1. Introduction to the Constitution
  2. War of Independence
  3. No real governemtn, truly run by loose association of states
  4. Articles of Confederation
  5. Came into force in 1781
  6. No executive power of any meaning
  7. Unicameracl congress by state appointment
  8. No federal interests could develop
  9. One state-one vote
  10. No power to raise money
  11. Constitution
  12. Possibly unconstitutional
  13. Passed by rules of constitutional convention, not Articles of Confederation
  14. Exigency
  15. great seasons when persons are justified in exceeding their limited powers.
  16. Tensions
  17. Limited Structure protects rights, or enumeration protects rights?
  18. Can republican government work over such a large nation?
  19. Should Congress have veto over state laws?
  20. Big states v. small states
  21. Detail for legislative, but not judicial
  22. Will constitution last a long time, or be constantly changed?
  23. Relationship between states and fed.
  24. Can middling sorts be truted to govern?
  25. Relationship with Britain, France
  26. What would economy become?
  27. How much power should Fed have?
  28. How much should we trust founders?
  29. Some intended constitution to change a lot
  30. They got parties wrong
  31. They distrusted the mob
  32. How do we know what they wanted? Lots of internal debates

  1. History of the Constitution in American Law and Politics: Marshall Court and Early Republic Years
  2. Constitutional Politics outside the court
  3. The First Bank
  4. Proposed under AofC
  5. Proposed during Constitutional Convention
  6. Never brought to a vote
  7. Does Congress have the power to make a national bank?
  8. Yes - Hamilton
  9. Government is allowed to do anything that it is not precluded from doing
  10. “necessary” designed to give liberal interpretation
  11. Bank power relates to:
  12. Taxation
  13. Borrowing money
  14. Regulating trade
  15. Maintaining armies
  16. Regulating property
  17. No - Madison
  18. Constitution only grants enumerated powers
  19. Not powers cited by Hamilton
  20. Bank will not tax
  21. This is not a bill to borrow money
  22. All laws necessary and proper does not give unlimited discretion
  23. Bank would be both ends and means
  24. Constitution is silent on issue
  25. Hamilton Wins, Bank made in 1791
  26. Sedition Act of 1798
  27. Opposed by Madison, Jefferson
  28. Prohibited by Frist Amendment
  29. Atempts at nullification by the states
  30. Election of 1800 – emergence of parties
  31. Let to 12th amendment, different tickets for President and VP
  32. First peaceful transtion after incumbents elected out of office in history
  33. But, lame ducks pass Judiciary Act of 1801 to try to court pack
  34. Judicial Review
  35. Precedents for Judicial Review
  36. No precedent in England
  37. Natural law tradition
  38. Locke’s Social Compact: people enforce compact through judiciary
  39. But, not settled really at tiem of constitutional convention
  40. Stuart v. Laird
  41. Held Repeal Act (overturning lame duck court packing) constitutional
  42. Court acquiesced to political branches
  43. Maybe this means courts must accept political will at beginning of nation, until the can prove their own legitimacy
  44. Maybe it means that courts are always influenced by political power
  45. Marbury v. Madison
  46. Basis for Judicial review of congressional acts
  47. Court decided this even though they did not need to
  48. Lacked SMJ
  49. Court is determining its own powers
  50. They could have read Judiary Act to avoid a constitutional problem, but they did not
  51. Unlike doctrine of constitutional avoidance today
  52. Also reached other issues they did not need to
  53. Executive powers, seperation of pweors, etc.
  54. Reasoned out, not based on precedent
  55. “it is emphatically within the province of the judiciary to determine what the law is”
  56. Weak v. Strong Claim
  57. Weak claim: court treats constitution as regular law, declines to give legal effect to laws that are unconstitutional
  58. Strong claim: Corut is interpreting the constitution, these interpretations are binding.
  59. Which one is it?
  60. Kramer: if it was the strong one, people would have rejected it
  61. Reasoning for Judicial Review
  62. Written constitution implies judicial review
  63. But what if it being written allows non-experts access to constitutional discussion
  64. Fovernment of limited powers requires judicial review
  65. What makes court proper referee? Why not accountability through political process?
  66. Judicial review is a per to fh tenature of judicial power
  67. Only gets you narrow, not broad authority
  68. Supremacy clause
  69. Doesn’t say who interprets the supreme law
  70. Judicial oath
  71. Others take this too
  72. Irony of Marbury
  73. Assertion of judicial power in face of a lack of judicial power
  74. Court feared that decision in other direction would have made Jefferson order Madison to not comply, making Judicial branch seem completely powerless
  75. Political Branches: Decentralised Constitutionalism
  76. Louisiana Purchase
  77. Constitutional?
  78. No - Jefferson
  79. Not an explicit power
  80. Need amendment
  81. Yes
  82. Power comes form power to make way, sign treaties, and govern territory
  83. Upshot: ultimately decided by Leg. and Pres., not courts
  84. Exigency won out over formalism as Jefferson relented and agreed even without an amendment
  85. Second Bank
  86. Chartered due to War of 1812 and need to finance army
  87. Constitutional?
  88. Madison opposed it, but acknowledged that repeated political actions showed its constitutionality
  89. Decentralized constitutionalism giving finality?
  90. Jackson vetoes it in 1932
  91. Precedent is not binding until you have acquiescence of people and states
  92. Each branch is to be guided by its own view of the constitution
  93. The general Welfare
  94. Early republicans refused finding after Savannah fires
  95. Madison refused money to build roads and canals between states as part of general welfare power
  96. Marshall Court and Federalism
  97. Judicial Review of State Statutes Settled
  98. Martin v. Hunter’s Lessee (1816), Cohens v. Virginia (1821)
  99. State attachments, prejudices, jealousies, interest might obstruct the administration of justice
  100. Uniformity
  101. Judicial power is co-extensive with leg. , should be able to decide everything
  102. Article III judges are more impartial due to life tenure
  103. States could have a veto
  104. States were stripped of power when they gave it to congress, bound by constitution, accepted appellate power over state courts
  105. ; Bank is Constitutional: McCulloch v. Maryland (1819)
  106. Holdings
  107. Congress has power to create Bank. Bank has power to Tax.
  108. Rules
  109. If end is legitimate, SCOTUS shall not question the means necessary to achieve it so long as it is really for that purpose.
  110. Constitution is from the people
  111. Not sovereign states
  112. Government is limited in its powers, but supreme within its sphere
  113. Based on reason, not text (like Marbury)
  114. But, might not limitation of fed. Powers imply an obligation not to conflict with states?
  115. Essential Federalism issue:
  116. Strong: Federal Powers expand to limits of state powers
  117. Weak: state powers expand to limits of federal powers
  118. Textualism v. Dynamism
  119. Marshall argues that Constitution is not specific, more dynamic than a statute
  120. Losers argue that strict textualism should apply
  121.  Reason does not settle this battle
  122. Part of Necessary and Proper powers
  123. Let the ends be legitimate
  124. Shall not inquire into degree of necessity of bank, that is legislative role.
  125. Is Tax Constitutional?
  126. Power to tax is the power to destroy
  127. But, states can tax so long as it does not destroy
  128. Issue of discriminatory taxes.
  129. Gibbons v. Ogden (1824)
  130. Issue: can a state regulate interstate commerce when Congress is regulating it?
  131. McCulloch did not settle the issue of strict construction, broad power of states
  132. Taxing and Commerce clause
  133. Power to tax is no longer the power to destroy
  134. Commerce is intercourse in all its branches
  135. Identical actions can come from different powers
  136. New York acts must yield to Congress
  137. Where there I a conflict between New York and Congress
  138. Does not matter whether it is a police power, or a concurrent power
  139. Looks to purpose when text Is ambiguous
  140. Johnson, Concurrence; states can’t act even when Congress ahs not acted (Dormant Commerce Clause)
  141. Marshall’s Nationalism
  142. States are still important
  143. Not just people. If just people, majority could have imposed on minority, even if whole state objected
  144. States are more important than Marshall said in McCulloch
  145. Unanimity
  146. Marshall pushed for unanimity
  147. Pushed federalism
  148. Wanted to expand national government

  1. Themes and Methods
  2. Judicial Review Questions
  3. Judicial Supremacy?
  4. Constitutional supremacy?
  5. What role do other actors play?
  6. Of what?
  7. Prior decision of Cout: Stare Decisis
  8. Risk elevating court over the text
  9. Decision of lower courts
  10. Lower on hierarchy
  11. But, they might have greater competence on specific issues
  12. Congress
  13. Does constitution have different levels of deference for different actions of Congress?
  14. Implementation provisions
  15. Open ended terms
  16. Necessary and proper
  17. General welfare
  18. Maybe a political judgment
  19. Does history deserve deference?
  20. What about Dred Scott?
  21. Are political decisions unreviewabe?
  22. Marbury created an area of unreviewable political decisions.
  23. Countermajoritarian Difficulty
  24. Unelected SCOTUS overrules the elected Congress, President
  25. Issues
  26. What is our theory of democratic legitimacy?
  27. Is majoritariansim what we want?
  28. Not according to original contitution, fear of the mob
  29. Might the judiciary need to protect minorities
  30. What if our democratic theory has changed?
  31. Institutional competence
  32. Cases and controversies might be bad way to decide policy
  33. Maybe leg. debates are better, address broader range of issues.
  34. Is SCOTUS better suited to figure out what he consequences of decision might be?
  35. Leg. has more mebers, more experience, lobbyists
  36. Sources and Methods of Constitutional Interpretation
  37. Historical
  38. Whose intent?
  39. What if history is unclear?
  40. What about disputes among framers?
  41. Bank was ratified by some signers, vetoed by others
  42. Interpretive intent
  43. Did they have a dynamic interpretive intent?
  44. They sealed records for 50 years, what did that mean?
  45. Textual
  46. What is textual?
  47. Plain meaning?
  48. Ordinary?
  49. Technical?
  50. Structural
  51. Strict construction
  52. Doctrinal
  53. Precedent outside of the courts
  54. Stuart v. Laird: upholding repeal act because that sort of thing had been done before
  55. Pre-constitutional precedent
  56. How Marshal derives answer form concepts of sovereignty
  57. Ethical
  58. What is nation’s ethos?
  59. Ethos of today, or framing?
  60. What about things left unsaid at time because they were understood?
  61. Slavery would die out
  62. Prudential
  63. Means-0ends fit, with ends coming from somewhere else
  64. McCulloch v. Maryland and the Modalities
  65. Text: difference between constitution and statute
  66. Structure
  67. Necessary and proper clause and its restrictive nature
  68. Prudential
  69. Exigencies of the nation, difficult, hazardous, expensive operation if not bank
  70. Must adapt to the crises of human affairs
  71. History
  72. Framers
  73. History of Bank
  74. Pre and post ratification in congress
  75. Precedent
  76. Incorporation of first bank is precedent
  77. Ethos
  78. Large nation needs revenue to be collected and armies moved

  1. Slavery and the Civil War
  2. Anti-Slavery Bar tactics
  3. Started with ad hoc black freedom cases
  4. Moved to fugitive slave cases
  5.  started more controversy
  6. used existing tools to end slavery
  7. Garrissonain Position
  8. Constitution CANNOT be used to end slavery, need an amendment, a change to do that.
  9. Thus, you are constrained by the constitution, can’t do anything
  10. Slavery and Commerce: Groves v. Slaughter
  11. SCOTUS intrudes into Mississippi, telling it how to interpret its own constitution
  12. McLean
  13. Constitution acts upon slaves as persons, not property
  14. Thus, they are not commerce
  15. Fear of slave traders, and dangers they bring
  16. Taney
  17. Slaves are not commerce, States have power to deal with slavery
  18. Baldwin
  19. Slaves are items of commerce. Treating slaves as persons would be fatal to the whole system
  20. Fugitive Slaves: Prigg v. Pennsylvania
  21. Justice Story feels constrained by the constitution, can’t go against the Fugitive Slave Act
  22. Garrissonain
  23. Preemptive?
  24. Minimal levels of process in Act, can states do more?
  25. No.
  26. State power to regulate would be power to destroy
  27. Effectively is field preemption
  28. Methodoligies
  29. Historical
  30. Fugitive Slave clause was necessary fot the passage of constitution
  31. But not heavily debated
  32. Textual
  33. In light of historical purposes – fully effectuate the whole objects of clause in light of history
  34. Federal gov. thus has affirmative duty to implement
  35. What if reversed?
  36. Constitution is not so clear on the prohibition of self-help, it is only by using history that you get that conclusion. If you start with text, you might reach another conclusion.
  37. Why this decision?
  38. Genuinely believe constitution allows slavery
  39. Want sot keep country together
  40. Effects
  41. Broadens federal power
  42. To protect slave owners
  43. But, South still bothered by this as it seemed to put power in hands of northerners
  44. Appeasement that ultimately does not work
  45. Taney, Concurrence
  46. No field preemption
  47. One way ratchet
  48. States can regulate to help slave owners, but not blacks
  49. McLean, Dissent
  50. Plea for due process
  51. OK for PA to have law adding process
  52. “claim” language meant due process
  53. Free Blacks – Dred Scott v. Sanford (1857)
  54. Like Marbury, decides more than it needs to
  55. Only needed to decide issue of citizenship that gave right to sue in diversity, not whole citizenship
  56. Find no jurisdiction but keep going
  57. Strikes down Compromise of 1850
  58. Could just have ruled res judicate, state court had already decided issue
  59. About being African-American, not a slave
  60. Even worse than Prigg
  61. Basis of Claim: Missouri Law
  62. But, Scott’s cuased Missouri Supreme Court to change law
  63. Basis of denial: ‘citizenship”
  64. Court found that African Americans are not citizens as used in Constitution
  65. Could have foudna more limited citizenship, though
  66. Modalities
  67. Historical
  68. Interpretive intent – meaning when adopted
  69. South could not have intended to give blacks rights
  70. Language in constitution treats blacks as property, not citizens
  71. Deference to legislation by First Congress
  72. But, didn’t see this in Marbury
  73. Textual
  74. Structural
  75. Uniform federal naturalization power
  76. Privileges and immunities clause is basis for limiting national citizenship to LCD
  77. Could there be tow different ideas of state and national citizenship?
  78. Precedent
  79. Executive branch precedent re passports
  80. Congressional legislation
  81. Ethical
  82. Garissonianism on steroids – white supremacy was so hard wired that it didn’t need to be mentioned in the constitution
  83. Prudential
  84. Maybe trying to prevent war, continue to appease south
  85. Missouri Compromise Issue
  86. McLean Counterargument
  87. States have power to declare property undesireable, and seize as contraband
  88. Free blacks are undesireable elements, ike paupers
  89. Outfall of Dred Scott
  90. Mobilized opposition and moderate opposition
  91. Schsmogenesis - through engagement parties move further apart instead of drawing toget her
  92. Decentrlaised discussion of constitution
  93. Enven northerners were talking about resistance to judicial authority, made South even more skittish
  94. Lincoln Douglass Debates
  95. Lincoln accepts as judicial act, but resisits it as political rule
  96. Decentralized
  97. SECESSION
  98. Constitutional?
  99. Precedent: Jefferson Davis: exit of states from AofC is precedent
  100. Structural: perpetuity is implied in government
  101. Democratically legitimate?
  102. Some put it to a majority vote
  103. Some states did it in legislature only
  104. Lincoln takes actions
  105. Raises army, sets up blockade before Congressional approval
  106. If War, it is not declared
  107. Must declare war to interfere with intl ships via blockade
  108. Congress approves later
  109. Might be okay if Lincoln could not have got everyone together in time to take action
  110. But, Court finds these ratifications are not necessary
  111. Otherwise President was acting unconstitutionally for a while
  112. Suspends Habeus Corpus
  113. Congress ratifies, but two years later
  114. Also, places more limits on suspension
  115. In re Merryman
  116. SCOTUS says President does not have this power
  117. Written in section for Congress, not president
  118. Lincoln claims that you should not let all the laws lapse for execution of one
  119. Right comes form his obligation to make sure laws are faithfully executed
  120. Military Triunals
  121. Ex Parte Milligan – can’t use military tribunals to try civilians in Norhtern territory so long as the court are open.
  122. Implications for Reconstruction: couldn’t use military tribunals for freed blacks, where they were actually getting a better deal than in local courts
  123. Emancipation
  124. Confiscation Acts
  125. Started with confiscation of slaves of the rebels
  126. Like confiscation of property of enemy
  127. But, also confiscated property of possibly loyal persons
  128. Emancipatoin Declaration
  129. Confiscated property from all, even the loyal
  130. Only in enemy territory, so obviously not to be used for military purposes
  131. Legal Tender
  132. Hepburn: concern by former executive branch official that exigency based arguments during war were a little scary
  133. U.S. issued demand notes, and made greenbacks legal tender, even for pre-existing debts during war
  134. Congress lacked the power to do this
  135. Limits of McCulloch’s implied powers approach
  136. Spirit of the Contracts Clause
  137. Fifth Amendment
  138. Just compensation
  139. Due process
  140. Dissent: Wartime exigency
  141. Knox v. Lee
  142. Reverses Hepburn, Exigency wins
  143. Broader reading of Congressional Power than existed in McCulloch
  144. Debatable claim of Congressional power that ends up going mainstream

  1. Reconstruction to WWI
  2. 13th Amendment
  3. Passed to end slavery in North, quell doubts about Congressional power to enforce Emanciaption Proclamation
  4. Issues
  5. Was it a taking without compensation?
  6. 14th Amendment
  7. Why the 14th?
  8. Unclear if 13th gave them powr to reconstruct
  9. Congress used power to determine qualifications of its own members to require ratification of 14th Amendment, this kept out Democrats, allowing for ratification
  10. Legitimacy
  11. Southern States left, forfeited representation in Congress \
  12. Doesn’t explain consent to 13th amendment or Lincoln’s assertion that they had no right in the first place to leave the Union
  13. South gov’ts no longer republican b/c majority of free males was denied right to participate. Congress had no duty to respect nonrepublican gov’ts...
  14. Southern states were in grasp of war until they accepted North’s demands and therefore victor got the spoils. It could count them for 13th amendment purposes and then change mind to gain whatever political advantage it wanted. 14th is act of political and military power.
  15. 14th amendment is so central to Nation’s sense of itself and it guarantees of justice, civil rights and liberties that it must be accepted as legitimate.
  16. By end of 1870s, so many people accepted 14th amendment that no further explanation of legitimacy is needed.
  17. Illegitimacy
  18. Would ERA have been an Article V amendment if Congress had threatened to withhold federal funding?
  19. What about Article V – No State, without its consent, shall be deprived of its equal Suffrage in the Senate
  20. Slaughter house Cases
  21. 13th and 14th Amendments do not apply to economic free labor rights
  22. Civil war was about Race, not state’s rights
  23. Difference between state and national citizenship
  24. Constitution protects only national privileges, more limited than state privileges
  25. Effect: federal substantive rights basically don’t exist, have to go to states which effectively destroys hope sof blacks in south
  26. Modalities
  27. Historical context and text
  28. As in Dred Scott, enforces underlying deal that related to a particular set of historical circumstances
  29. What was the historical meaning?
  30. End slavery, or embrace free labor?
  31. End race discrimination, or class legislation?
  32. Return to antebellum order, or create new federalism?
  33. Are fundamental rights protected at federal and not state level now?
  34. Will the fed supervise states?
  35.  important reversal from founding where the fed was the dangerous element, states were more protective
  36. Gender and work: Bradwell v.