Constitutional Law

Year - 1819
Majority Opinion - John Marshall

Federalism
1) MD is not sovereign. It's "we the people," not "we the states"

2) Constitution supports one supreme government over the states.
a) Although the fed government power is limited, it is supreme in its sphere.

3) If MD can tax the fed government, then they would be supreme and that's not what "we the people" wanted.
a) Power to tax is the power to destroy.

4) Taxation without representation. State taxing the federal government is taxing everyone outside the state that pays taxes to fed gov... yet they don't have a vote in the state.
a) MD is represented in the nation. The nation isn't represented within MD.

Necessary and Proper
1) There is a difference between "necessary" and "absolutely necessary."
a) Article 1 Section 10 says "absolutely necessary," but this doesn't.

2) N&P is listed in A1S8, which GIVES power to congress. It's a permissive clause. If it was meant to be restrictive, would have been in A1S9.

4) Enumerated powers require execution. We need means to meet the ends.
A) If the end is legitimate and the means do not violate a prohibited power, then the fed action is constitutional.
B) MD's interpretation precluding this one is inneficient in terms of executing powers.

Implied Powers
1) Enumerated powers don't exclude implied or incidental powers. (Paragraph 16 and 17, heart of the opinion)

2) The constitution isn't a legal code. We're going to have to read between the lines. There are things that are implied that we will have to infer.

Tenth Amendment
1) MD argues this, but gets shot down. It doesn't say "powers not 'expressly' delegated," it just says "powers not delegated."
a) Important limitation of 10th amendment. If an implied power can be stretched or construed, 10th amendment is rendered impotent.

General Points
1) A broad interpretation of implied powers and N&P is okay because Congress won't abuse the power and, if they do, the SC will check them.

2) Marshall uses nation instead of republic, twice.

3) Duty of deciding falls to the SC. It's a peaceful means of dispute resolution, which at the time was something of a novel concept.

Year - 1803
Man - Thomas Jefferson

1) Jefferson thought purchase was unconstitutional.
a) No express power to acquire territory

2) Purchases anyways. Says that we have a higher obligation than to the constitution.
a) It's unconstitutional, but necessary.

Year - 1832
Man - Andrew Jackson

1) Background - Congress rechartered the bank, but Jackson vetoed because he thought it was unconstitutional. Said it's not "necessary and proper."

2) Power over means shouldn't be absolute power.

3) Equal Protection - This idea surfaces for the first time.
a) "...every man is equally entitled to protection under the law."

4) SOP - The president isn't bound by McCulloch. (this is correct). SOP in the government.

Year - 1798

1) Background - Outlawed false malicious statements about the Executive and Congress.
a) Was a political move by the federalists/John Adams to crush opposition and establish a one party state.

· 3 Justifications o Inherent Power: Every government has the power to protect itself § This is a big jump: flag burning to functionally creating a one party state by restricting “men prone to usurp” o Necessary and Proper – to protect the government § Inherent power dressed in a textual claim § You don’t see the N&P clause as an independent source of power after McCulloch o We are liberalizing the Common Law § Where does the Congress get the power to mess with the Common Law?
G. Republican theory (the F arguments are cheating) 1. People are sovereign. Govt is agent of people and can’t silence them 2. Say there are no CL crimes in the federal government, they can only make criminal what Art. 1 says they can punish 3. Encourage states to pass resolutions to get around the Sedition Act b/c states are sovereign 4. If you can do this, show me the enumerated power

Year - 1798-1799Men - Jefferson and Madison

1) Plant the Seeds for Civil War.
a) Shows that if the states don't accept the SC, then there is no arbiter and that will lead to a call to arms.
2) The breach of the federal government was "deliberate, palpable and dangerous.3) States are sovereign (conflicts with Marshall)

· Constitution as a compact between the federal government (agent) and the states (principal) · Sovereign states are the best arbiter to solve this dispute o SCOTUS is not impartial; they will decide in favor of retaining its own power

Year - 1810
Majority - Marshall

1) Facts - Arose from Yazoo land grant scandal. Speculators bribed the Georgia legislature to give them cheap land, then flipped the land to innocent parties. Georgia then tried to invalidate the initial sale. Marshall held unconstitutional.

Contracts Clause
1) Dominant form of limiting the states in the 19th century.

2) Legislatures can bind their successors.
a) Otherwise, property rights would never be secure.

3) Marshall limits state power. He says that if Georgia were able to do this, it would be an act of power, not law.

4) You can't take from A and give to B.
a) This was the prevalent view during the 19th century.
b) Marshall knew there wasn't a "no taking" clause in the constitution (5th amendment doesn't apply to states), so he used the contracts clause as textual support.
i) But contracts clause wasn't actually intended for this. Intended to prevent debtor relief laws.

5) Georgia restrained by "general principles"
a) Right to "life, liberty and pursuit of happiness."
b) But response to this is, where in the C does it say states are bound by general principles?

6) Two major arguments: "General principles" and Contracts Clause.

Year - 1794
Opinion -

· A3 clearly permits suits against states by citizens of other states · GA doesn’t show up: they believe fed courts don’t have jurisdiction unless they consent to be sued- Holding - Georgia not sovereign. Response? The 11^th Amendment was ratified – you cannot bring a state to federal court – no federal court can have jurisdiction in a case in which a state is a party.
· 11^th amendment adopted in response to decision. Prohibits fed courts from hearing suits against a state by citizens of another state or foreign country. States adopt: they fear collection of unpaid war debts

Year - 1819
Opinion - Marshall

1) Background - NH revoked Dartmouth's charter.

2) Holding - Marshall said unconstitutional.
a) Contracts clause includes grants of privilege... not just grant of property, as NH alleged.

Year - 1819
Opinion -

1) Holding - NY bankruptcy law could not act retroactively to discharge a debt incurred before the law was enacted.

2) Applies to private contracts.

3) This was first time contracts clause was applied to a case it was actually designed to cover.

Year - 1827
Opinion - NOT Marshall (Marshall's only dissent)

1) Holding - Contracts clause only applies to existing contracts... not future contracts.

2) Jackson cites a law that will bind even the deity - vested property rights and natural law.

Year - 1798
Opinion - Chase

· “Unwritten”, Pre-constitutional rights consisting of principles of natural law, enforceable against the states even though it is not found in the Constitution. · No naked takings, taking property from A and giving it to B, typical 18^th & 19^th C. cons violation (changes in the early-mid 20th century)1) Madison probably created the 9th amendment with this in mind. a) He feared that if rights were simply listed in the BoR, they would be more limited than if they were left to assumption.

Year - 1825
Opinion - Marshall

1) Holding - Positive law trumps natural rights.

2) Facts - Law prohibiting the international slave trade – U.S. Coast Guard seized a ship bearing 280 slaves owned by Spain and Portugal and destined for South America/Cuba.

3) Though slavery is against natural law, international positive law says that the ship owner ought to be able to keep his slaves.

4) Decision was largely driven by desire to appease the south.

Year - 1823
Opinion - Marshall

Justifications for Taking the Indians Land
1) We won the war. We get the land. Spoils of war.

2) "Character and habits" justified the taking of their land.
a) Do not qualify as part of civilization (savages)
b) Differing view of ownership (communal)

3) Indians aren't citizens.
a) Merely occupants
b) This may be morally wrong, but the courts can't change that.

 

Year - 1831
Opinion - Marshall

1) Facts - To assert their sovereignty, Georgia tried and convicted a Cherokee for a murder he committed on a reservation against another Cherokee.

2) Holding - Cherokee are not a foreign nation?

3) “Domestic dependent nation” – seems to be a “compromise” between foreign nation and state/citizen – based on his idea that Indians were “primitive savages” This got the US the best of both worlds.

4) In his concurrence, Johnson described the relationship as "ward" and "guardian"

Year - 1832

· Significant departure from previous Indian rulings · Native Americans were entitled to federal protection from the actions of state governments which would infringe on the tribe’s sovereignty · Constitution grants sole authority to deal with Indians to Congress1) Georgia disregarded ruling though, showing that there isn't really a mechanism in place if a state just decides to ignore the SC.