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Constitutional Law I
Wayne State University Law School
Rothchild, John A.


I. History and theory of the Constitution
A. Constitutional Text and History
a. Articles of Confederation-1781: unity and friendship between states; FAILED:
1- Government didn’t have enough power to do what it needed to do
2- No Executive—no president
3- No Judiciary—some maritime courts but no standing judiciary
4- Congress didn’t have power to regulate commerce among the states- the states were able to make their own tariffs and prevent export and importation of goods. Interference with economic development.
5- Congress didn’t have taxation power- No MONEY to run government.

b. Constitutional Convention and Ratification- 1787:
o We the people—not we the states
o All states sent delegates but RI. The meetings were held in secret. VA plan—total re-write of Articles- proposed strong central government—the legislature would be allowed to legislate in all cases/ negative all laws passed by the several states. NJ Plan- tweak the Articles
o Divisions among the State- Each state had 1 vote
1- Representation of the States in the new Congress—Large states wanted proportional; Small states wanted equal rep. à Connecticut Compromise created Bicameralism.
2- North and South: Commercial Interests—North (wanted Congress to regulate commerce) & South (feared slave trade elimination).
3- Instead of Congress to legislate anywhere, we have a federal government of enumerated powers—only those powers assigned to it in the Constitution.
4- Protection of Individual Rights: Federalists were not in favor of a bill of Rights ((1)thought government didn’t have power to be able to take away the rights—(2) bad idea to enumerate certain rights because that means they don’t have other rights).

c. Federalists v. Anti-federalists:
o ANTI: Didn’t like the idea of strong national government- though govt. would be less accountable to the people. Critical of absence of bill of rights. Thought that you couldn’t have an effective government over a long geographical extent.
o FED: Welcomed heterogeneity; republicanism; understanding that self-interest would drive political actors; Factions were corruption, a bad thing and would be fed by a direct democracy; Checks and balances were such against factionalism and self-interested representation. Madison wanted REP democracy not direct.
o Direct Democracy: Plato and Aristotle said no because too big. Devalues minority views. (people as a whole make decisions without going through elected reps).
o Representative Democracy:
1- Legislation via Representatives
2- Separation of Powers (Horizontal Division of Govt) & checks and balances
3- Federalism (Vertical Division of govt)–
– Fed trump State: E.g. supremacy clause; Dormant Commerce Clause—power of fed govern to restrict state govt. powers.
– State trump Fed: E.g. because of enumerated nature of powers—states get everything not in the Constitution;

B. Factions- Federalist No. 10:
a. Major problem: factions
o Factions: group of people who have a particular interest; number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
o Source of Factions: most common—unequal distribution of property, human nature
o Prevention: he thinks they are inherent—the cure is worse than the disease (1) get rid of liberty (2) make people more virtuous

b. Solution: representative democracy plus

: The SC is empowered to review acts of Congress and void those that if finds to be repugnant to the Constitution. Judicial Review Established.
o Issues:
a. Does Marbury have a right to the commission? à YES
o Commission: physically handing something to the appointee—piece of paper with his appointment on it— this piece of paper would give him proof of his commission to the office;
o Signing of Commission is the completion of the appointment à because it is the last act of the president—then the Secretary of State must just seal it; The appointment is done at the last act of the pres.
b. Does the law provide Marbury with a remedy?à YES
o When the president is acting in a discretionary manner, they are only answerable politically, NOT judicially (vote out of office).
o BUT where a specific duty is assigned by law, and individual rights depend upon the performance of that duty…the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
o Delivery is Non-Discretionary à having this legal title to the office, he has a consequent right to the commission.
c. Can the Supreme Court give Marbury the remedy he seeks? à NO
1. Can a court issue the mandamus remedy that Marbury seeks? à YES
Questions in their nature political, or which are, by the Constitution and Laws, submitted to the executive, can never be made in this court…But nothing bars a court from issuing a