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

Constitutional Law (I)

Prof. Weinberg

Winter 2014

I. Historical Background and Contemporary Themes


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 and every state had one vote.

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 of all the states.

Commercial interests led to dissatisfaction with the Articles

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

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, Constitution

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.

iii. Was it justified? Some would argue that this was legal because the A of Conf. was a huge mistake and this was a necessity

The central government was given far more power under the Constitution

a. Article 1 §9 spells out the power of the federal government.

The Bank of the United States

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 coinsà from the Banks pers. this is good monetary policy

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.

i. Whats at stake is whether the federal government has the power? Does Congress have the power to grant a law

Alexander Hamilton proposed the Bank Congress in 1790

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.

James Madison’s view – refuting use of “necessary and proper clause” (Article 1, §8 clause 18) to allow for Bank. He believes it is unconstitutional for Congress to establish the Bank of the US.

a. Madison says the necessary and proper clause only applies to the implementation of the other 17 powers listed in §8 of Article 1. The word “Bank” not appear and there is nothing about banking more broadly.

i. Construing the necessary and proper clause any other way would open the door for Congress to create any law it wanted. The Framers must have had clause 18 was to have a limited power.

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

b. Madison lists 5-part flow chart that interprets the constitution. They are the losing side and the House passes the bill.

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

d. Thomas Jefferson also agreed

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

McCulloch v. Maryland (1819)

a. The 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

1. Justice Marshall says that this has been enacted twice

ii. Even the people who had originally opposed it went with it the second time, such as President Madison. Marshall says that they consider this carefully, these were very intelligent guys

iii. Uses necessary and proper clause to rationalize the validity of the Bank

b. 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. Strict rules that limit the government shouldn’t be part of the Constitution because the government might later need those powers that are limited

1. The Constitution does not list exactly what Congress’ powers are

c. Marshall contends that if the bank were created by the people rather than the states (p. 7-11)

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

ii. Why does the issue of whether the constitution enacted by the people or states? If Maryland is attacking the bank then Maryland is attacking the people.

d. 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

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

2. Madison would say that just because there are implied powers doesn’t mean itll always be this way. There needs to be an end or else it will take over- need to line draw

3. Necessary can mean useful.

e. Creating the Bank is no different from the way taxes are collected

i. Congress has the power to tax, but nowhere is the way in which they collect taxes listed

ii. Yet collecting taxes is recognized as a power that Congress has

f. If Congress is in good faith trying to accomplish the goals of regulating interstate commerce, that is good enough

i. If they are attempting to achieve a goal that the Constitution gives them the power to attain, it’s okay

ii. The necessary and proper clause means that Congress can use whatever means they need to use to get to their intended ends

1. The Bank will regulate interstate commerce, which is an enumerated power

2. The creation of the Bank is constitutional

g. Two key points:

i. Categorization

ii. To read the constitution that is too literal and limiting. Even though most people agreed that the bank is Constitution, this still started some issues because it expanded the powers of Congress

Interpreting the Constitution

Six modalities to interpret the Constitution, by Philip Bobbit

a. The text of the Constitution

i. Look at the text

ii. Marshall talks a lot about the meaning of the word necessary and proper; the only discussion about text is limited to this

1. The federal government has the power to charter a bank notwithstanding the necessary and proper clause NOT Because of the necessary and proper clause

iii. Marshall says don’t look too closely at text because it can be tricky

b. The theory and structure of the government established by the Constitution

i. Look at the structure the constitution created

ii. Marshall uses this extensively

c. Prudential Argument: What are the likely consequences of a decision

i. It seems that Marshall uses this approach the most

ii. Od

iginal reasons for the establishment of the bank were to fund the public debt, make a stable national currency, and make exchange

a. It could also call in or not call in private bank notes, which irritated private/state banks

President Andrew Jackson vetoed the Bank of the US in 1832

a. In his veto message, he pointed out that the bank being approved by means of precedent was inadequate, and that precedent set a dangerous authority

b. Also, it was as much the Congress and President’s duty to declare a measure un/constitutional.

i. The bank is regulated the economy and this is a problem because it is private. We are transferring power to rich and foreign people. This is completely away from the goals of Congress and it is not necessary and proper.

c. Jackson declared that the bank was neither necessary nor proper, since that is the clause the Supreme Court relied on

Jackson says the bank isn’t 100% democratically responsive; it is semi-public, semi-private

a. The rest of the directors of the bank represent the private bankers, which is going to benefit the bankers and hurt the poor.

He vetoes the re-chartering of the bank after Congress passed it, maintaining its unconstitutionality

a. He felt that he had a mandate from the American people to get rid of it, since it was a deciding issue in the election of 1832

The by-laws of the bank made it possible for aliens to get interest in property through the bank.

a. Nothing limited the sale of shares to US citizens, so foreigners could buy shares in the bank

b. Bad on national security grounds because the bank is an important issue of national security, and most states had rules that said that foreigners couldn’t own real property

c. If the bank owns real property and foreigners hold interest in it, then they actually own real property

Jackson doesn’t like that bank is also tax exempt

a. This is unconstitutional; states have constitutional right to impose taxes.

b. Jackson contradicts Marshall’s McCulloch opinion, stating that precedent is a dangerous source of authority

i. As president, his opinion that it is unconstitutional is just as important as Marshall’s opinion that it’s not

ii. Jackson says it’s part of his authority as part of the government to be involved in what Congress and the Court are involved in

Promoting the General Welfare

Congressional authority to finance “internal improvements” was a recurring issue in the early republic

a. Hamiltonians argued that Congress had the power under its authority to spend for the “general welfare”

b. President James Madison vetoed the most significant bill mandating this expenditure

i. His veto exemplifies the significance of non-judicial constitutional decision-making

Madison vetoed a bill that would have allowed the Congress to allocate funds for the building of canals/roads

a. He says it is not within their power under Article 1 §8

b. It could be argued that Congress has the power to regulate interstate commerce, and this is necessary and proper to achieve that goal

i. Promoting the general welfare is written in such a way that suggests that tax dollars can be used for this end, not allocating funds

ii. Ultimately, Congress’ power to promote the general welfare became widely accepted