The Structure of the Constitution: The Three Branches. Article 1 § 1



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The Structure of the Constitution:


  1. The Three Branches.

    1. Article 1 § 1. This is a conferral of power to the legislative body, the Congress.

    2. Article 2 § 1. This is a conferral of power on the executive branch. Note: The words of this Article contain the word “he,” but we should not rule out having a female president.

    3. Article 3 § 1. This creates only the Supreme Court. There is no explicit creation of lower federal courts, but states that they can be created.

    4. The notion is that this document is constitutive of the branches; without this conferral of power, there would be no such branches.




  1. Article 1 § 8.

    1. The power to create lower courts. If a strict interpretation of the document were given, the creation of inferior courts by Congress should be in Article 1 § 8: “To constitute tribunals inferior to the Supreme Court.” However, this power is picked up in Article 3 § 2 in a different context, but the conferral itself stems from Art. 1.

    2. Enumerated powers. You cold say that Article 1 § 1 creates the legislature and Article 1 § 8 enumerates its specific powers – it mentions “all powers herein granted.” In § 8, there are 18 paragraphs, and the first 17 confer specific powers to Congress (i.e., taxing).

    3. Tribunals. Does the language “tribunals” in Article 1 § 8 reach to military tribunals? In the past, the President has established military tribunals, claiming that power under Article 2.




  1. Enumerated Powers.

    1. The specifically enumerated powers represent a model of limited government. The only powers that can be exercised are those specifically mentioned.

    2. Is the doctrine of enumerated powers, back in 1787, to be interpreted literally? Suppose in 1787 that the power to raise an army hadn’t been enumerated. Would it follow then that the Congress had no such power? Could you argue that they still had such a power? They would likely claim that a country has the right to defend itself, so that power would be implied. This view is opposed to a strictly literal reading of the document.

    3. The Bill of Rights. For example, Amendment 1 states that “Congress shall make no law respecting an establishment of religion.” Is this necessary since it is a document of limited enumerated powers? Yes, if Congress attempted to create a state religion it would be immediately invalidated. No arguing would be needed. Without these amendments, there could be a lot of debate. The Congress would argue that it might fit into another power directly or indirectly.




  1. Article 1 § 8. The Necessary and Proper Clause.

    1. That clause states that Congress has the power “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.”

    2. James Madison, the Federalist Papers no. 44. He makes two points on this clause: First, an enumeration of every single “means” would be hopelessly complex without this clause; and second, this doctrine is so necessary as to be understood even if not expressly set out in this provision. NOTE: But later, Madison would argue that it was only those means which were “absolutely” necessary that should be allowed.



A Brief History of the Drafting of the Constitution and McCulloch v Maryland:


  1. Generally. Government under the Articles of Confederation proved unsatisfactory. The powers of the federal government were severely limited. The country was undergoing a severe economic depression, and as early as 1783, Alexander Hamilton called for a meeting to amend the federal government. A convention met in Philadelphia in 1787 and ended up, not just amending the Articles, but drafting a new constitution – something the delegates knew was beyond their congressional authorization.




  1. IMPLIED POWERS. One of the first constitutional questions confronted by the new federal government was whether chartering a national bank was within the enumerated powers conferred to Congress by Article 1 § 8. In December of 1790, Secretary of the Treasury Alexander Hamilton submitted a plan for a national bank. The Senate unanimously adopted Hamilton’s proposal. In the House, however, James Madison opened the debate by denouncing the proposed bank as being beyond Congress’ authority.




  1. McCulloch v Maryland’s FIRST QUESTION. Supreme Court, 1819.




  • Facts: In 1818, the Maryland Assembly enacted a law imposing an annual tax of $15,000 on all banks or branches of banks in the state not chartered by the state legislature. The only bank that fit this description was the Second Bank of the United States, whose local cashier, McCulloch, refused to pay the tax. Maryland successfully sued him in its own courts to recover the penalty for failure to comply with the statute.

  • Question 1: Does Congress have the power to incorporate a bank?

  • Holding and Rationale: Yes. Maryland’s lawyer considers the Constitution not as emanating from the people, but as the act of sovereign and independent states. According to him, the powers of the federal government are delegated by the states, who alone possess supreme dominion. The Supreme Court rejected this argument: The measures adopted were adopted by the people who could accept or reject it, and therefore this act was final. The federal government, though limited in its powers, is supreme within its sphere of action. There is no language in the Constitution which excludes the incidental or implied powers. Though among those powers enumerated there is no mention of “bank,” there are powers to lay and collect taxes, to borrow money, and to regulate commerce. The government, entrusted with these powers, must be entrusted with the means to carry them out. How far may such means be employed? A government which has a right to do an act must be allowed to select the means. The power here, the power to create a corporation, is never used for its own sake, but only for the purpose of affecting something else. In addition to its enumerated powers, the Congress is given the power to make “all laws which shall be necessary and proper, for carrying into execution the foregoing powers.” If the framers had wanted to use the words “absolutely necessary,” they could have. For example: The Congress is given the power to establish the post offices. This power could be executed by the single act of establishing the office. But it has been inferred from this power those means necessary to carry mail from one office to another. It has also been implied to right to punish those who steal mail.

  • Rule: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. To undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.

  • Madison’s Fear. Madison sees this extension of power as unending. He is afraid of the implications of allowing the Congress this power (a slippery slope/parade of horribles situation).

  • Marshall’s Opinion. He relied on at least 5 sources of judicial interpretation: (1) The text; (2) The theory and structure of the government established by the Constitution; (3) The consequences of decision; the argument reductio ad absurdum (if p is true, c will follow, c is ridiculous, then p can’t be true); (4) The history surrounding the adoption of the text; and (5) Precedent (the First Bank had already been created).




  1. McCulloch v Maryland’s SECOND QUESTION.

    • Question 2: May the State of Maryland without violating the constitution tax the Bank?

    • Holding and Rationale. Taxation is an important power that the states have. However, the overriding principle is that the Constitution and the laws made in pursuance thereof are supreme; they control the states, and cannot be controlled by them. The power to create implies a power to preserve; a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. Where there is a conflict, the authority which is supreme must control. The power of the states to tax the Bank would grant a power to destroy it. It is the very essence of supremacy to remove all obstacles within its own sphere. It is conceded that all subjects over which the sovereign power of a state extends are objects of taxation, but those over which it does not extend are exempt from taxation. But the people of all the states have created the general government, and have conferred upon it the general power of taxation. The states have no power, by taxation or otherwise, to burden the operations of the laws enacted by Congress to carry into execution its vested powers.

    • Notes. Marshall proceeds with a theory of representation. Where the whole is represented by the parts, the whole can tax those parts. But the parts cannot tax the whole. Where the state is the whole – that is, within its own borders – it may tax according to this theory of representation. However, the real property of the U.S. Bank can be taxed in the same way as that which is owned by Maryland citizens, due to “virtual representation.” From Marshall’s Opinion: This opinion does not extend to a tax paid by the real property of the Bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and consequently is a tax on the operation of the government of the Union to carry its powers into execution.


The Creation of Judicial Review.


  1. Background of Marbury v Madison. On February 13, 1803, the Federalist Congress enacted the Circuit Court Act, which created 16 new circuit judgeships and eliminated the circuit-riding responsibilities of the Supreme Court. The purpose and effect of the Circuit Court Act was to cement Federalist control of the judiciary. A provision of the Act decreased the size of the Supreme Court from 6 to 5 in order to deny the incoming Republican president (Jefferson) the opportunity to appoint a successor to Justice Cushing. In addition, the Organic Act was also passed, creating 42 new positions for justices of the peace in the District of Columbia. Outgoing Federalist President John Adams quickly nominated party members to fill the positions under both Acts, and the Senate hastily confirmed the nominations – Jefferson was to become President on March 4. In these last moments, the commissions of several justices, including Marbury, were not delivered. When Jefferson took office, he ordered James Madison, his Secretary of State, to withhold their delivery. Marbury instituted an action directly in the Supreme Court to compel delivery of the commission.

  2. Marbury v Madison. Supreme Court, 1803.

    1. Marshall’s Opinion, Part One. Paragraphs 1-9. Is Marbury entitled to the commission he demands? Marbury’s commission was signed by John Adams, after which the seal of the United States was affixed to it (by Marshall himself, acting as Adams’ Secretary of State), but the commission never reached the person it was intended for. The commission being signed, the subsequent duty of the Secretary of State (Madison) is prescribed by law, and not to be guided by Jefferson’s will. Paragraphs 10-15. The transmission of the commission is not necessary to constitute the appointment. When a commission is signed, the appointment is made, and it is complete when the seal of the U.S. is affixed to it. Withholding the commission violates a vested legal right.

    2. Marshall’s Opinion, Part Two. Paragraphs 16-28. If Marbury had a right that was violated, does the law afford him a remedy? The person who considers oneself to be injured has a right to resort to the laws of the country for a remedy. Marshall had a legal right to the office, he has a right to the commission, and a violation affords him a remedy. This case is for mandamus, either to deliver the commission or a copy of it.

    3. Marshall’s Opinion, Part Three. Paragraphs 28-33. Section 13 of the Judiciary Act of 1789 authorizes the Supreme Court to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the U.S. Madison is a person holding an office under the authority of the U.S., so he is precisely within the letter of the description. If this Court is not authorized to issue a writ, it must be because the law is unconstitutional. Paragraphs 34-end. To enable this Court to issue a writ or mandamus, it must be to be an exercise of appellate jurisdiction. The authority given to the Supreme Court by the Judicial Act, is not warranted by the Constitution, as it attempts to expand the original jurisdiction of the Court.

    4. Marshall’s Holding. If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority and the duty to declare the statute unconstitutional and to refuse to enforce it. First, he found that the Constitution is paramount. Secondly, “it is emphatically the province and duty of the judicial department to say what the law is.”




  1. Marshall’s Conceptual Arguments.

    1. Marshall’s reductio ad absurdum. Marshall uses the reductio ad absurdum form of argument on the question of whether an act, repugnant to the Constitution, can become the law of the land: The Constitution is either a superior and paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, it is alterable when the legislature shall please to alter it. If the Constitution is paramount, then a legislative act contrary to the Constitution is not law; if the Constitution is not paramount, then written Constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature not limitable.

    2. Judge Gibson’s two cents. It is conceded that the Constitution is a law of superior obligations, and if there is a collision with an act of the legislature, that act would have to give way, but it is a fallacy to suppose that they can come into collision before the judiciary. It may be the case that declaring a law void which was enacted according to the forms prescribed in the constitution is a usurpation of the legislative power.

    3. Paulson’s two cents: Without Constitutional review the courts would always have to go along with legislation, and this would necessarily usurp the judicial power.




  1. Marshall’s Four Textual Arguments from the Constitution.

    1. He says that Article III § 2 gives the judiciary’s appellate power over all cases arising under the Constitution, and that a necessary aspect to the judicial role is interpreting law. Judge Gibson would say that this begs the question of whether they are supposed to interpret the Constitution. The Founders could have meant that they were able to hear challenges to the validity of state laws and practices.

    2. Second, Marshall observed that certain provisions of the Constitution are addressed especially to the courts. This is a rather limited and narrow view of review. To the extent that § 13 of the Judiciary Act directed the Court to ignore Article III § 2, the Court was justified in declaring the act unconstitutional. Judicial review under these circumstances would be okay with Judge Gibson, but not Marshall’s broad view.

    3. Third, Marshall contends that review is supported by the oath that judges have to take to “support the constitution.” Judges would violate this oath if they were to honor an unconstitutional law. This is perhaps the strongest argument against judicial review, however. The same oath is imposed on Congress and the executive, so the Oath Clause seems to indicate a system in which each branch assesses the constitutionality of its own actions.

    4. Finally, Marshall relied on the Supremacy Clause, allegedly addressed to state judges, instructing them that the Constitution and the laws of the U.S. which shall be made in pursuance thereof shall be the supreme law of the land. This reading suggests that state judges may decide whether of not a federal statute comports with the Constitution. Since the Founders could not have intended to give state judges the last say on the validity of federal laws, they must have expected the Supreme Court to review a state court’s ruling in its appellate capacity. But, this may have instead simply meant that a federal law is valid so long as it was adopted pursuant to the procedural formalities of Article I.




  1. Other Arguments for Judicial Review.

    1. Counter-majoritarian Role. Congress represents the majority and therefore might create laws that infringe the minority’s constitutionally guaranteed rights. Federal judges are appointed for life and are therefore less susceptible to political pressure.

    2. Stability. It each branch is free to interpret the constitution there would be no final, uniform answers because the branches would probably interpret the Constitution in its favor leading to conflicting powers, and a Court’s decision would have a limited effect if it could then be overruled by another branch.




  1. Other Arguments Against Judicial Review.

    1. Antidemocratic. Federal judges are not elected officials and therefore are not politically accountable. To vest final authority over the Constitution’s meaning is a repudiation of the principle of democratic self-governance.

    2. Entrenched Error. It is very difficult to correct mistaken judicial interpretations. The only avenues for correction are: (1) the Court changing its mind (although a continuing pattern of litigation may cause Justices to reconsider a matter and change their minds); (2) appointing new Justices (although the appointment process can be used to bring new Justices in line with popular thinking); (3) impeachment (it’s never been used successfully to remove a judge, but it could cripple the independence of the judiciary); and (4) constitutional amendment (it’s difficult, but it has happened four times).




  1. The Precedent for Judicial Review. No provision of the Constitution explicitly authorizes the federal judiciary to review the constitutionality of the acts of Congress. England provided no direct precedent for judicial review. The common law courts never assumed the authority to review acts of Congress. The premise of John Locke’s social compact was that sovereignty did not reside in any agency of government but in the people themselves, who delegated limited authority to those agencies. In the years following the Revolutionary War, the possibility of legislative abuse became increasingly apparent. Judicial review emerged as one remedy. By 1787, several states had asserted the authority to nullify legislative enactments. The intent of the framers is still the subject of dispute. Though Marbury met with some criticism, it took no one by surprise.




  1. Alexander Hamilton Defends Judicial Review (Federalist No. 78).




    1. The judiciary may be said to have neither force nor will, but only judgment. Opposition to judicial review has arisen due to the belief that giving this power would somehow make the judiciary superior to the legislative power. The interpretation of laws is the proper province of the courts. The constitution is fundamental law. The power of the people is superior to both; and where the will of the legislature stands in opposition to that of the people, the judges ought to be governed by the latter rather than the former.



The Review of State Court Decisions.


  1. Generally. Although the Court’s assertion of the power to review state legislation was not controversial, its assertion of the power to review and revise the judgments of state courts encountered some resistance. At issue was the constitutionality of section 25 of the Judicial Act of 1789, which provided for the Supreme Court of final judgments of the highest court of a State in which a decision in the suit could be had in three classes of cases: (1) where is drawn the validity of a treaty or statute of the United States, (2)where is drawn the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, or (3) Where is drawn the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States.

  2. Martin v Hunter’s Lessee. Supreme Court, 1816.

    • Facts: Lord Fairfax, a citizen of Virginia, held title to the so-called Northern Neck of the state, and devised it in 1781 to Denny Martin, a citizen and resident of Great Britain. In 1789, the Commonwealth of Virginia, acting pursuant to a state forfeiture law of 1785, issued a patent covering the land to David Hunter and his heirs. Denny died between 1796 and 1803, leaving as his heir his nephew Thomas Martin, a citizen of Virginia. David Hunter’s lessee brought an action of ejectment in the state court. The Fairfax heirs asserted rights under treaties of 1783 and 1794 with Great Britain. The Virginia Court of Appeals decided in favor of the P. On writ of error, the Supreme Court reversed, holding that Virginia had not perfected the title remaining in Fairfax.

    • Story’s Opinion: The Court of Appeals of Virginia issued this statement: “The court is of the opinion that the power of the Supreme Court does not extend to this court, under a sound construction of the Constitution.” Holding: It is a duty to vest the whole judicial power. It is manifest that a supreme judicial court must be established. It would seem that the appellate power of the United States must extend to state tribunals. This right cannot be seen as to impair the independence of the state courts. (1) The constitution has presumed that state prejudices might sometimes obstruct the regular administration of justice. (2) There is also a need for uniformity of decisions throughout the United States. “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treatises and the Constitution would be different in different states.” The Appellate Jurisdiction is a General Grant of Power. There is no enumeration for appellate jurisdiction. The states are not completely sovereign; the Constitution cuts back upon state sovereignty in numerous respects (the limitations and duties set forth in Article I § 8, 10). There is no reason to presume that state judiciaries are immune from the set of limitations.
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