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

I. Background: history and theory of the Constitution
A. Why history and theory matter
B. The functions of a Constitution
C. History
1. American Revolution
2. Articles of Confederation
– Articles of Confederation – 1781, a loose confederation between the states
o Acted as a treaty between sovergein states
– Constitution by contrast was no longer a conferderation of states but instead a relationship between people and the national government
– Main Problems with the AC
o States were unwilling to give up sovereignty to national government
o Could conly be amended by unanimous decision of the state
o No interstate commerce power in the AC
o No power to tax
3. Constitutional convention
a) Political compromises on various issues
– Virginina and NY came with their own ideas
o Virginia had a completely new idea
o NJ was a rewrite on the AC
– Virginia Plan wanted both houses to be based on population
o Great Compromise created Senate and House
– Issue about interstate commerce
o North wanted power- South was afraid the national government would control their slaves
§ Comprimise interstate comeerce power for everything except slave trade
– Constituion was a political document that was created through political compromise
o Not written by a great political philosphiser
4. Ratification
a) The Antifederalists
b) The Federalist Papers
– Ratification of the Consitution resulted in the Federalist and AnitFederalist debates
o Anti-federalist- disliked the strong national government
§ They believed it would dissolve state governments
§ Thought gov needed to be small enough to be participatory
– Federalist Papers- strong support for radification of the Consitution
o Federalist Papers became an important source for Constitutional interperation, but keep in mind that it is actually propaganda
– Bill of Rights was added in 1791 to keep the antifederalist happy
D. Political theory of the Constitution
1. Direct democracy vs. representative democracy
– problems with direct democracy
o impractical in large population
o minority loses everytime—rep democracy will allow for more minority power
2. Key features of our representative democracy
a) Legislation via representatives
b) Separation of powers
– horizontal separation
o Legislature | Executive | Judiciary
– Vertical separation

Federal Government

State Government

State gov gets all power not enumerated in Constitution

Supremacy Clause- federal law trumps state law when there is a contradiction

c) Federalism
II. Overview of the Constitution’s text
A. The original text, ratified 1788
– Aricle I- legislative
o Enumeration of powers
§ 1-17 Congress shall 18, necessary and proper
o Article I also limits the authority of state government
– Atricle II- executive- president
o Election rules
o Enumeration of power
– Article III
o SC and Congress can establish lower courts, if they want
– Article IV
o Relation among the states
§ Full faith and credit
– Article V- Amending the Constitution
o Must be approved by ¾ of the states
– Article VI
o Supremacy—constitutional law trumps state law
B. The Bill of Rights, ratified 1791
– amendments added to appease Antifederalist
– I-X
C. Subsequent amendments, ratified 1798-1992
III. Relationship between constitutional law, other sources of law, and your first-year subjects

IV. Federalist No. 10
A. Major problem: factions
B. Solution: representative democracy plus an extensive republic
– Why is a large federal government desirable?
o Madison says it controls factions
o Distribution of property causes factions
– Factions can’t be eliminated
o To do so would either destroy liberty or create an impossible homogenous society
– Can’t just rely on statesmen to control factions – must instead find a structural solution to control factions
– Solutution: a republican form of government instead of a pure democracy
o A large populous nation, instead of a small one
– a representative government will be more consonant to the public good than if pronounced by the people themselves
– Antifederalist want structures to make people virtious
o Federalist (Madison) says this will never happen and instead selfish nature (factions) should be taken into account when desiging the structure of government
V. Federalist No. 51
A. Problem: we’re not angels
B. Solution: checks and balances
– Branches should be as separate as possible
o Want advisarial relationship
o However it is not foreseeable to make them completely separate
– Must have motive for one branch to have incentive to keep another branch from becoming tyrancial
o Discusses how horizontal and vertical separation ensure protection
§ Check and balance with legislative branch house àß Senate
– In order to secure against the gradual encroachment by one branch on the power of another
o giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others
– Plato thinks we need to become angels otherwise we will always have issues

II. Federal Judicial Power
A. Judicial Review of Federal Legislation
1. Marbury v. Madison
– Setting the stage for Marbury v. Madison
o Partisan political backdrop
o Enactment of District of Columbia bill
o Appointment of Marbury
o Change of administration
o Refusal to deliver Marbury’s commission
– Burr and Jefferson tied both Republicans in 1800 election
o While Congress wanted to break tite- legislature got busy creating justices and new courts including Marbury
– Jefferson was in on March 4th before Marbury could get his commission
o Jefferson was opposed to justices- worried about strong federal government
o Didn’t want Adams people enfringing on his presidency
– Justice of the Peace (Marbury)
o Most important magistrate in the lives common people have role in both legislature and judiciary
– Parsing the Marbury decision
1) Does Marbury have a right to the commission?
– Without commission Marbury could not assume his office
– Marshall determines that appointment is made when signed; commission is complete when sealed
o Why then? It is the last act done by the president
o Term of years not removable at will… therefore needs to be a point when appointment is complete
2) Does the law provide Marbury with a remedy?
– he has a right and it’s the essence of civil liberty that the law provides a remedy
– His right is of the sort that provides him a legal remedy
o If this was a political issue there would be no remedy becayse it would infringe on the president’s discretion
– When the secretary of state is acting on president’s behalf can’t sue… politically examinable
o But when secretary is acting against accordance with the law
§ Madison has a legal responsibility to deliver the signed commission (not a political issue)
§ And because this is not a legal issue, Marbury has a remedy he can seek
– This is a non-discretionary action because Marbury has a legal right to the commission-
o It was signed and completed by Adams
3) Can this court give Marbury the remedy he seeks?
a. Can a court issue the mandamus remedy that Marbury seeks?
– yes, it compelling a duty not part of executive discretion
– No, mandamus if it is a political issue (mandamus to change policy
b. Does the SC have the power to issue mandamus
– does the judiciary act allow?
o Yes- issue writ of mandamus to person holding office under the US
– But is judiciary act inconsistent with Article III
o Yes- Article III only gives SC original jurisdiction in cases that include ambassadors or between states
§ This is not an appellate case- no review
c. Does the Court have authority to declare a statute unconstitutional, and decline to enforce it?
– can an act repugnant to the Consitution be

all goes to the state- textual argument
o SC responds that Constitution is full of provisions that limit states
– SC urges for the need for uniformity in consititutional interpretation
o There is still a lack of uniformity, not all cases fo to sc or even appellate court
– Reflects the possibility of bias in state courts
o State court judges more apt to political pressure
– Marbury: Is about horizontal separation of powers
– Martin: about vertical separation of powers
Federal Judicial Supremacy
Cooper v. Aaron
– state legislative challenge to federal judicial supremacy
– States are not free to adjust the SC interpretation of Consitution
Methods of Constitutional interpretation
McCulloch v. Maryland
– Congress chartered the second bank of the US to regulate national currency.
o A Maryland anti-bank statutes imposed a tax upon all banks operating in the state that were not chartered by the state
o State then bought suit against the bank to collect the state tax
1) Does Congress have authority to incorporate Bank
– Maryland argues: no clause that allows Congress to incorporate the bank
– Marshall makes a bunch of constitutional arguments
o Historical arhument- this was debated earlie and the back won out. It was determined earlier that it was COnsitutional
§ Bad argument- doesn’t mean much that Congress passed, on other courts overruled, or Congress didn’t get rid of
o Maryland’s sovereignty argument- Powers not enumerated in the COnsitution are given to the states
§ Marshall says WRONG- government established by the people not the states. Limitation of the state’s sovereignty
§ Articles of Confederation exluded implied powers
· But the 10th amendment did not speak to excluded implied powers
o Look to legislation
§ A constitution is not suppose to look like a legal code- response to Maryland’s argument that there is no provision allowing a bank
· Of course there isn’t its an outline not a code
§ Constitution will have just the general powers and Congress will have the implied powers to reach the end
– Eventually Marshall’s analysis under Congressional authority switches to the Necessary and Proper Cluase
o Maryland believes that necessary means absolutely necessary
– So what does necessary mean?
1) Textual analysis
Ø what does the word mean? Dictionary
2) Textual internal
Ø look elsewhere in the COnsitution to see what necessary means.
Ø States may not impose dutires on imports or exports except where absolutely necessary
Ø Left out absolutely so must have mean the ame
3) Underlying Purpose
Ø since powers are granted so the government may exercise them to accomplich goals
o must allow gov to selevt best means
4) Textual internal
Ø if necessary meant absolutely necessary than proper would have no meaning
Ø it would be redundant
5) underling purpose
Ø if Maryland’s interperation is correct than it would destroy the purpose of the Consitution
6) Structural or tectual
Ø necessary and proper is plaed with Congress powers within the COnsitution
Ø not put within the limits
– so long as the end is legit let the means as long as they are not prohibited are OK

2) Can Maryland impose tax on the Bank
– Issues of federal supremacy and democratic accountability
– Federal supremacy
The power to tax the Bank by the States