Constitutional Law Outline
Richards, Fall 2005
Origins of Constitutional Law
[class notes 1-4]
Britain was based on a parliamentary supremacy system, but Americans viewed British as untrue
to their constitutional guarantees.
This feeling informed the revolution, which must be understood
Once drafted, Madison was profoundly disappointed with the Constitution, for failure to protect
human rights, specifically with regards to religion and slavery.
He viewed the document as
and felt that it would ultimately destroy America.
Additionally was concerned
about protecting people against liberty violations from states, which he viewed as a threat.
Post Madison, Americans, especially in the south, begin to accept constitutionalism with
Madison’s pleas are overlooked and forgotten.
Reconstruction Amendments finally allow national power to be used against the states
(specifically the 14
Amendment), in an effort to protect individual liberties.
view of the amendments did not catch on initially, and was not fully realized until post-
WWII, but it was used from the start as a tool to protect irrational racism.
King and the civil rights movement help to fully realize the 14
Amendment as a guarantee
of human rights.
[class notes, reading notes]
Constitutional Interpretation by the Judiciary, and Judicial Review
Marbury v. Madison (US 1803) [Gunther p.3, reading notes 1, class notes 4-7]
Considers the entitlement of Marbury to an appointment, that was not realized with
a commission by the subsequent Jefferson administration.
The court finds that Marbury has a right to the commission as a matter of law, there
is a remedy at law, but fails to grant mandamus after finding that the dispute was
improperly before the Supreme Court on original jurisdiction – denies relief.
Case is important for it creates the concept of
relief because he thinks that the Judiciary Act of 1789’s grant of original
jurisdiction for mandamus is not consistent with Article III of the Constitution,
which outlines instances where the Supreme Court is to have original jurisdiction.
Thus there is also a strong argument for
McCulloch v. Maryland (US 1819) [book 90, reading 7-8, class 5]
Congress chartered a national bank, with branches in various states.
enacted a tax to be levied against the national bank branch in the state.
Marshall, for the court, finds that the state taxing of the federal bank is
unconstitutional, for it hinders the exercise of national power.
While states have
the power to tax, they cannot exercise it in a way that is in opposition to the federal
Here the federal powers are constitutional, not expressly, but on an
implied basis, and thus as the means are narrowly tailored to a legitimate goal,
judicial deference is in order.
Richards notes that this case stands for the idea that there are some matters which