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

Constitutional Law (I)
Prof. Weinberg
Winter 2006
I. Historical Background and Contemporary Themes


The Articles of Confederation (1777) was the first constitution among the states.

a. It established that Congress required delegates, and had one representative from each state
b. Congress had no power – it couldn’t tax or make anything other than coined money; major powers were left to the state.
c. Articles could only be amended by unanimous vote

Commercial interests led to dissatisfaction with the Articles

a. Poor economy led states to issue too much of their own paper money

Constitutional Convention

a. Congress authorized a convention to revise the Articles, which had to be approved by Congress and the states.
b. Instead of revision, delegates wrote new document
i. Nine state conventions were held
ii. Instead of agreement by the states, the document was to be ratified by the people
c. George Washington inaugurated as first President of the United States in 1789, at which time two states still hadn’t ratified the Constitution
i. Rhode Island
ii. North Carolina
d. Was it legal for delegates to create a new document that overturned the Articles of Confederation? It was no longer required that all 13 states ratify the document (only 9)
i. It could be considered that 11 of the 13 states declared their independence from the Articles of Confederation (akin to the colonies separating from England)
ii. The Articles were simply a treaty that had already been broken in several ways.

The central government was given far more power under the Constitution

a. Article 1 §9 spells out the power of the federal government.

The Bank of the United States

A national bank would establish an institution that could issue paper money

a. The Constitution forbade the states from making their own paper money, so the only form was gold and silver coins
b. Bank would make notes that would increase the commerce, give the government a place to put its money, give people a place to issue tax payments, grant government loans.

Alexander Hamilton proposed the Bank Congress in 1790
Issue was whether the federal government had the power to set up a national bank

a. James Madison explained why the federal government could not set up a national bank
i. He felt that the establishment of the Bank was not i

cts Madison’s view that Congress is barred from establishing it because it is not an enumerated power
ii. Uses necessary and proper clause to rationalize the validity of the Bank
b. In considering this question then, we must never forget that it is a constitution that we are expounding
i. Chief Justice Marshall is saying that the Constitution needs to be flexible due to longevity, specifically concerning the possibility of federal power
ii. Strict rules that limit the government shouldn’t be part of the Constitution because the government might later need those powers that are limited
· The Constitution does not list exactly what Congress’ powers are
c. Marshall contends that if the bank were created by the people rather than the states
i. He feels this is important because it would be a lot easier to justify Maryland taxing the bank if it stood as its own institution
Since Congress was given such extensive powers, they should be given extensive means by which to meet those powers