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

Weinberg – Fall 2015
The U.S. Constitution
      I.    Background
a.     Ratified in 1789 in large part to address security concerns (i.e. each state too weak to fend off attack by foreign states); also b/c of widespread inflation and generally bad economy
b.    Supreme law of the land, through which the people vested in a national government sovereign powers, by which to provide for the common good, common defense, etc.
c.     Was it legal?? 3 possible answers:
                                          i.    Articles of Confederation were a treaty, violated so many times that they’re no longer valid
                                         ii.    Secession theory: the states that signed had seceded from the union, thus their drafting and acceptance of the new document was justifiable
                                        iii.    It’s irrelevant whether it was legal b/c it was inevitable
     II.    Extent of Central Gov’t Powers Granted by the U.S. Constitution
a.     McCullough v. Maryland – Marshall: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
b.    Vs. federalist perspective: only those powers specifically enumerated or that have a direct connection (necessary to the extent that w/o such powers, central gov’t’s enumerated power would be rendered obsolete/meaningless).
    III.    Interpretation
a.     Constitution unique to interpret in that it was written to last a very long time. Commonly accepted meaning of its text has changed drastically over the years.
b.    Central Q: Which interpretive modes should be used?
                                          i.    what makes an interpretation “off the wall” or “on the wall”?
Bobbitt’s Methods of Constitutional Interpretation
I.              Appeals to the Text
                                          i.    E.g., Marshall’s discussion of definition of “necessary.”
1.     Marshall explains “necessary” should be interpreted broadly b/c of const’l context
                                         ii.     (1) (43, top) absence of word “expressly” implies that there are implied powers
                                        iii.    (2) Constitution limits gov’t’s ability to grant titles of nobility
II.            Theory and Structure of the Gov’t established by the Constitution
                                          i.    Looks at structure of gov’t the Constitution creates.
1.     E.g. separation of powers, checks & balances, federalism
III.            Prudential [Consequential] Argument: What are the likely consequences?
                                          i.    E.g. Marshall’s arg. that if interpreted narrowly, const. won’t allow general gov’t enough powers to govern effectively.
                                         ii.    Is this going to work? What are the ramifications?
                                        iii.    Two types:
1.     Broader category: whether interpretation would have good consequences or bad
2.     Narrower category – whether having this particular decisionmaker decide the question in a particular way would have good consequences or bad.
IV.           Appeals to History
                                          i.    E.g. Marshall’s arg. that framers obviously meant it to allow gov’t to employ those means necessary to rule as best as possible. (note: no specific references to framers’ specific comments while framing constitution; doesn’t mention the framers’ consideration of adding a power to incorporate entities, which would go against Marshall’s argument).
V.            Precedent – Not only case law precedents, but precedents set by Congress, the Exec., history, etc.
VI.           National Ethos (Narrative)
                                          i.    Who we are as a nation, our morals, values, ideals, etc. “The American Story.”
Uncertainties of Meaning  (59)
-The language of a provision in a written document is often susceptible of more than one meaning. It can be ambiguous, vague, or figurative.
1.     Ambiguity
a.     When language admits of two or more rather different meanings
b.    General understanding of purpose usually resolves ambiguity
c.     E.g. “natural born citizen.” W/o context showing purpose, could be very confusing.
2.     Vagueness
a.     Marginal indefiniteness in the meaning and application of words (e.g. “middle-aged”)
b.    The indeterminacy is due to an aspect of the meaning of the term rather than to the current state of our knowledge
c.     Many things are defined by the confluence of a number of attributes and one can never fully describe the combinations of attributes necessary or sufficient for proper application of the noun to particular things. (e.g. “commerce”)
3.     Nonliteral Usage
a.     The question of how literally or figuratively to read a term, or in other words, how narrowly or broadly to define the concept that the term represents.
b.    E.g. “…by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Only the power to copyright what’s written? Or does it extend to paintings, sculptures, computer programs, etc.?
c.     Proper scope of the concept represented by a term depends on the context in which, and the purpose for which, the term is used.
d.    **Indeterminacy is inherent, BUT language’s indeterminacy is not unlimited.
“Inherent” versus “Implied” Powers  (62)
1.     Inherent powers = powers “necessary concomitants of nationality”;
a.     E.g. power to design/create national flag – goes along with being a country
b.    E.g. power of deportation or to restrict importation of slaves; Ct. confronts these cases in Chae Chan Ping v. U.S. and United States v. Curtiss-Wright Export Co., and says nation has to have the power to do this)
c.     *note: powers of the U.S. in relation to wider international system.
2.     implied powers linked to text – serve as means to the ends spelled out (E.g. McCulloch)
Three Different Kinds of Constitutional Questions
A.      “Powers” questions
                                  i.    is some action unconstitutional b/c it’s outside of the powers the fed. gov’t?
1.     e.g. McCulloch
B.      “Rights” questions
                                  i.    whether fed. gov’t infringes on individuals’ rights in acting in a given way.
1.     e.g. second holding in Dred Scott: property rights v. freedom
C.      “Separation of Powers” questions
                                  i.    Fed. gov’t as a whole has a power to do this, but question as to whether this branch of the gov’t necessarily has power to do this unilaterally
1.     E.g. Prize cases
Interpreting the Constitution: Case I: the first Bank of the United States
      I.    Did the Constitution grant Congress the power to set up such a bank?
a.     Madison et al: “No, Congress does not have power to set up bank”
                                      i.    Const. is grant of particular enumerated powers only. (Art. I §8) and all others excluded.
                                    ii.    “Necessary and Proper” clause
1.     = necessary: only that required so as not to render enumerated powers nugatory
2.     cannot be interpreted to give unlimited power to Congress, else the Constitution would be read to give unlimited pwr to legislate on everything under the sun. If you swallow this, you swallow everything, destroying concept of enumerated powers
a.     Intratextual: compared to provisions of much more incident powers expressed rather than implied, it follows that a larger stretch such as this would need to be expressed. Also, Bill of Rights excluded additional pwrs
                                   iii.    Rules of Interpretation:
1.     An interpretation that destroys the very characteristic of the gov’t cannot be just.
2.     If plain meaning appears, go w/ it. If not, determine based on consequences.
3.     Look at the intent/purpose of the authors, if reasonable evidence is available, (e.g. contemporary and contemporaneous expositions)
4.     Look at both how closely it relates to an express power, and its degree of importance
b.    Hamilton’s argument for the bank:
                                      i.    Frames the question as “w

ty to decline to execute when a statute seems very much to conflict w/ Constitution, notwithstanding his own beliefs.
–          Pres. shouldn’t refuse to enforce unless he believes U.S. Sup. Ct. will agree
The Louisiana Purchase  (1803)
–          Most important political & constitutional event between ratification of Constitution and outbreak of civil war in 1861
–          Jefferson sought constitutional amendments granting power to purchase the territory, but time became of the essence and Jefferson went forward with the deal without constitutionally-granted power to do so. Exigency trumped constitutional fidelity, even for Jefferson. (65-66)
–          “The laws of necessity, self-preservation, of saving our country when in danger, are of higher obligation.”
–          Jefferson’s decision vindicated by history in part b/c expansion westward became our national ethos and national gov’t’s power needed to be extended to govern the expanding territory.
Judicial Review: The 1803 Cases (The role of the Judiciary vis å vis Congress)
Historical Backdrop:
·         Rise of political parties: Federalists (pro-nat’l bank) v. Democratic-Republicans (Jefferson; nat’l power ltd.)
·         Debacle of 1800 election results: tie for Pres between Jefferson and his proposed VP, Burr; Federalists have power in lameduck House which has to decide outcome; opposes Jefferson (perceive as dangerous radical) and major problem w/ fact that slaves count 3/5 but can’t vote. But, Jefferson comes out as winner anyway.
·         Federalists stack judiciary & pass Judiciary Act of 1801 to keep their judges in; D-Rs repeal upon taking office
·         1803 cases determine whether Court would directly challenge Exec. + Leg. authority.
I.              Stuart v. Laird                    (Elimination of the Intermediate Appellate Judiciary)
A.      Ct: The new Congress’s repeal of the previous (Federalist party) Congress’ Judiciary Act abolishes the newly set-up circuit courts and restores the traditional law whereby Sup. Ct. justices “ride circuit.” This restoration of the old law is not unconstitutional.
                                                             1.      Ct’s arg is based mainly on precedent: “practice and acquiescence under [the old judiciary law] for a number of years . . . afford an irresistible answer.”
                                                             2.      By this logic, any long-tolerated practice could be justified solely based on its longevity.
B.      Exam Note: Laird signifies the Sup. Ct’s complete capitulation to the new political reality of Republican control (Marbury does the same)
C.      Internal v. External perspective:
                                                             1.      Internally: asking whether the results cts. reach make sense based on the logic of the legal args. the judges offer
                                                             2.      Externally: attempting to explain the results in terms of historical, political, social, economic or other factors.
a.     Arguably, conflicting b/c external undermines politics / law distinction
b.    Arguably symbiotic b/c external is necessary to the rule of law.
D.      Court vis a vis other branches: Congress and Exec. can push court around. Ct. allows Congress to disband circuit court seats and 1802 judicial sessions.