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Constitutional Law I
Wayne State University Law School
Weinberg, Jonathan T.

Jonathan Weinberg; Constitutional Law; Winter 2012;

Modes of constitutional Interpretation:

1. Textual – Look to the words of the actual document and determine their meaning by looking to a dictionary.

2. Structure – The constitution grants the government all powers it needs to function.

3. Prudential approach – Interprets the constitution to make the government more efficient. The court is deciding what ruling will work best. There are two types 1) results best for the judge; 2) results best for the country

4. Historical Context- Look to the framers intentions and to the time period around the drafting

5. Precedent – There is validity in previous legislature and court decisions.

6. National ethos – How does the decision fit into the a larger national story? The narrative of America.

Creation Of The US Constitution

Articles of Confederation (1777); The first constitution that organized the States

· An agreement between the 13 sovereign states

· Congress had little to no power to tax, regulate power and conduct foreign affairs.

· They could only be amended through a unanimous vote

· Discontent lead to a push for a national government

· The articles were broken many times, and by the time of the convention they had little authority.

Constitution Convention

· Transition from “we the states” to “We the people”

· Connecticut compromise – bicameral legislation (House and Senate)

· North wants congress to regulate commerce, and the South was afraid of slave restrictions

· Instead of congress having all power the government is one of enumerate power.

· 1788 the constitution was ratified by 9 states.

· Was the ratification of the new constitution legal?

o Marshal in McCullough argued that the people had the right to write a constitution

o 2 theories support the legality

§ 1) Ratifying states had seceded and had the right to create a new constitution

§ 2) Articles of confederation had been broken many times and the amendment clause was void.

· Federalist argued that there was a duty to save the grouping of states through the use of a constitution.

The Necessary And Proper Clause (Art. I, §8)

In addition to the very specific powers given to Congress by the Constitution, Congress is given the power to “make all laws which shall be necessary and proper for carrying into execution” the specific powers.

Þ McCulloch v. Maryland [Doctrine of Implied Powers] 70

o Congress created a federal bank. The federal bank did not comply with Maryland law and was fined.

o RULE 1: Congress has power under the Constitution to incorporate a bank pursuant to the N&P Cluase

o Rational Relation Test: If Congress is seeking an objective that is within the specifically enumerated powers, then Congress can use any means that is 1) Rationally related to that objective; and 2) not specifically forbidden

§ Banks are convenient, useful, and essential instruments for handling the nation finances, and are not forbidden by the constitution. Hence, it is within Congress’s power to enact a law incorporating a US Bank.

o RULE 2: The Constitution and the laws made pursuant to it are supreme and control the constitutions and the laws of the states, and cannot be controlled by them. (Supremacy Clause Art. I, §8, Clause 2)

o This case does two things: 1) Expands the power of congress by giving life to the necessary and proper clause and 2) Elevates the SC to the provider of meaning in law. Decision guardian

o “Let the end be legitimate, let it be within the scope of the constitution… but consistent with the spirit of the constitution.” (N&P Clause implies acts necessary to effectuate the enumerated powers, i.e. collect taxes)

Reaction to McCulloch

1. Few people continued to criticize the bank, however they feared a strong central government. The federal government was becoming too far removed from the people, thus it had the potential to be oppressive.

Inherent & Implied Powers

· Inherent Power – Powers that all governments have because they are governmental units; it goes along with having sovereignty and being a country. Ex. Establishing a national flag and foreign affairs/policy

· Implied – Powers that are inferred from the express powers. Ex. McCulloch

· Enumerated – Listed explicitly in the constitution.

Louisiana Purchase (1803)

· President was worried that purchase was not an enumerated power, and wanted to amend. In the end, they decided that strict adherence would potentially destroy the nation and went through with purchase.

Andrew Jackson’s Veto Message on the passage of the second bank bill (1832)

· President vetoed renewal of the national bank charter and argued that it was unconstitutional.

· He argued that taxation was a state right and that the bill would limit that right.

· Both congress and the president have the power to determine whether a law is constitutional. No Need for SC.

· Pres can decline to execute an unconstitutional statute. Pres has the authority to sign legislation and refuse to enforce “defective” provisions. Marshalls’ decision was only what SC thought and they can’t dictate to pres what to do.

Judicial Review

Þ Marbury v. Madison [Established Judicial Review/ Relationship between court and congress] 108

o Marbury (P) was an intended recipient of an appointment as Justice of the Peace. P appealed directly to the SC for a writ of mandamus to compel Jefferson’s SOS, Madison (D), to deliver (ministerial duty) the commission. The Judiciary Act of 1789 established and authorized US courts to issue writs to courts or persons holding office under US authority.

o RULE: Art. III “SC shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and where a state is a party. In all other cases, the SC shall have appellate jurisdiction.

§ Marbury came directly to the SC, thus they did not have original jurisdiction.

o RULE: It is the SC, not congress, which has the authority and duty to declare a congressional statute unconstitutional if the court thinks that it violates the Constitution. (Implied Art. VI §2)

§ The judiciary is creating its “will.” The judiciary is gaining ultimate power to interpret the constitution.

Precedents for Judicial Review

· No provision in the constitution authorizes the judiciary to review acts of congress

· Countermajoritarian Difficulty: Judicial review is a control by an unrepresentative minority whereas the legislatures are representatives of their state.

· Justifications for Judicial Review

§ Can’t have different states interpreting federal laws differently

§ Don’t want fed law to mean different things to different states

§ SC is a good neutral reviewer , not!!!

Natural Law & Protection of Property

Natural Law Tradition – Natural law is universal law that is superior to all manmade law. The idea is, that judges discover the natural law. Man does not make natural law.

· Right of Personal Security

· Right of Personal Liberty

· Right

resident War Power/ Act w/o Congress] 220

o South Carolina seceded from the Union and fired on Fort Sumter.

o RULE: In the event of insurrection or invasion, the President has the power to deploy military forces in the absence of a congressional declaration of war.

o Under Art. I, §8 the legislative branch has the sole power to declare war… in the real world, if there is a war the president, unlike congress, has the ability to react immediately. There was not enough time to wait for congress to met and debate the issue of declaring war.

Þ Ex Parte Merryman [Suspension of habeas corpus] 276

o In 1861, President Lincoln issued an order to his Commanding General to suspend habeas corpus.

o RULE: Art. I, §9 states, the privilege of the writ of habeas corpus may not be suspended unless there is a threat to public safety due to 1) a rebellion, or 2) invasion.

o Taney ruled that the president did not have the authority to suspend habeas corpus, and that Merryman should be freed. Lincoln ignored the ruling and nothing happened. (Lincoln = Badass)

Emancipation Proclamation [1863] 279

· “I do order and declare that all persons held as slave… are, and henceforward shall be free”

· Emphasized president’s power to take actions warranted by militant necessity

· Some thought the president was overstepping his power because the executive branch can not make law, only enforce.

· Lincoln says he has the power to make law here because as commander of the army and navy he has the power to do anything to advance the war efforts and preserve the union.

The creation of the New US at the end of the CW. Re-admitting the southern states it was still debated whether the 14th Amendment was going to become part of the constitution. Ultimately under ‘military reconstruction’ the Union army came in and re-established the government in the southern states so that they would ratify the 14th and 15th Amendment (which is why Jackson was impeached because he was trying to stall the reconstruction). The creation of the new constitution with the Civil War Amendments in 1865 had many questions in a way the country started over.


1. Ex Parte Milligan [Military Tribunals] 287

o Milligan was arrested for conspiracy against the Union. A military commission found him guilty of treason and sought the death penalty. Milligan appeals to the SC.

o RULE: Art. III, §2 Military tribunals do not have jurisdiction.

§ Exception: If the civil courts cannot meet due to war, than the military courts can govern by martial law until the laws can have their free course again.

o Right to be tried in the courts is recognized by the constitution; there may be exceptions in the time of war, where the civil courts are shut down. However, Indiana had a functioning civil court at the time of the arrest.