1. Theory behind the constitution
· Colonial system-king had absolute power people had no representation
· After the war-Articles of Confederation
o Weak congress
§ Inability to regulate commerce
§ Inability to levy taxes
o Confederation of states, state govs had the most power, like their own little countries trade wars and taxes on products, tariffs
o No judicial or executive branch-no face of the country for foreign policy
o Constitutional convention in Philly, 1787
o Not ratified by the people, const had to be ratified by the states
o Civic Republicanism-(Anti-federalists)-decentralized government small, town hall meeting, good citizen view
o Federalists-Madisonian Republicans-representative gov. the people elect people to make policy for them, main threat is factions according to Madison, he saw good citizen as only possible when gov curtails the very freedoms we try and protect only way to get rid of factions, concern about majority oppressing minority but also powerful minorities, larger government with many different views is less oppressive
§ Bicameral legislature, the people versus insulated from the people
§ Indirect election of senators for many years
§ Division of power
· Horizontal-Separation of powers, checks and balances-Fed 51, each department should have a will of its own, keep each other in check
§ Vertical-Federalism-concurrent powers-why?-keep the centralized government in check, in a compound republic the power is divided between the two allowing a double protection of the people
o Individual rights are not mentioned in original constitution but the federalists did not see it as necessary
2. Structure of Gov.
v The Constitution
§ Rule #1: Federal government
· Limited power
· Assume no power unless the Constitution gives it power
· Federal law is supreme over state law
§ Rule #2: State government
· General police power.
· Assume they have power unless the Constitution takes it away: 10th amendment.
Ø Article III Created the Judiciary
§ Section 1.
· States there must be one Supreme Court.
· Congress may establish lower federal courts.
· Life time job security and their salary cannot be lowered.
§ Section 2.
· The Supreme Court should have original jurisdiction over cases affecting:
· other public ministers and consul
· a state shall be party.
· The Supreme Court has appellate jurisdiction in all other types of cases.
Makes the law
§8 Enumerated powers
§9 Limits on long power
Overrides veto, impeaches y
Can Veto, Ap’ts Judiciary
This table has omissions
Three Foundational cases filling in gaps in the constitution
o Marbury v. Madison, CB 29.
§ §13 of the Judiciary Act: The Supreme Court shall have the power to issue…writs of mandamus…”
§ The federalists were Adams, Hamilton and Marbury, and the Democratic Republicans were Jefferson and Madison (he changed sides).
§ The President appointed ex congressmen to be judges so they would have jobs. Adams appointed Marbury to one of these judgeships created in the Midnight Judge Act. Marbury’s consignment was signed, sealed but not delivered. James Marshall, John Marshall’s younger brother, was supposed to deliver it, but was distracted by the pub. Madison was Jefferson’s secretary of state, and would not accept the commissions. Marbury filed for a writ of mandamus (make a public official do their job).
§ Marbury filed in the Supreme Court because John Marshall was his friend.
§ This is considered by some to be a power grab by the court.
§ Did he have a right to the commission? Yes. If this was the type of job that the president has absolute discretion, the court could do nothing. This is a civil service appointment, not a political appointment, so the courts have power.
§ Do the laws of this country give him a remedy? Yes, he has a legal right to the commission, and he has a remedy. “The very essence of civil liberty consists in the right of every individual to claim the protection of the law, whenever he receives and injury.” CB 30. Introduces the political question.
§ Can the USSC give him a remedy? Marbury would be entitled to a writ of mandamus in the right court. Is the USSC the right court? No. The court looked at the constitution and the Judiciary Act and felt that they did not have the right to give a writ of mandamus in this situation, since they felt that if the constitution didn’t say that they could do that, they can’t.
§ Marshall argues that it would be pointless for the constitution to have outlined the powers of the Supreme Court, if the legislature could change it at will.
§ The nature of the constitution is to be a ceiling and not a floor, considering the nature of the constitution: to eliminate kings and to diffuse power.
§ The constitution is special – it is a fundamental principal – not an ordinary law.
§ “The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter i
8 lists what congress can do. Clause 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 U.S., or in any Department or Officer thereof.”
§ In a nutshell, are there implied powers or is the list all that the feds can do?
§ Both the feds and the states exercise power over the people. Federalism and the distribution of power is a delicate balance. We talk about federalism whenever we talk about he powers of congress. Whenever congress acts, it supplants power from the states. It is presumed that the federal government has no power, unless the constitution gives it power. When it does have power, the supremacy clause makes it wipe out state law.
§ “What question did I ask you Dave?”
o McCulloch v. Maryland.
§ This was a major issue because the people were used to an extremely small federal government, and if the feds followed the list, they would be very small.
§ Madison and Jefferson was afraid of the federal governemtn getting larger. Hamilton, the first treasurer, thought that the government needed to build roads, bridges, a university.
§ The bank was a private bank that would lend to the federal government and drew the suspision of the states. It was allowed to expire and after the war of 1812 the federal bank was renewed as wars create patriotism.
§ McCulloch ran the bank and was very unpopular.
§ Does congress have to the power to create the bank?
· The basic assumption is that the states have the power and the feds do not.
· The judge cites the fact that the bank existed before, and nothing in the constitution said that they could not. There is an adverse possession theory of constitutionality – if congress does something long enough it is presumed to be okay.
· Maryland argues that the bank is illegitimate because it is not an enumerated power in §8, and the necessary and proper clause means “absolutely necessary,” or “essential.” The state never gave the feds the power to make the bank. Maryland says that the federal power comes from the states by framing and ratifying the constitution. This theory enhances the states’ power.