I. History and theory of the Constitution
A. Constitutional Text and History
What is a constitution?
“The fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise”- Black’s Law Dictionary
special kind of law that constitutes the nation: constitution is not a necessity for a government or a democratic govt.
more fundamental than ordinary types of law
it’s fundamental b/c
change the constitution with an amendment proposed by 2/3 of two houses but to change a law congress just writes a different law that only takes majority vote
more stable than ordinary law
need governments to make people better off, markets depend governments (property, contracts), need government for public goods that markets are not very good at creating and national defense
concepts of constitution:
democratic accountability- citizens choose government officials
Separation of powers- do not give all of the power to any person or group of people- divide powers between 3 branches of government
Federalism- split between federal and state government
What’s constitutional law?
the study of constitutional law is largely the study of how the constitution goes about creating a government that has enough power to accomplish the goals that the citizens set for it, while at the same time limiting (to an acceptable level) the government’s power to do harm through mechanisms including democratic accountability, separation of powers, and federalism
How the constitution came to be
history is important to understand where things came from and understand how things are now
Apr. 1775- first battles of Revolutionary war
July 4, 1776- Continental Congress adopts Declaration of Independence
Mar. 1, 1781- Articles of Confederation ratified by the states: unity and friendship between the states; FAILED
continental congress adopted articles
Parties of article of confederation where the states, not the individual citizens
contrast with constitution- “We the People of the United States..”
No Executive- no president
No Judiciary- some maritime courts but no standing judiciary
Congress did not have power to regulate commerce among the states- the states were able to make their own tariffs and prevent export and importation of goods. Interference with economic development
Congress did not have taxation power- no MONEY to run government
Sept. 1783- Revolutionary War ends with Treaty of Paris
May-Sept. 1787- Philadelphia Convention writes Constitution
We the People- not the states
All states sent delegates (55 total) except R.I.. meetings were held in secret. The reason we know what happened because James Madison took good notes
VA plan- a total rewrite of Articles- proposed strong central government. Legislature would be allowed to legislate in all cases/negative all laws passed by the several states.
NJ plan- tweak/amend the Articles
Divisions among the states- Each state had one vote
to make it effective needed 9 out of the 13 states to ratify it
Representation of the States in the new Congress—Large states wanted proportional; Small states wanted equal rep. à Connecticut Compromise created Bicameralism
Connecticut Compromise- proportional representation in the House and equal representation in the Senate
North and South: Commercial Interest—North (wanted to regulate commerce) & South (feared slave trade elimination)
Congress can regulate commerce
Instead of Congress to legislate anywhere, we have a federal government of enumerated power- only those powers assigned to it by the constitution
Protection of Individual rights: Federalists were not in favor of a bill of Rights ((1) thought government did not have power to be able to take away the rights—(2) bad idea to enumerate certain rights because that means they do not have other rights)
during ratification process- the people who were opposed- the federalist reassured them that they would add bill of rights as soon as possible (took affect in 1791)
1787-89- Federalist Papers published
often cited in court opinions
written by James Madison
when read federalist papers- it is not political theory, advocacy documents written by lawyers that try to convenience ppl. to vote a certain way
June 21, 1788- ninth state (NH) ratifies the Constitution, making it effective
Dec. 1791- Bill of Rights ratified
Federalists v. Anti-Federalists
ANTI: did not like the idea of strong national government- thought govt. would be less accountable to the people. Critical of absence of bill of rights. Thought you could not have an effective government over a long geographical extend
FED: Welcomed heterogencity; republicanism; understanding that self-interest would deprive political actors; Factions were corruption, a bad thing and would be fed by a direct democracy; Checks and balances were such against factionalism and self-interested representation. Madison wanted REP democracy not direct
Problems with Direct Democracy- Plato and Aristotle said problems b/c (1) difficult with large population, (2) devalues minority views (people as a whole make decisions without going through elected representatives); (3) hard for citizens to have all the information; (4) people swayed by demigods (brought up in federalist papers)
Legislation via Representation
Separation of Powers (Horizontal Division of Govt.) & checks and balances
Federalism (Vertical Division of govt.)—
Fed. trumps State: E.g. supremacy clause, Dormant Commerce Clause—power of fed. government to restrict state govt. powers
State trumps Fed: E.g. because of enumerated nature of powers—states get everything not in the Constitution
Hierarchy of sources of law
The People (i.e. ¾ of the states)
Federal Statues and Common Law
State statutes and Common Law
B. Factions- Federalist No. 10:
C. Checks and Balances- Federalist No. 51:
Summary of top 10 things to take away from class-:
The study of constitutional law is largely the study of how the Constitution goes about creating a government that has enough power to accomplish the goals that the citizens set for it, while at the same time limiting (to an acceptable level) the government’s power to do wrong.
The Constitution was created as a reaction to the manifest failures of the Articles of Confederation.
the Articles failed because they did not give the federal government enough power: the states were too jealous of their own sovereignty to give up much to the new federal government
e.g., there was no executive
e.g., Congress did not have the power to regulate interstate commerce
so in interpreting the Constitution, it is sometimes useful to refer to the situation as it existed under the Articles
e.g., the Court does this explicitly in M’Culloch v. Maryland:
it notes the contrast between the Articles’ limitation of the delegation of power to the federal government, and the corresponding provision in the Constitution; viz.,
the Articles say that any power not “expressly” delegated to the United States is retained by the states
whereas the 10th Amd. says any power that is no delegated to the United States is retained by the states
thus indicating that the federal government created by the Constitution has more power than that created by the articles
Many provisions of the Constitution resulted from political compromise.
so in interpreting the Constitution we should not be surprised if elements of it do not conform to the principles that we discern underlying it
There are some broad principles underlying the Constitution that courts refer to in interpreting it.
e.g., a primary bulwark against tyrannical expansion of power by government officials or agencies is separation of powers
this idea is elucidated by Madison in Federalist 51: we know that it’s human nature for people to try to accumulate power, so we design government so that officials in one agency of government will have an incentive and ability to oppose usurpations of power by one in another branch
we will see this principle applied by the courts in deciding separation of powers issues
e.g., the principle of democratic accountability
we saw this in M’Culloch v. Maryland: a state taxing a federal entity would violate the principle of restraining government officials through democratic accountability
this principle gives rise to an ongoing controversy about the proper role of the courts vis-à-vis the political branches, aka the countermajoritarian difficulty: courts are often faced with the need to decide whether an issue is for the courts, or should be left to the political branches
but since the Constitution is crowded with countermajoritarian aspects, we should not insist that all outcomes implement the principle of majoritarianism
The allocation of powers among the branches of the federal government is subject to shifts based on political responses of the various actors.
Marbury v. Madison gives us a first look at this
the courts acquired the power of judicial review because Marshall cleverly asserted it in a case where his political opponents won
and judicial review continues to exist because the other branches acquiesce in it: if the president started enforcing laws that the courts had declared unconstitutional, or Congress kept reenacting such laws, the balance of powers would be different
Similarly, Martin v. Hunter’s Lessee and Cooper v. Aaron illustrate the delicate balance between the federal and state governments.
in Martin, a state supreme court told the Supreme Court that you can’t overrule us, but the Supreme Court said yes we can, and state courts have since acquiesced in that view
in Cooper, much more recently, a state legislature told the Supreme Court that it has just as much authority to interpret the Constitution as the Court does, but the Court said no, and it stuck
in both situations, if the states had decided not to acquiesce, the balance between federal and state power might be very different
Marbury v. Madison also illustrates that a judge who is a skillful writer can make it appear that a result is inevitable, when in fact there are a lot of hidden assumptions and debatable determinations that go into making a case come out as it does.
so we should always approach constitutional cases very critically
There are a variety of interpretive approaches, and interpretive techniques, that the courts use in constitutional interpretation.
there is no silver-bullet approach that can be used in a noncontroversial way
e.g., intent of the framers is problematic: e.g. whose intent counts, and how do we ascertain it
a purely textual approach is impossible: the courts have to l
ity with respect to matters within its sphere à Court-declare law unconstitutional when the law is presented to the court for enforcement; Executive- can decline to enforce law he believes to be uncost. even if Court declared it as constitutional. Illustration of Checks and Balances
Martin v. Hunter’s Lesse- 1816-(Federalism)- Federal Judicial Review of State Courts- establishes Appellate Jurisdiction to review state court decisions based on fed. law
Facts: VA Supreme Ct. refused to comply with the US Sup. Ct. order of reversal of the state court decision to refuse to abide by the treaties. VA Sup. Ct. appealed alleging the US Sup. Ct. had no appellate jurisdiction over state court decisions
Issue: Whether §25 of Judiciary Act is constitutional?
Holding/Rule: Judiciary Act of 1789, §25 is constitutional, it gives Sup. Ct. jurisdiction to review a decision by the highest court of a state that
holds a federal law invalid
upholds a state law against federal challenge, or
decides against a claim predicated on federal law
– Judiciary act is giving fed. court this power
Such Power is necessary for uniformity of decisions throughout the whole US, upon all subjects within the purview of the Const.
appellate review power is based on the case and not the court so it doesn’t matter which court the issue of fed. law arises, just matters if it is right kind of case
Michigan v. Long- Rule: The Fed. court does not have jurisdiction if the state judgment is based on independent state ground- even if the state court interpreted both state and fed. law but the outcome is justified by state law – same result for Bush v. Gore
Ex Parta McCardle (Congress’s Power to deny Judicial Review- Exception Clause)
Facts: there was a statute in 1867 that gave Sup. Ct. jurisdiction to review writ of habeas corpus and this case is about habeas corpus but then Congress repealed Sup. power to this
Issue: Can Congress deprive Sup. Ct Jurisdiction to view this?
Holding/Rule: Under Const. Exception Clause, Congress has power to deprive Supreme Court. judicial review (appellate jurisdiction, not original jurisdiction)
Art III., sec. 2, cls. 2 Exception Clause- “In all other cases before mentioned, the supreme court shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”
Scope of this case is controversial: Congress can strip judicial Jurisdiction, but can they strip of all appellate power?
Martin- Judicial power extends to any case involving a fed. issue- all the judicial power has to be invested somewhere and if Congress takes away Sup. Ct. power it has to be given back somewhere elseà one view of the authority of Congress to limit Sup. Ct. Jurisdiction
Later cases: that allow Congress to take away judicial power of the US Sup. Ct.
United States v. Klien- rule: any jurisdictional limitation must be neutral Congress cannot take away Sup. Ct. jurisdiction in a particular kind of case- When Congress attempts to control the Court’s jurisdiction in a non-neutral way, in order to bring about a particular outcome, it is acting like a court rather than like a legislature.-
III. The Necessary and Proper Clause
Necessary and Proper Cl. Art. I §8- grants Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the U.S.”
M’Culloch v. Maryland- defines scope of federal legislative power as it relates to states (not judiciary)
Facts: Maryland state law imposed tax on all banks in Maryland not charted by the state. An act of Congress established a US Bank in Maryland. the cashier (M’Culloch) issued notes without complying with Maryland’s law
Held for Issue #1: Even though the constitution does not expressly grant Congress the power to incorporate a bank, it can do so under the doctrine of Implied Powers- “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 consistent with the letter and spirit of the constitution, are constitutional” 
as long as the means are plainly adapted to the end that is a constitutionally specified object, the means is also constitutional (assuming that it does not violate any specific prohibition, like Bill of Rights)