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

Constitutional Law (I)

Prof. Weinberg

Winter 2013

Preamble to the Constitution

The preamble to the Constitution is an introduction that articulates the purposes and principles of the Constitution. It is important to note that the preamble does not assign powers to the federal government, but rather introduces the intentions of the Founding Fathers in creating the Constitution.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Constitution

The constitution is comprised of seven articles, each addressing a different subject. Some articles are divided into sections. Below is a brief breakdown of the articles:

Art. 1—Establishes the rules and laws that govern the legislative branch. Issues such as the powers and responsibilities of Congress, how members of Congress are to be chosen, and how bills become law are explained. The longest of all the articles, Article 1 is divided into 10 sections.

Art. 2—Establishes the rules and laws that govern the executive branch. The powers of the President are divided into four sections.

Art. 3—Establishes the rules and laws that govern the judicial branch. Both the Supreme Court and inferior courts are covered in the first two articles, while section three address the act of treason.

Art. 4—Deals with the states. The relationship between the states, issues of territory, and the federal government’s responsibility to the states are covered in the four sections that comprise Article 4.

Art. 5—Establishes the rules for amending the Constitution.

Art. 6—Establishes the role of treaties, requires that all members of the individual branches of government swear an oath to support the constitution, and declares that no religious test will be required of those seeking public office.

Art. 7—States the number of states needed to ratify the Constitution, as well as lists the names of the Constitution’s signers.

Bill of Rights

The Bill of Rights is the first 10 amendments to the Constitution.

1st Am.—The freedom of religion, speech, the press, assembly, and redress

2nd Am.—The right to bear arms

3rd Am.—The right to be protecting from quartering of troops

4th Am.—The freedom from unreasonable search and seizure

5th Am.—The right to due process; eminent domain

6th Am.—The rights of those accused of crimes (trial by jury, right to counsel, etc.)

7th Am.—The right to a civil trial by jury

8th Am.—Freedom from excessive bail and cruel and unusual punishment

9th Am.—Protection of rights not specified in the Constitution

10th Am.—Powers not delegated to the federal government by the Constitution belongs to the states

Amendments 11-27

11th Amendment – States are immune from lawsuits filed by citizens of another state or foreign nation

12th Amendment – Revises the procedures for presidential elections

13th Amendment – Abolishes slavery

14th Amendment – Sets forth citizenship laws and establishes the equal protection clause

15th Amendment – Gave men of all color or race the right to vote

16th Amendment – Allows the federal government to collect income tax

17th Amendment – Senators are to be elected by the citizens of their state, not the state legislatures

18th Amendment – Prohibition of alcohol

19th Amendment – Gave women the right to vote

20th Amendment – Sets the term commencements for the President and Congress

21st Amendment – Repeals the 18th Amendment

22nd Amendment – Limits the President to two terms

23rd Amendment – Provides Washington D.C. representatives in the Electoral College

24th Amendment – Protects the rights of those who have not paid taxes to vote

25th Amendment – Sets the terms for presidential succession

26th Amendment – Sets 18 as the voting age

27th Amendment – Laws affecting the salaries of members of Congress do not take effect until the next session of Congress begins

Three issues we encounter in this course:

1. Federalism Issues

a. What sort of restraints does the C place on the federal government vis a vis the states? Is this something only the state governments can do, etc.?

b. McCulloch v. Maryland

c. Katzenbach cases

2. Separation of Powers Issues

a. If it is a power the federal gov’t can take, what branch has the power to take this?

b. Lincoln/Civil War war powers.

3. Rights Issues – Actions that can’t be undertaken by government at all.

a. Lochner – state of NY can’t enact maximum hours law for bakers.

I. Historical Background and Contemporary Themes

A. Introduction

1. 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

2. Commercial interests led to dissatisfaction with the Articles

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

3. Constitutional Convention 1787

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 and the states considered the contract broken.

4. The central government was given far more power under the Constitution

a. Article 1 §8 spells out the power of the federal government.

B. The Bank of the United States

1. 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.

2. Alexander Hamilton proposed the Bank to Congress in 1790

3. 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 in the enumerated powers of the Congress listed in Article 1 §8

ii. Since “creating a bank” is not on the list of enumerated powers, the federal government simply did not have the power to create the bank.

4. James Madison’s view – refuting use of “necessary and proper clause” (Article 1, §8 clause 18) to allow for Bank

a. Madison says the necessary and proper clause only applies to the implementation of the other 17 powers listed in §8 of Article 1.

i. Construing the necessary and proper clause any other way would open the door for Congress to create any law it wanted

ii. The only way for Congress to create a bank is to amend the Constitution to include the power

iii. Madison says that a bank would be CONVENIENT, not NECESSARY.

b. AG Randolph agreed with Madison; he felt that the creation of a national bank was outside the scope of the power afforded to Congress

c. Thomas Jefferson also agreed

d. Marshall’s Methods of C Interpretation: Text of the C.

1) Lays out rules for how to interpret the constitution (pg. 29):

· Words/Text – Where the meaning is clear, the consequences are to be admitted – where doubtful, it is fairly triable by its consequences.

· Consequences of the Text – If text is clear, then it’s clear. If not, look at policy and what will the consequence be — to leave country in better or worse shape?

· What people who wrote it meant – The meaning of the parties is a proper guide

i. Look at intent of the drafters

· An interpretation that destroys the very characteristic of the government cannot be just.

2) Madison is really serious about this idea of enumerated powers.

a. Pg. 31 – Madison asks what if the writers had forgotten to include the power to make treaties? Well too bad, no treaties unless amended.

5. Alexander Hamilton’s view – necessary and proper clause applies

a. Interprets the word “necessary” much broader than Madison, Randolph, and Jefferson; “necessary” means desirable or convenient

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

c. The Constitution, Article 1 §8, should be read as the goals that Congress should try to achieve; not what it is limited to

i. Madison’s counterargument: If this was true, then why would the founders have included that list in the first place; they would not have been necessary.

6. Madison ultimately loses – Loses in the house as house votes to charter the bank, then does the Senate. Attorney General Randolph agrees with Madison for basically the same reasons – that if this works then a similar approach would stretch the arm into anything it wants to do. Jefferson agrees – allowing powers for mere convenience would cause the delegated powers to be swallowed up. But Washington doesn’t agree with them and signs the bill into law.

7. McCulloch v. Maryland (1819) – Background: Maryland enacts a law hostile to the Bank of the US which enacts a tax of $15,000 on every bank in state that happens to be the Bank of US.

a. This case is about a question of Federalism

i. Federalism – some gov’t can charter banks (state) but is it ONLY state govts that can charter banks or also this new federalist gov’t?

ii. Second, everyone agrees that this new national govt is a govt of enumerated powers. State powers have plenary powers (can do what they wanted unless limited by the C), but fed gov is one of enumerated powers. At the same time, where Madison and Marshall diverge is what fed gov can do …

b. Charter lapses, renewed in 1815, comes to Supreme Court.

c. The first question is whether Congress has the power to create the Bank of the United States

i. Chief Justice Marshall rejects 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

d. 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. A constitution is an infrastructural document that says how gov’t should work and be structured. One way to look at this: constitutions are popular documents and we expect them to be short, and shouldn’t see it as the founders wanted to make it hundreds of pages long. He could be saying that because this is a C we are talking about something the fate of the nation will rest on, and we should look at consequences. The expectation is that Cs last a long time. We will have it a long time and therefore it shouldn’t be too limited. If an unforeseen crisis of human affairs arises, we don’t want a document that will prevent the fed gov from taking action.

iii. 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

e. Marshall contends that the bank was 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

f. Since Congress was given such extensive powers, they should be given extensive means by which to meet those powers

i. We shouldn’t deny Congress the right to utilize the most reasonable means to carry out the means to get to the ends of those powers

ii. There is nothing in the Constitution that expressly states some of Congress’ powers

· There are necessary implied powers; the question is how far they extend

· Substantive arguments: Enumerated powers don’t include the word bank but that doesn’t mean anything because the constitution by its nature includes implied subsidiary powers that can be filled in. The drafters of course couldn’t have intended to limit the gov’t to only those things listed in article 1, sec 8, because it would be unworkable. Constitution does have things that Congress can’t do, so why have those express limitations if the Constitution didn’t intend to give Congress implied powers?

· Arguments against this: Marshall’s approach allows Congress to do anything, but Marshall would say no, Congress is still limited with enumerated powers, but he says it’s wrong to look at it as Congress only being able to do those things recited by name. He says his approach is reasonable/workable and if you’re really saying it has to be listed in Article 1, Sec 8 and you deny the Congress to do those helpful ancillary stuff then the gov’t will come to a halt because there are many things the gov’t is going to need to do that aren’t listed.

· Instead, framers set up the broad outlines, the general things the fed gov was empowered to do, and took for granted that the fed gov could also do those subsidiary things used as tools to execute those named powers.

· Why Madison is wrong:

US flag

i. Word “flag” never appears in the Constitution, neither does a clause explaining what the flag is supposed to look like

ii. It is not an enumerated power, but Congress was nevertheless allowed to do it; deemed inherent power

· Every government has the right to decide what the flag should be

iii. Know that there is a typology that the implied powers are what are generally associated with art 1, sec 8. Notion of inherent powers – powers we have to assume the government has regardless of the constitution as they are powers that everyone has (flag, immigration, treaties, etc.).

4. Louisiana Purchase

a. US not happy with the foreign controlled port of New Orleans.

b. We enter into negotiations to buy it and are given option to buy all of Louisiana Territory. Problem is that the territory is HUGE. It will double the size of the US at the time.

c. Question – does prez have ability to do this? Jefferson says privately that it is clear to him that prez doesn’t have this power.

i. 1) Nothing in C that authorizes gov’t to purchase territory at all, nothing to allow fed gov’t to buy it and incorporate it into the US.

ii. 2) If we buy it, this will profoundly change who we are as a nation b/c we are doubling the size of the country. We are adding to the country many more people unlike us (many were not English speaking, many were Catholic).

d. Jefferson wants a C amendment but there’s no time. We do it anyway. Jefferson basically decides that this is too good of a deal to pass up. Not only do we get New Orleans, but we get a lot of land at a good price. Self-preservation wins out.

5. McCulloch v. Maryland, Part II – Does Maryland have the power to tax the US Bank?

a. There is no language in the Constitution that says that the state of Maryland has or does not have the power to tax the Bank. (Would be listed in Article 1, §10). Marshall rules that it is unconstitutional for the state to tax the federal government.

i. One of his reasons is that the state taxing one part of the federal government could lead to them taxing several other parts of the federal government, too.

ii. The state can’t do anything, even if it’s nominally consistent with the C if, in its nature, it is repugnant to the C. Marshall says this is implied. Because the power to tax something is the power to destroy it. If Maryland is allowed to put crippling taxes onto the bank, it would destroy it. The fed gov is supreme and can’t tolerate a state having the type of power to destroy it that allowing a state bank tax would allow. It is implicit in the C that states can’t do anything that implicitly goes against the C.

iii. It is self-evident that a state can’t do anything that is repugnant to the federal government. The power to tax the government is the power to destroy it

· They could impose high taxes that would lead to its closing

· Article 1, §10 gives limitations on what states can do, and it doesn’t mention if states can tax national bank (obviously – nothing in constitution about national bank!)

b. Maryland says that they are not seeking power over the entire national government, but that since they are part of the Union, they have the power to impose taxes. Also says they are a co-equal sovereign.

i. Marshall responds to this by saying that the power to tax was granted to the state, but only to tax its constituents, not the federal government.

ii. Taxation is based on sovereignty, and Maryland is not a sovereign, so they can’t impose the tax

· Representation reinforcement – means that the courts don’t need to step in where the voters are in a position to remove representatives, but they can get involved when the voters don’t control it. By taxing the bank, Maryland is taxing all of the voters of the United States, not just the voters of Maryland; and this is unfair, as “the people” of the US are not able to vote out the Maryland legislators who are taxing them, so this is taxation without representation.

i. Representation reinforcement – the idea here is that if Maryland raises the property taxes in Maryland the effects of its actions will be on citizens of Maryland and those voters can decide if they want to keep or remove those lawmakers. But if Maryland had the power to tax people in other states then the system wouldn’t work because people from other states can’t remove those people. Key democratic failure. What Marshall says is that this representational mechanism is what makes democracy work, but if Maryland is allowed to tax the Bank of the US, then they are, in effect, taxing the people of the United States, and those people can’t get rid of the Maryland lawmakers who are choosing to tax the bank.

c. Any taxation of the federal government would be a usurpation of the state’s power, so even a small, unimposing tax is not permissible.

i. The degree of taxation allowed is not a question for the judiciary, it is a line drawing exercise and the courts should not be the ones to decide this.

ii. The tax on the bank was a direct attack on just this one bank, not all of the banks in the state.

d. Holding – Marshall rules that the states can’t impose taxes on the bank, even though there is nothing in the Constitution that says that.

i. It would be contrary to the underlying structure of the federal government to let a small constituency tax a branch of the bank that deals with other constituents.

e. Bobbit’s Modes of Interpretation:

i. No reliance on text here, or history (the intentions of the founders)

ii. There IS strongly an emphasis on Marshall’s conception of what type of structure of government the C creates, and therefore consequences and national ethos.