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

1.      McCulloch v. Maryland, 1819, pg. 38 Justice Marshall
a.       Maryland proposes a tax on the bankàthe bank refuses to pay and says that Maryland has no right to tax the bank à does the constitution prohibit Maryland from taxing the bank? àalso if Congress passed a law forbidding Maryland from taxing the bank then Maryland would have to go along with that
b.      This case is a canonical example of the courts willingness to discern implied powers of Congress beyond those specified in the text
c.       Who has soverign power?
                                                  i.      The people of each state: organized in some meaningful way state by state
                                                ii.      The state governments
                                              iii.      The people of an udifferentiated whole called the US
1.      Marshall thinks that the govt was created by the people and the govt’s powers were granted by the people and so they should be exercised directly on them and for their benefit
2.      States have power over their own state institutions, and they should NOT enforce their rules on the people of other states
d.      Marshall says that but-for the necessary clause Congress would not have the power to est a corporationàbut then he inquires in favor of Maryland that the est of a corporation is maybe NOT necessary
e.       Clause should be viewed as a means to an endàany means which tended directly to the execution of the constitutional powers of the govt were in themselves constitutionalàthe way that Maryland wants the statute to be interpreted would annhilate the govt’s right to select its meansà
                                                  i.      The clause is placed among the powers of Congress, NOT among its limitations
                                                ii.      The terms are to enlarge NOT to diminish the powers vested in the govt
f.       Marshall makes a structural argument he does not make a textual argument bc there is no text from which he can refer toà nowhere is there any text that talks about Maryland’s ability to tax the bank
g.      Marshall says that Maryland cannot tax the bankà bc the national govt cannot tolerate any state govt having any power or control over it
h.      Argument: the states are given the right to tax and they can tax whatever is in their stateàthe national bank benefits all and should only be taxed by those who control allà NOT a state govtàthe
i.        The case was actually decided when the bill was passed in congress to establish the first bank
j.        Marshall thinks that the constitution was enacted by the peopleàwhy does it make a difference whether or not the constitution was enacted by the states or the people? If it was enacted by the statesà then the states have the power to make new rules or disregard old ones without answering to anyone.
k.      Marshall: that the constitution should be filled in
l.        The anti-Madison prevails:
m.    Where Marshall is right: The powers of govt on some level have got to imply the ordinary means of execution whether they are expressly stated in the constitution or notàit has got to be implied that if the govt has the power to collect taxes then they must have the implied power to move the money collected from taxes
n.      Where Marshall might be wrong: Govt has some implied powersà then the power to est a bank is an implied power and is no different than the implied power of the govt to move money collected from taxesàthis is the point that is in controversy
o.      The meaning of the word necessary:
                                                  i.      Marshall is responding to Madisons argument
                                                ii.      Madison’s argument is not right bc:
                                              iii.      Necessary can be used in different waysàsometimes necessary can be used to mean convenientà in this case Marshall thinks that Congress used the term necessary to mean convenient à what is conveniently needed in order for Congress to carry out their legislative duties
                                              iv.      Does Marshall have an answer to the line drawing question? àMarshall thinks that the question should be answered but it is NOT something for the court to doà it is for Congress to decide where the line should be drawnàfor the court to decide the line drawing question would be for the court to step outside of its boundaries and intrude upon the responsibilities of Congress to draw the lineàCongress should draw the line and the courts should follow whatever they decide.
p.      Key issue in this case: where to draw the lineàthe differences in degree between moving money and est a bankàshould a line be drawn or not?
q.      Jeffersonians were against the decision reached in this courtà less liberty after Mcculloch than we did beforeàsafer from intrusions on our liberty with got that govern small groups of people vs. large groups of people, but this is not necessarily the case
r.        Marshall’s rejection that the federal govt should have power over the states
s.       Jefferson suggests: Virginia Resolution: the people of 2/3 of the states should be able to overturn bad anti-libertarian supreme court decisions
t.        Marshall makes note that bc this is the constitution that we are making a decision about we should read this as we would read a constitutionàwith that eyeàwhat it means to be a constitution and what it is for, that a constitution is supposed to last for a long timeàthe rules for reading a constitution are different, the tools that we must use are differentà6 approaches for reading and interpreting the constitution, Marshall uses all 6 of these in this case
u.      Whether or not Maryland has the right to tax the bank is not a textual argumentànowhere does the text say anything about this
v.      Suppose this case had never been decidedàCongress passes a statute that says states can’t tax a bankàthis statute would be subject to the court whether or not it is constitutionalàis it an infringement on the states sovereign right to taxàbut this would be a binding law bc the laws that Congress make are the Supreme Law of the land and bind the statesàif Congress had passed the statute before this case had been decided then there would be no question

                                                ii.      who gets to decide whether or not the stateute is constituionalàaccording to this case the court gets to decideàthere could be a different rule, could be that congress has the final word
                                              iii.      the real Q isn’t is congress allowed to pass a statute that violates the constitution (the answer to that is no) àthe question is who gets to decide whether or not a statute violates the constituionàthe answer is the courtàis this a good way to organize the country or a bad way?
1.      good: we don’t trust congress, they are too political and the supreme court is detached and doesn’t have to stand for re-election, they will follow the way of the scholar and not be political
2.      bad: bc court is detached are they responsive to the will of the people of the present day, or the day that they were appointed
p.      Article III limits the jurisdiction of the courtàissuing a writ of mandamus falls outside of thisàconflictàdid Congress mean that the Supreme Ct has original jurisdiction over issuing writs of mandamus or do they only have appellate jurisdiction over this
                                                  i.      Is this against the text of the actual constitution or against the “spirit of the constitution?”
                                                ii.      I have 2 ways of reading the statuteàone that goes along with the constituion and one that is against itàI should read the statute in the way that goes along with the constitutionàthis is NOT what the court does in this caseàclearly the statute goes against the constitutionànow have the question of judicial review of federal statutes
q.      Does Supreme Court have the power to rule that Federal Statutes are unconstitutional? àMarshall works his way to make this the issue of the case.
r.       Courts get to say what the constitution means, the court is the final authority on what the constitiuion means. If the legislature writes a law that says is consistent with the constituion and the court says no its notàthe court is right
s.       The bank is constituional & Maryland is prohibited from placing a tax on the bank
4.      Fletcher v. Peck, 1810, pg. 140
a.      A majority of the Georgia legislature was bribed into selling the land at a very low priceàthe records of the fraudulent transaction were destroyed by burning
The purchasers of the land sold the land to 3rd partiesàthey were bona