US Constitution

• year of Cato Letter #4

  1787
• year of Federalist 70-73 (selections)

  no years stated
• year of Jefferson's 'Opinion on the Constitutionality of the Bank'

  1791
• year of McCulloch v Maryland

  1819
• year of US v EC Knight

  1895
• year of Wickard v Fliburn


  1942
• year of US v Lopez

  1995
• year of South Dakota v Dole

  1987
• Cato Letter #4

  4 years is too long for presidency; will try to stay in office longer

  having one leader is monarchial

  president isn't even chosen by the people
• Federalist 70-73

  executive branch is republican

  divided power is diminished power; lacks accountability; conceals faults and responsibility

  danger for differed opinion

  multiple makes it harder to detect fault and place blame

  4 years is long enough but not too long- less attached to an uncertain title
• Jefferson's 'Opinion on the Constitutionality of the Bank'

  Congress does not have the constitutional authority to create a bank

  this would be convenient but IT IS NOT A NECESSITY

  this would only benefit the general welfare

  1. does not pay debts and no tax is collected
  2. not borrowing money
  3. not regulating commerce
• McCulloch v Maryland

  Chief Justice Marshall

  maryland put a tax on all non-maryland banks, McCulloch refused to pay and was sued my maryland

  yes, congress has the power to make a bank, even if it is not enumerated,. they decided it was necessary

  no, maryland cannot tax lay taxes on imports and exports
• Wickard v Filburn

  Mr. Justice Jackson

  limitations on average used for wheat growth- Filburn exceeded this planning to use the extra for his own animals

  argues that congress has no control over local affairs and this is indirect to the overall commerce of the US

  it is indirect until everyone starts doing it, then it is

  if you need more wheat buy it from the market

  does not matter if this is production, marketing, or consumption
• what are some of the ways we might be able to view US v Lopez given by Chief Justice Rehnquist

  gun in a school zone -> violence ->insurance cost goes to population/crime stops travel to 'unsafe' areas -> stops education process-> less productive citizens-> reduced national economic well being-> affects interstate commerce
• what are some of the ways we might be able to view US v Lopez given by Justice Breyer, Stevens, Souter, and Ginsburg

  power to regulate commerce-> decide if interstate activity will affect commerce (will not consider one instance with a gun but ALL instances with guns on school zones)-> judge connection between regulated activity and commerce
• Categorical Commerce

  a definition of commerce that defines commerce as any activity that affects interstate commerce
• Empirical Commerce

  a definition of commerce that defines commerce as anything that COULD affect interstate commerce (either interstate commerce activity OR inactivity)
• which branch is article 1 addressing

  legislative
• what branch is article 2 addressing


  executive
• article 1 vesting clause

  "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"
• article 2 vesting clause

  "The executive Power shall be vested in a President of the United States of America. He shall hold his office during Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows"
• whats the difference in the two vesting clauses (article 1 v 2)

  the power herein granted versus the power shall be vested

  ALSO many 'powers' versus one 'power'
• article 1 section 8 (#1)

  1. The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
• article 1 section 8 (#2)

  2. to borrow money on the credit of the United States
• article 1 section 8 (#3)

  3. to regulate commerce with foreign nations, among the several states, and with the Indian tribes
• article 1 section 8 (#18)

  18. 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 United States, or in any department or officer thereof.
• what is the necessary and proper clause?

  To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested bythis Constitution in the government of the United States, or in any department or officer thereof.
• whats the national supremacy clause

  This Constitution, and the Laws of the United States which shall bemade in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding
• what is the question in Wickard v Filburn

  did congress have the authority under the commerce clause to regulate production of what that would never make it into interstate markets?
• wickard v filburn- justice jackson opinion

  congress did have the authority, even if this wheat was for personal production, because of the "cumulative affect" it would have on the wheat market if everyone grew it for their own personal consumption. this would mess up congress' attempts to level out the wheat market
• doctrine of wickard v filburn

  aggregate effects
• what is the question for US v Lopez

  was congress' commercial regulatory authority under the constitution extensive enough to regulate guns in school zones?
• opinion of congress in US v Lopez

  'rational basis' for congress to think that preventing violence in schools would have a substantial impact no interstate commerce for reasons of travel, insurance and national productivity
• Chief Justice Rehnquist opinion in US v Lopez

  under these rationals congress could control all aspects of life (no power reserved for the states anymore)

  there is a need for a limit on the commerical regulatory authority of congress

  the gun free school zone act lacks a limiting principle and therefore cannot be in congress' delegated powers
• constitutional limitations on conditional spending is

  the use of congress' power "to provide for the... general welfare" to place economic incentives/ pressures on state and local governments to adopt policies and programs that Congress may not be permitted by the constitution to adopt directly
• unitary executive

  that congress cannot limit the president's control of the executive branch because the constitution set up a hierarchical system whereby the president has the most power
• compact theory

  idea that the US was formed through an agreement (compact) between the state governments.

  in states the supremacy has always been with the people, the people are distinct individuals as opposed to one whole being, and that the sates have the right to ignore unconstitutional legislation
• nationalist theory

  division and sharing of power between the national and state governments
• strict construction

  requires a judge to apply the text only as it is written. judges in this view avoid drawing inferences from a statute or constitution and focus only on the text itself
• aggregate effects doctrine

  congress' power to view any interstate commerce by its effect on the whole and consider the total impact of such activity on interstate commerce. permits extension of teh regulation of interstate commerce into any action which affects interstate commerce only when aggregated with other actions