Con Law Outline
– Articles of Confederation (1777-After Decl. of Inde.): An agreement between the sovereign states in 1787 that each state would send a delegate to Congress. States retained their sovereignty & Independence. The federal gov. could not tax the states, states could tender their own money, no federal courts, no federal law, no Fed. regulatory power, and articles could only be amended by a unanimous vote. This system lead to problems & States became dissatisfied, like states printing too much $ money caused inflation (bad economy).
o Congress held a convention to revise the articles. They met at the convention and did not draft a revision but a brand new constitution. This began in May 1787 and it was finally ratified by 1788. GW was made president in 1789.
o Drafting the Constitution could have been illegal because the 13 states/Articles agreed to not change the articles unless it was unanimous, 4 states did not ratify the constitution.
o Others argue it was legal because, 1) it was enacted by the people, therefore legal; 2) The states that ratified the Constitution essentially succeeded from the Articles of Confederation; 3) ) The Articles of Confederation were a treaty that had been broken so many times that by 1787 they were invalid.
o By signing the Constitution, the states gave the central govt. some power over them, but they were hesitant of any increase in Fed. Govt. power (they didn’t want the system to change)
– Corporations: when the Constitution was formed, the drafters didn’t include a provision that legislature had the power to give a charter for a corporation to form.
– Bank of US: Constitution didn’t give the Federal govt. power to issue paper $, only specie (coins). However, this would promote commerce; create a currency in which taxes could be paid, etc.
– Alexander Hamilton proposed in 1790 that Congress form a US Bank, question is if Congress has the power to do this?
o The national bank had the support of congress.
– James Madison: says that this is not w/in the power of congress because there are enumerated lists of the powers that Congress has & the creation of a bank is not an enumerated power.
o Clause 1 of enumerated powers: Congress has power to promote the general welfare, however, this related to the collection of taxes & does not related to the creation of a bank (legal entity).
o Clause 18: Congress has the authority & power…Necessary & Proper (Argument that Chief Justice Marshall uses later)
§ Madison argues that a bank may be convenient, but it is not necessary. He says that if necessary simply meant convenient, then there would be no ne
ational bank. Says it is beyond congresses Constitutionally delegated authority. Power to grant charters if incorporation had been proposed in the general convention & rejected. He says that power must come explicitly from Const., & it doesn’t. Only clauses that come close are:
§ 1) The power to lay and collect taxes to pay the debts, and provide for the common defense and general welfare
§ 2) The power to borrow $ on the credit of the US
§ 3) The power to pass all laws necessary & proper to carry into execution those powers
– Doctrine of Enumerated Powers: 10th amendment providesàPowers not delegated to the US by the Const., nor prohibited by it to the States, are reserved to the states respectively, or to the people.
o Fed govt. is one of enumerated or delegated powers, powers not expressly delegated are reserved to the states
Doctrine of Implied Powers: The court (Marshall) in McCulloch v Maryland held that in addition to those powers specifically enumerated in the Const., certain broad Fed. Powers are to be implied from the Necessary & Proper Clause.
