Reading 4/3 - 4/7
Ellis & Nelson, Chapter 2 (Federalism / Drinking)
Monroe & Kersh, Chapter 3 (Federalism)
4/10
Monroe & Kersh (Parties, p. 299-322)
Review:
Federalists vs Anti-Federalists
• Conflict over state sovereignty
• Federalists lost election of 1800
Today:
• What does constitution say about power of the
national government vs states?
•
What limits on national government power?
• Who says what Constitution says?
• How should it be interpreted?
Marshall Court and Judicial Review
A. Institutionalized Nationalist / Federalist Principles
1. Any state law/statute in conflict w/ US Const. is void
2. Jefferson saw Courts as “advisory”
3. Marshall a Federalist, used Court to strengthen
national government
B. Wm. Marbury v. James Madison (1803)
1. Madison, Jeffs Scty of State (1801 - 1809)
Madison left Federalists in 1792
2. Marbury appointed to a Fed Court position by Adams
in “midnight packing”
58 judges appointed in 1801
Marbury a Adams supporter
3. Madison refused to deliver appointment
4. Marbury sues, seeks remedy under Fed. Judiciary Act
of 1789: Writ of Mandamus
Compel Secretary of State to deliver his commission
C.
Marbury v Madison: A “self-enforcing” decision
1. Madison violating law by refusing to deliver
commission
2. Clause in Fed Judiciary Act re: Writ of Mandamus
is in violation of US Constitution
3. Court (Marshall) will not/cannot issue Writ
4. Marbury had no remedy under 1789 Jud Act.
D. Significance of Marbury v. Madison
1) est. precedent of judicial review of acts of Congress
2) begins to place Courts on more equal footing w/ other
branches
3) No act of Congress rejected by Court until Dred Scott
4) Defined & established Court's limited jurisdiction
Rise of National Supremacy vs. States
A. McCulloch v. Maryland (1819)
1). What can the new National Government do?
 What laws can Congress pass?
 When are laws of Congress superior to State laws
“Strict constructionists” suggest Madison intended:
Acts of Congress must be limited to things enumerated
in Article 1, Section 8 of US Constitution
But, we also have language saying the National Govt:
• deal with “issues where states incompetent”
• promote “general interest"
• provide for the “general welfare”
2) Original Federalism built into US Constitution
 State governments with substantial autonomy
• states define civil liberties
 slavery, voting rights, speech, etc.
• states define/fund most public policy
 National government of narrow, delegated powers
• but how narrow?
Plus, 10th Amendment
3) McCulloch v. Maryland Background:
First Bank of United States, 1791-1811
 Hamilton's plan, chartered by original Congress
 Second Bank of US 1816, hated in South & West
 Major economic recession in agriculture
 8 states passed laws “regulating” the Bank of the US
 Maryland passed a tax on all bank activity not done w/
state (MD) chartered banks
 McCulloch US Bank official in MD, refused to pay tax
• Daniel Webster defended Bank of US (McCulloch)
• Luther Martin defended Maryland (old anti-fed)
http://www.youtube.com/watch?v=qoKcWfyMHKM
B. John Marshall's decision (1819)
“The first question made in the cause is, has Congress power to
incorporate a bank?”
1) Yes, The Federal Government has the power:
“Although, among the enumerated powers of government, we
do not find the word "bank," or "incorporation," we find the
great powers to lay and collect taxes; to borrow money; to
regulate commerce; to declare and conduct a war; and to raise
and support armies and navies.”
“The sword and the purse, all the external relations, and no
inconsiderable portion of the industry of the nation, are
entrusted to its government. It can never be pretended that
these vast powers draw after them others of inferior
importance, merely because they are inferior.”
2) The States are inferior to the Federal government:
"that the power to tax involves the power to destroy, that
the power to destroy may defeat the power to create..."
the state cannot have such power
3) Supremacy Clause "the great principle" of Const.
• Article 6, Section 2
This Constitution, and the Laws of the United States
which shall be made 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
4) Implied powers:
“there is no phrase in the instrument which, like the Articles of
Confederation, excludes incidental or implied powers; and
which requires that everything granted shall be expressly and
minutely described.”
• general welfare clause (1.8.1)
• the commerce clause (1.8.3)
• the necessary and proper clause (1.8.18)
So,
WHAT IS COMMERCE?
What is necessary and proper?
J. Marshall’s Federalist Principles
A. Promote Strong(er) Central Government
1. Establish the supremacy of new national government
Gibbons v. Ogden (1824)
 Robert Fulton of NY granted monopoly
 Gibbons (of NY) sought to block Ogden (of US)
from operating in violation of NY charter
 NY claimed Hudson River belonged to NY
 At issue: interstate commerce
Marshall:




NY Harbor "international"
"among the several states"
navigation = commerce
Constitution says Congress has power to regulate
commerce “among the several states”
 NY law granting monopoly unconstitutional
Commerce Clause used to void state laws
Used to expand range of Congress’ power
B. Strong Protection of Property and Contract
• Against attacks by state laws
• Against attacks by popular majorities
1. Fletcher v. Peck (1810)
 First state law held unconstitutional
 Upheld contract permitting purchase of Indian Land
35,000,000 acres @ $0.01 p /ac
GA state leg took bribes, sold land cheap
Voted out, new legislature repealed sale
 Original Yazoo contract negotiated w/ fraud
 But contracts are binding; let buyer/seller beware
 The contract stands
2. Dartmouth v. NH (1819)
 King George III granted charter to est. NH college when
NH a British Colony (1760)
 charter gave land grant to be collected by colony
 after revolution state tried to take College & make public
Marshall Court:
• contract must be honored
• even if orig. party defunct
• contracts can stand across generations
C. Judicial Equality w/ other branches
1. Establish equality with precedent of Judicial Review
Marbury v. Madison (1803)
Slow Growth of National Government Powers
• Marshall Court illustrates how Constitution so "flexible"
A. Change in Scope of National power
1) Courts
2) Crisis (Civil War...Depression)
3) Amendments to original document
How has power of Federal government grown?
Federalism:
A. "Dual federalism" 1789-1933 - layer cake
Dual sovereignty, dual citizenship
Dual sovereignty; 10th Amendment, McCulloch, Gibbons:
National powers:
International relations
Commerce between states:
tariffs, copyrights, patents, currency, trade,
postal service ....slavery?
Internal improvements
roads, canals
State powers:
Everything else (police powers) - safety, health,
welfare, education, criminal law, morality
Dual citizenship;
Barron v. Baltimore 1833
Citizen of both US, and States
Fundamental rights derive from state, not US
Post Civil War:
13th, 14th, 15th Amendments
Beginning of end of "dual citizenship"
Post New Deal: (1933 - today)
"Cooperative federalism"
marble cake
1) Separation of powers between. branches blurs
2) Much greater federal govt role vs states:
• education
• social services
• environment
• civil rights and liberties
• managing economy
• health care
• Federal grants
• What is left to states?
Marriage?
States set laws
Courts rule on state & federal law
Loving v Virginia (1967)
US v Windsor (2013)
equal protection before law (14th Amd)
3) Orig. Const. no longer clear "map" of how US Govt works
"The United States are...."
vs.
"The United States is........"
4) How does government work despite the "gaps"
Constitution?
Checks & balances
Built in deadlock