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

· Argument is straightforward on level of federal separation of powers. For the government to do something there is always potential for it to do bad things. The separation of powers is there to make it harder for gov’t to do things. Congress cannot pass a law by itself. Executive branch shouldn’t sign any “bad laws.”
· Both state and federal governments are subject to constitutions in order to protect against tyranny.
· Does federalism add to this protection? If we are concerned about limiting the probability that individuals will be regulated, federalism is not necessarily a good instrument for increasing the difficulty of passing regulations. When there are two governments, they are twice as likely to regulate.
· Local governments may be better suited to regulate because the legislators have more intimate knowledge of the local situation and local concerns. Furthermore, citizens may be able to better influence their local legislative representatives. There is also a benefit from having states be able to conduct isolated experiments. Federalism also allows people to be most happy with their governments because people can choose to live in states where they agree with the laws.
5 Methods of Constitutional Interpretation
1. Text – What do the words of the document actually say?
2. More generally understanding of theory and structure of government the constitution establishes.
3. Prudential approach – What will work best? “We should interpret it this way b/c it will yield a good result.”
4. Legislative history – What was proposed? What were drafters thinking?
5. Precedent – What have other courts said or done in the past?
McCulloch v. Maryland (1819), p. 17 – Judicial Examination of Congress’ Authority to Create a Bank
· S Ct held that Maryland could not tax notes issued by the Bank of the United States. Federal tax immunity exists whenever the state seeks to tax the United States or an agency or instrumentality closely related to it so the two cannot be viewed as separate entities.
· The Constitution empowers Congress to borrow, coin money and regulate the value, and to tax collectively these inherently include the power to hold that money and move it. A bank of the US is a means by which to carry out that power. Court read the “necessary and proper” clause as broad enough to encompass power to create a bank. The constitution says nothing about whether or not Maryland can tax the bank of the US.
· Maryland is not sovereign over the bank. Taxation is a power which comes from sovereignty. Maryland can only tax that which it has sovereignty over.
· Marshall’s opinion is essentially a combination of a prudential approach and general understanding approach of constitutional interpretation.
Jackson Veto Message, July 10th 1832
The bank charter was set to expire in 1836. Jackson won the 1832 presidential election campaigning to eliminate the bank. He vetoed the act passed by congress authorizing the renewal of the national bank’s charter.
· Jackson’s veto message argued that the creation of the national bank was unconstitutional.
· On what grounds was the bank unconstitutional?
o The by-laws of the bank allowed for foreigners to invest in the bank.
§ This is bad on national security grounds b/c the bank may be controlled by foreign investors.
§ The constitution gave states the power to create laws regarding real property. Most states had rules stating that foreigners could not own real property. The bank owned real property and if foreigners could own shares of the bank, they could indirectly own real property.
o The bank exercises the power to regulate currency even though it is not a public institution. He argues that it should by public rather than private, and responsive to voters.
· Hasn’t the S Ct already decided this question? Why does Jackson reach the opposite conclusion?
o Marshall’s decision in the S Ct is just what the S Ct thinks, and that it can’t control what he thinks. As the president, he must make a decision based on his opinion on what is constitutional, in exercising his veto power.
o Both Congress and the President also have the power to determine whether a law is constitutional. They do not need to defer to the S Ct.
What powers does each branch of government have?
Federal power is actually quite limited. Courts will refuse to allow the federal government to undertake an enumerated power, if the court believed the purpose of the undertaking was to regulate a matter which infringed on state’s rights. Hammer & Bailey.
Types of Governmental Power
· Congress powers are not strictly limited to those which are enumerated in the constitution.
· Ex. In 1794 Congress passed a statute changing what the US flag looked like.
· Even though it was not explicitly listed in the constitution, nobody questioned congress’s constitutional authority to pass such a statute.
· Controlling the design of the US flag is thought to be an “inherent” power.
· Government is essentially operating with a combination of “enumerated,” “inherent,” and “implied” power.
o Enumerated – Listed in constitution.
o Inherent – Ex. Power to change flag.
o Implied – Ex. Power to preserve independence.
The Chinese Exclusion Case, US S Ct (1889), p.40 – “Inherent” congressional power
· The Chinese Exclusion Act of 1882 provided that (1) no more people could emigrate to the US from China, (2) Chinese can’t become citizens, and (3) Chinese people already in the US could be allowed to leave the country and return.
· Holding – The US as a sovereign necessarily has the power to exclude people from its borders in order to preserve its independence and security.
· The court views this case as an issue of national security.
Where does court get its authority?
· The Judicial Act of 1789 authorized the S Ct to review the final judgments of the state S Ct in 3 situations.
· Constitution gives original jurisdiction to the following cases:
o All cases arising under federal law.
o Appellate jurisdiction in all of the above cases (arising under federal law).
o Under the constitution, decisions of state courts are not within the appellate jurisdiction of the S Ct.
· Why didn’t justices Story in Martin v. Hunter’s Lessee, and Marshall in Cohen v. Virginia, buy the argument made by the state of VA that decisions of state courts cannot be constitutionally within the appellate jurisdiction based on the idea that states are coequal sovereigns?
o States are not coequal sovereigns.
o Federal law is supreme.
o If VA’s argument was accepted, states could invalidate federal law.
o If Congress is acting within enumerated powers then state can’t create laws repugnant to federal law.
o Federal supremacy prevents state nullification of federal law.
Marbury v. Madison, US S Ct (1803), page 82 – Judicial Review of Legislation
Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had appointed him. Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution.
Held that Madison has a non-discretionary legal obligation to deliver the commission. If the S Ct decides that a statute conflicts with the constitution they must strike that statute down because the constitution is a higher law which binds the branches of government.

· Does the S Ct have the authority to tell the president that he must allow the commission to be delivered?
· This is Madison’s separation of powers argument – Acts of the president are not within the realm of authority of the S Ct. Madison did not deliver the commission solely because Jefferson ordered him not to.
· The catch is that whenever there is a statute that is said to violate the constitution it is never said to be unconstitutional by everyone. Clearly the legislature believes the statute to be constitutional; otherwise it would not have passed it in the first place. If congress thinks that it is constitutional, and the S Ct thinks that it isn’t, who should win?
o Nothing in the constitution gives the S Ct the right to veto statutes.
o If legislature was allowed to decide what is constitutional it would be the guardian of its own power.
o There also is no pressure on judicial branch to cut constitutional corners b/c justices are life tenured.
Fletcher v. Peck, p. 104

S cannot be reconciled with the DP clause.
· Effect on Politics – S Ct held that congress had no power to declare a territory a free territory, and the inhabitants have no power to declare a territory free or not. Essentially every state is a slave state.
· What is it about the prohibition of slavery that strikes Taney as an unreasonable deprivation of property? If a person has a right to own property in the state which he resides, a prohibition on where that property can be brought is an arbitrary infringement on that person’s right to own property. Two counterarguments:
o The court upheld contraband laws. Ex. You cannot bring liquor into the state. If you did it could be taken from you. This would mean that slaves are different than other property.
o If the slave owner wants to avoid his deprivation, he can remain in the same state.
Second guessing the Constitution as a pro-slavery document
Frederick Douglass, p. 207 – How do you decide what a constitution means?
· Douglass says it is not guessing what the framers had it mind; who cares what they had in mind, anything the framers wanted to be binding, they put down in words. The words used should not be supplemented with mind reading.
· Dredd Scott was fundamentally misguided. The people ratified the words the framers wrote, not the intentions of the framers.
· Douglass concedes that this is a situation where the words of the text do not answer the question at hand. There are two possible interpretations. He argues that the court should choose the morally proper interpretation, which is that slavery is unconstitutional.
Lincoln-Douglass Debates, page 211
President Lincoln – Resisting the Dredd Scott decision.

In his capacity as a legislator, he is not going to assume that the S Ct was right.
Lincoln would like to push for the appointment of justices who would overrule Dredd Scott.

Stephen Douglas ­– Response to President Lincoln

People would lose confidence in the S Ct justices if they were appointed for the purpose of overruling Dredd Scott. Douglas is taking the position that the S Ct justices are not political, which is their source of trust from the people.

Prof. says this argument may be wrong.

Douglass believes that constitutional questions have single right answers, which can be reached by justices who are dispassionate, unbiased decision makers.

President’s Power to preserve the Union
Senator Benjamin’s Argument – The Case for Secession, page 215
First, it is part of human rights to have the ability to withdraw from a government which is not working out with their best interests. As happened when the colonies withdrew from Great Britain.

Second, the Constitution was an agreement (treaty or compact). As a means of self defense, if the North is violating that agreement, this gives rise to the South’s right to withdraw from the agreement. He continues to assert that the South ultimately has the right to be the judge of whether or not the agreement is being broken.

Was the agreement being broken by the North? Or, was the South just disappointed about how the agreement was actually working out?
Prize Cases, (1863), p. 220 – Presidential authority to act w/o congressional recognition of state of war
· Issue – Does the President have power to institute the blockade, in the absence of Congress declaring war?
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