Legal Tender Cases
a. 1871 (Knox v. Lee) Allows for Paper money
4. Statutory Reversal (of SC)
III. State Powers
1. 10th Am. & Federalism
2. Dormant Commerce Clause (DCC) [Police Powers]
3. Privileges and Immunities (P&I) – Right to Travel (Always!)
4. Secession (No)
IV. Economic Liberties
1. Substantive Due Process (Lochner)
2. Taking and Contracts Clauses (Calder v. Bull) (Always!)
V. 13th, 14th, and 15th Amendments
VI. Equal Protection
1. Slaves/Free-Blacks
2. Women
3. Indians
4. Enemies
VII. 1st Amendment
1. Expression (Speech and Press)
2. Religion (Exercise and Establishment)
VIII. Executive/War Powers
1. Civil War
2. WWI – WWII
3. Post
· Eras
o Ratification (1789) and Marshall Era (1800-35)
o Taney Court and The Civil War (1835-1865)
o Reconstruction to the New Deal (1866-1934)
o New Deal and Modern Era (1934- )
1. Interpretation
o 6 Modalities
1. Textualism
· What do the words from the Con. Say?
2. Structuralism
· Spirit of the Con.
3. Prudence
· Madison – “where [The Constitution] is doubtful, it is fairly triable by its consequences.” – if it is not Constitution then is it good for the US?
4. History
· What was the purpose of the law when it was passed?
5. Precedent
· What have the courts (Pres. Or Congress) done?
6. Ethos – Is it faithful to the destiny of the nation?
· Lawrence v. Texas – There is a move afoot to accept gays in our society
o 1791 – The National Bank – the First Big Constitutional Debate
A. Madison leads the opposition to the bank
§ One of his arguments is that I was there when the Con. Was written and I know that this bank is UnC.
· Not very persuasive; “father knows best” isn’t the best argument in a Democracy
§ The Con. Is a list of Granted Powers, and not just a list of exceptions placed upon unlimited power.
· Madison seems to be saying there are NO implied powers (but that is probably not the case, its more that he doesn’t agree with having the bank)
· If you don’t agree with me, you turn the Con. Into a list of exceptions placed on unlimited power
§ “where [The Constitution] is doubtful, it is fairly triable by its consequences.” – if it is not Con. Then is it good for the US? – seems to make the opposite argument…
· Interpretation is akin to policy making
§ The more important something is, the more likely it is to be in the Con.
· If there was not Treaty Clause, then we could not make treaties! (this is a dumb argument, the Gov. probably has any powers needed to keep a Gov. running, or inherent powers, otherwise how do we change the flag)
§ Why isn’t the bank covered in the taxation power?
· Well its not a Tax
· Not (Absolutely) Necessary to lay taxes, arguable whether it is proper.
· Doesn’t borrow money either
· So why don’t we write some borrowing and taxing into that law? Well that probably won’t fool anyone…
B. Attorney General Randolph (Virginia Aristocrat) Opposes the Bank
§ Necessary & Proper is a “surplusage” and ought not be claimed as an advantage to either side
C. Jefferson’s (TJ) against the Bank
§ “The Con. Allows only for means which are ‘necessary’, not those which are merely ‘convenient’ for effecting the enumerated powers.” (yea we wouldn’t want to do what is convenient)
§ Necessary = Absolutely necessary
§ Foundation of Con. Is 10th Am.
o Hamilton argues FOR the bank
§ Bank was merely a means to an end, a
t to choose what means are “most direct and simple.”
· ¶28-45: The rest…
· Marshall says the Con. Was written is was meant to last the ages. (its not clear that this is true)
§Madison – might agree with this, but he might be surprised himself to hear this
§TJ – absolutely disagreed, thought we would make a new one every 19yrs (or so). He wasn’t actually there for the first one, and if he had been in Philly in the Summer he might disagree.
· ¶38 – Marshall’s Test – “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional .”
§Spirit basically a surplus, is in spirit if all the other things are there.
· ¶41 – Bank is Necessary (Hamilton’s argued this better)
· ¶42 – Legislature decides what is Necessary (key point from Hamilton)
§He says the Court will catch Congress if they are acting in “bad faith” (cheating!), implies that Congress will have a great deal of deference though.
· Reaction to Part 1
§ Madison – He gave the store to Congress ¶38! Most people thought this too, and did not like it.
§ Missouri Compromise – Decision down during the Missouri Compromise and raised the question as to whether Congress could ban slavery in the Territories, South was adamant that they could not.
· Did it mean that Congress could end slavery? Well no one really thought that (Abe didn’t even think they could)
Part 2 ¶45-75: Can Maryland Tax the bank? No
· If a fair tax is legal than an unfair tax is legal (the power to create is the power to destroy) , and as a judge he will not decide degrees of necessity; if Congress left to decide what is reasonable (this is how judges view their role for nearly a centaury)
