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

Constitutional Law I

Professor Weinberg

Wayne State University – Winter 2013

Background to the Constitution

Six Different Types of Constitutional Arguments

· These are Modalities of Constitutional Interpretation and the things Judges look at.

· Note: the problem with these modalities is that none of them are entirely satisfactory and any one of them can have pretty serious problems.

1. Appeals to Text (and Rules for Construction of Texts)

o Look at what the Constitution SAYS and what that MEANS

o Consider:

§ Ambiguity – sometimes language can have more than one meaning

§ Vagueness – what does “unreasonable” mean?

§ Non Literal Usage – language is never 100% determinate; almost all of the time in constitutional law, the text is not especially helpful. There is a limit on how much the text can tell us.

2. Constitutional Structure

o Look beyond toe words – how the particular provisions fit with one another and how the provision should be understood

o Ex: Marshall in McCulloch v. Maryland notes that the positioning of the Necessary and Proper Clause is placed in the “power section” and not the “restrictions” section.

3. Prudence (or Consequences)

o Judge determines what approach is best

o Ask: if we rule one way or another, is this going to work? Will this benefit or harm the country?

o Two Types:

§ Broad – whether this type of interpretation would have good or bad consequences

§ Narrower – whether having this particular decision maker decide the question in a particular way would have good or bad consequences

4. History

o This has a lot of appeal because it echoes with how we read statutes – people look at legislature history all of the time.

o Ex: Breyer, dissenting in Heller v. McDonald the majority is relying on historical decisions made by 17th Century England – really?

o If you have an approach in looking at constitutional law that can make a decision go one way or another because of its history – that’s funny because even historians change their mind over time about history.

o On the other hand, if you left out the text and its history, the rest of the modalities are still subjective and allow the argument that the judge will then have more power.

5. Precedent

o Note: precedents don’t have to be judicial – there’s also Congress, the President, and other state/local government officials.

6. National Ethos

o How does this decision fit in with the larger national story and who we are?

Three Types of Constitutional Law Questions

1. Power Questions

o Is this action unconstitutional because it’s outside the enumerated power of the federal government? Does Congress have the power to enact the rule in the first place?

o The Federal Government is a government of limited enumerated powers.

o Think – McCulloch v. Maryland

2. Rights Questions

o Congress has the power to do something, but it can’t do it or shouldn’t do it because it interferes with some amendment rights/constitutional right?

o Violating the Due Process clause

o Dred Scott Case – 2nd Holding

3. Separation of Power Questions

o Who has the power to do something? Which branch of government vs States

o Ex: The Prize Cases

§ The Federal Government, Congress can impose a federal blockade but not the President because you must be in a state of war and only Congress can declare war.

The US Bank

· Issue: Can the government create a U.S. Bank?

o Hamilton proposed the bank in 1790.

§ Issue: Whether the federal government had the power to set up a national bank


§ Hamilton:

· Necessary and Proper Clause applied. Interprets “necessary” as much broader than Madison/Randolph/Jefferson; “necessary” means desirable or convenient.

· Congress has the power to do anything moral that is a means to the ends of the enumerated powers.

· The Constitution, Article I Section 8 should be read as the goals that Congress should try to achieve; NOT limits.

o NO

§ James Madison:

· Federal government is only allowed to do the specific things that are listed in the Constitution and “banks” are not mentioned

· “Necessary” does not mean that which is “convenient” – the bank is just a convenience.

· The terms “necessary and proper” give no additional power to those already enumerated

· Slippery slope issue – if the bank is determined to be an enumerated power through any of the above, then virtually anything can be considered a power of the government.

· If creating a “bank” was that important of a power, why didn’t the framers mention it?

McCulloch v. Maryland

Note: This case is one of the most important in the history of the Court because it established the Doctrine of Implied Powers and emphatically articulated the supremacy of the federal government.

· The Court held that the Necessary and Proper Clause was now a grant of discretionary power that must be based on powers granted by the Constitution

Facts: The State of Maryland enacted a law imposing an annual tax of $15,000 on all banks or branches of banks in the state not chartered by the state legislature (the only bank that fit this description was the U.S. Bank).

Holding: (written by Chief Justice Marshall)

· Even though the Constitution does not expressly grant Congress the power to incorporate a bank, it can do so under a Doctrine of Implied Powers.

o It is also constitutional under the Necessary and Proper Clause

o The incorporation of the Bank of the U.S. is a convenient, useful, and essential instrument in the performance of the fiscal operations of the Federal Government

· The Federal Government is supreme over the states – so a bank created by it pursuant to it’s constitutional powers is immune from taxation by the states.

o The power to tax is the power to destroy. It is also the power to control. Thus, the tax by the State to control an operation of the government is therefore unconstitutional.

o The State did not set up the Constitution, the people did. When you attack the Bank, you attack the people.

· Representation Issues:

o If you are taxing Marylanders, then Marylanders can vote you out. But when you tax the Federal Government, you are taxing Vermont, Virginia, etc. which their citizens can do nothing about.

o Representation Reinforcement is harmed by allowing Maryland to tax the U.S. Bank.

o Note: this portion of the opinion gave a wide scope to the Supremacy Clause. A State Law is void if it retards, impedes, burdens or otherwise interferes with the accomplishment of the Congressional purpose in enacting the Federal Law.

More on Justice Marshall’s Opinion

o The enumerated powers in the Constitution can only be the “great outline” with other powers and things to be filled in later

§ The drafters of the Constitution could not have intended to limit Congress to only those specifically listed in the Constitution

§ Any interpretation that restricts the government’s ability is not good

§ You cannot read the Constitution so literally so that it constrains the government from doing what it will need to do.

o Marshall maintains the Nationalist, Federalist mentality

o Sometimes “necessary” can mean what is helpful and convenient

o Bottom Line: not only does Congress have the power to make the bank, it also has broad authority to do whatever else that is helpful to effectuate the enumerated clauses.

o Think about:

§ The Articles of Confederation stated that Congress’ powers are only that which is expressly given, but in the Constitution it does not say that.

§ Structural Argument: the Necessary and Proper Clause is located in the power section and not the restrictions section of the Constitution

§ Marshall is very focused on the story of American and what the Congress needs (power-wise) in order to be successful.

Post Maryland v. McCulloch

· In 1932, Congress passed a bill extending the Bank’s charter, but by then support of the Bank collapsed and President Andrew Jackson vetoed the bill.

o Jackson found the bank to be unconstitutional – “mere precedent is a dangerous source of authority” but there is precedence supporting the position against the bank.

· Note: the bank of the U.S. was not reconstituted until the creation of the Fed. with the New Deal

The Election of 1800

The Framers set up a system of electing a President, which turned out to be a bad idea. The system had State appointed electors who voted for a President and VP – the most votes becomes President, the 2nd most becomes VP. What the Framers did not anticipate was that political parties would form and they would only want people from their political party.

· This election gave rise to the 12th Amendment:

o It recognized the rise of political parties as part of the Constitutional System by explicitly holding separate ballots for the candidates for the Presidency and VP, with the presumption that partisan electors would vote for the “ticket” of their party.

The Marshall Court

Following the 1800 election, John Marshall was appointed Chief Justice (1801) of the Supreme Court and served until 1835. He wrote several highly significant opinions that helped define the powers of the Federal Government. He focused


o The grant of judicial power extends to all cases arising under the Constitution and laws of the U.S. Since the Constitution is superior to any ordinary legislative act, it must govern a case to which both apply.

o The Supremacy Clause (Article VI Section 2) declares that the Constitution and those acts of Congress made in pursuance thereof shall be the supreme law of the land. Thus the Court must determine when such acts are actually made in pursuance of the Constitution. The power of judicial review is implicit in the Constitution.

o Note: In more recent times, the Court has asserted a broad judicial review power, claiming the responsibility of being the ultimate interpreter of the Constitution. Once a law is declared unconstitutional, the courts simply decline to enforce it.

§ The ability of courts to give judicial review was essential to Marbury v. Madison’s holding.

Rationality of Judicial Review


· Departmentalism

· Constitutional Protestanism

· Popular Constitutionalism

· Counter-Majoritarian Difficulty – Since SC justices aren’t elected by the people, allowing them to trump the power given to majoritarian positions seems backwards if we want to represent all people.

o Justifications for Judicial Review – The SC has the power to overturn state laws which are unconstitutional (otherwise we would have different interpretations of the Constitution throughout the country); preserves lasting fundamental values; SC makes sure that our elected representatives actually represent.

o Non-Contermajoritarian Difficult – When the Court invokes the Con, it appeals to legal enactments that were approved by a series of majorities – namely the majorities of those representative bodies that proposed and ratified the original Con and its subsequent amendments. There are factions that try to manipulate the con forms of political life to pursue their own narrow interests. Judicial review, by preventing normal politics from overcoming con politics, is a means of ensuring that “ignorance, apathy and selfishness of normal politics” are not permitted to overcome decisions made by “the public during a period of heightened mobilization and public-spiritness.”

1. Fletcher v. Peck (1810)

o In 1795, prompted by bribes, the Georgia legislature conveyed 35 million acres of state land to certain private companies for only 1 ½ cents per acre. Several private investors, including Plaintiff-Fletcher, bought parcels of the land. The next year, the legislature rescinded the conveyance. Fletcher sued on a warranty of title, challenging the rescission. Article 1 Section 10 (contract cclause) says that the government can’t void a contract. The only problem is that there is no contract here, it is a transferring of an interest in real property. The transaction is finished, there is not obligation left between the parties. The contract clause was originally established to prevent debtor relief laws. But, Marshall says that the contract clause should be read more broadly: no doing things that upset property, contracts, etc. The U.S. CANNOT take away the land because the right to property is a natural right.

o Held:

§ A state legislature cannot forfeit the rights of bona fide purchasers of land when the seller of that land acquired title by illegal activity.

· The original grantee (seller) had full possession of the legal estate when he sold it to Plaintiff and Plaintiff had no notice of the underlying fraud and did not participate in it.

§ The legislature cannot disregard these principles of property law.

· Even if one legislature may repeal a law passed by a former legislature, it may not undo an act done under the law.

· People have rights that existed even before the Constitution and that includes the right to own property