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

Federalism
· Argument is straightforward on level of federal separation of powers. For the government to do something there is always potential for it to do bad things. The separation of powers is there to make it harder for gov’t to do things. Congress cannot pass a law by itself. Executive branch shouldn’t sign any “bad laws.”
· Both state and federal governments are subject to constitutions in order to protect against tyranny.
· Does federalism add to this protection? If we are concerned about limiting the probability that individuals will be regulated, federalism is not necessarily a good instrument for increasing the difficulty of passing regulations. When there are two governments, they are twice as likely to regulate.
· Local governments may be better suited to regulate because the legislators have more intimate knowledge of the local situation and local concerns. Furthermore, citizens may be able to better influence their local legislative representatives. There is also a benefit from having states be able to conduct isolated experiments. Federalism also allows people to be most happy with their governments because people can choose to live in states where they agree with the laws.
Why is federalism good?
· Experimentation of states passing different laws – we can see which works better. Laboratories of democracy (states handle issues differently i.e. gay marriage and we get to see which law works).
· Control – if things are regulated close to the people, it can worker better according to that state’s needs and folks can get involved in law making.
· Checks and Balances: If one of governments (state or federal) ends up extremely stupid or evil, there is a limit to how much damage they can do all by itself.
6 Methods of Constitutional Interpretation
1. Textual – What do the words of the document actually say?
2. More generally understanding of theory and structure of government the constitution establishes.
3. Prudential approach – What will work best? “We should interpret it this way b/c it will yield a good result.”
4. Legislative history – What was proposed? What were drafters thinking?
5. Precedent – What have other courts said or done in the past?
6. National (or narrative) ethos
McCulloch v. Maryland (1819), p. 17 – Judicial Examination of Congress’ Authority to Create a Bank
· S Ct held that Maryland could not tax notes issued by the Bank of the United States. Federal tax immunity exists whenever the state seeks to tax the United States or an agency or instrumentality closely related to it so the two cannot be viewed as separate entities.
· The Constitution empowers Congress to borrow, coin money and regulate the value, and to tax collectively these inherently include the power to hold that money and move it. A bank of the US is a means by which to carry out that power. Court read the “necessary and proper” clause as broad enough to encompass power to create a bank. The constitution says nothing about whether or not Maryland can tax the bank of the US.
· Maryland is not sovereign over the bank. Taxation is a power which comes from sovereignty. Maryland can only tax that

eal property.
o The bank exercises the power to regulate currency even though it is not a public institution. He argues that it should by public rather than private, and responsive to voters.
· Hasn’t the S Ct already decided this question? Why does Jackson reach the opposite conclusion?
o Marshall’s decision in the S Ct is just what the S Ct thinks, and that it can’t control what he thinks. As the president, he must make a decision based on his opinion on what is constitutional, in exercising his veto power. Like Marshall, Jackson believes he had a right / duty to uphold the Constitution as he sees it.
o Both Congress and the President also have the power to determine whether a law is constitutional. They do not need to defer to the S Ct.
What powers does each branch of government have?
Federal power is actually quite limited. Courts will refuse to allow the federal government to undertake an enumerated power, if the court believed the purpose of the undertaking was to regulate a matter which infringed on state’s rights. Hammer & Bailey.
Types of Governmental Power
· Congress powers are not strictly limited to those which are enumerated in the constitution.
Ex. In 1794 Congress passed a statute changing what the US flag looked like.