Con Law

• Constitution


  • Article I- Legislative
  • Article II- Executive
  • Article III: Judicial
  • Article IV: Full Faith and Credit
  • Article V: Congress
  • Article VI: Supremacy Clause
• Functions of the Constitution

  • Creates national government
  • Establishes Separation of Power
  • Protects Individual Liberties
• Federalism


  Term used to describe the vertical division of authority
• Marshall's Methods of Constitutional Interpretation

  • Appeals to text
  • Constitutional structure
  • Prudence (or consequences)
  • History
  • Precedent
  • Nation (narrative) ethos
• Who Interprets the Constitution?

  • The judiciary (Marbury v. Madison)
  • Different branches depending on subject
  • No branch is regarded as constitutional interpreter
• Three Standards of Review


  • Rationally Related Scrutiny
  • Strict Scrutiny
  • Intermediate Scrutiny
• Facially


  Challenges the constitutionality of law before it is applied to anyone—as is
• As Applied


  Challenges constitutionality of law as applied to individual/group
• Questions to always ask when evaluating Congressional Authority


  • Does Congress have the authority under the Constitution to legislate
  • Does the law violate another constitutional provision or doctrine
• Question to ask when evaluating state authority


  • Does the legislation violate the Constitution
• Bank of the United States: A case study of congressional power


  1. 1781 Continental Congress chartered the first bank of N. America

  2. 1787 Philly Convention Madison proposes Congress be authorized to grant charters of incorporation for the bank

  3. First National Bank established

  4. Second Bank established
• Madison's view


  • Bank couldn't be called necessary to gov't, at most convenient
  • Every insertion or omission in Constitution is not explicitly granting or removing certain rights
  • If power was really that important then it would be there, it would not need to be an implied power it would be expressed
  • An interpretation that destroys the very characteristic of government cannot be just
• Attorney General View


  Bill unconstitutional, necessary and proper clause is surplusage, "proper" in constitution serves as restriction on Congressional authority not expansion
• Jefferson's critique


  • Constitution allows congressional power for things that are necessary not just convenient
  • Necessary= without which the gov't couldn't carry out the enumerated power
• Hamilton's Defense


  • The degree in which a measure is necessary can never be the test of the legal right to adopt it
  • Will the means employed have a natural relation to an ends of government
• Second Bank was not purely governmental agency, 80% private investors, gov't own 20%
• McCulloch v. Maryland


  1. Congress can create a bank

  2. State cannot tax federal bank
• Rationale for McCulloch v. Maryland

  • Historical experience justifies constitutionality of practice
  • Rejects compact federalism, Union gov't is that of the people, not states
  • Necessary defined: not a restriction, means useful or desirable
  • Congressional power to create bank includes power to preserve bank's existence
  • Federal gov't represents everyone, state tax on federal bank is unconstitutional
• Congress ability to charter bank

  Historical experience justifies constitutionality of practice: bank creation recognized by many successive legislatures and was heavily debated at time of adoption
• Compact federalism


  Rejects the idea that states are ultimately sovereign: the people ratified the constitution and are thus sovereign, not states....Union government is that of the people, states don't retain ultimate sovereignty to Federal Government under Constitution
• Means-Ends


  Congress not limited by enumerated powers, may choose any means, not forbidden by Constitution, to carry out lawful authority---Necessary and proper clause
• Necessary


  Not a restriction, means useful or desirable, doesn't mean essential---constitutional structure argument: clause placed in article 8 which expands Congressional power
• MD authority to tax bank

  Congressional power to create bank includes power to preserve bank's existence
• Federal government


  Represents everyone...state tax on federal bank is like taxing everyone else in different states
• Federal government


  Supreme to state
• No compact federalism (states sovereign), define scope of Congressional power (means-ends...), limit state ability to interfere with federal activities
• Inherent powers


  The nature of the power of a sovereign
• Implied powers


  Means to execute the ends
• Jackson veto bank extension, says he can interpret constitution...no necessary evils in government, evil only exist in abuses
• Purchase of new territory

  Not clearly authorized in Constitutional text
• Jefferson's justification for Louisiana Purchase

  It involves self-preservation
• Congress has power to deal with countries we are at war with, but not with others
• Vetoed bill from Congress to finance internal improvements because though for general welfare not in enumerated powers
• Jackson argues that he has duty to uphold constitution as he sees it, regardless of SCOTUS interpretation of constitutionality
• It is for him to decide if law is necessary and proper and he doesn't think it is
• Sedition Act of 1798 criminalizing criticism of the government or any government official
• Viewed as federalist measure to silence opponents
• Kentucky and Virginia Resolutions of 1798-1788 said federal government overstepped power, act not a part of non-enumerated powers or implied
• Kentucky and Virginia Resolutions declared that Sedition Act null and void in their territories
• Compact theory


  States gave federal government power and states reserve right not to be part of federal government