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ConLawIOutline - Constitutional Law I Fall 2009 Professor...

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Constitutional Law I Fall 2009 Professor Marcosson I. A LITTLE BIT OF HISTORY a. Constitution created a more powerful central federal government than existed under the Articles of Confederation b. Principal of revolution was to overthrow the tyranny of the monarchy and a mistrust of strong, central authority c. Constitution was seen as counter-revolutionary d. Founders wanted to put limits and checks on the power of the federal government e. Enumeration is a check on this power – if it’s not in the Constitution the federal government can’t do it f. THEME 1 : The Constitutional design attempts, in some way, to limit each power it grants, whether it be a power to a government, or to a particular branch of government g. THEME 2: Some of the most important transformations in our governing structure have been brought about by means outside the formal amendment process called for in the charter itself h. The effect of the move from the Articles of Confederation and from a post- Civil War was to come out of a national crisis to a greatly empowered federal government i. THEME 3: The arc of Constitutional history is one of periods of relative stability followed by crises which are resolved or result in new power and responsibility, involving significant authority at the national level II. ARTICLE I AND THE LIMITATIONS OF THE FEDERAL GOVERNMENT a. Congress may act only if there is express or implied authority to act in the Constitution b. However, States may act UNLESS those actions are prohibited by the Constitution c. Two questions when determining constitutionality of any action by Congress i. Does Congress have authority under the Constitution to legislate? ii. If so, does the legislation violate another Constitutional provision or doctrine such as by infringing separation of powers or interfering with individual liberties? d. One question when evaluating the constitutionality of a state law i. Does the law violate the Constitution? e. McCulloch v. Maryland i. What is the nature of federal sovereignty? 1. We are a union of the people, for the people, by the people – one sovereign union of the states or of the people 1
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2. The Constitution derived its authority from the people 3. It was accepted by the people and the states were bound by it 4. It is the people that are sovereign, NOT the states a. Marshall refutes “compact federalism” – the idea that the states are sovereign because they gave up some of their power to ratify the Constitution 5. States are subordinate to the union a. We are a government of the people ii. We have a government of limited powers 1. The federal government is limited BUT SUPREME WITHIN ITS OWN SPHERE 2. This notion is supported by the Supremacy Clause 3. Congress is not limited to only actions enumerated in the Constitution, just limited by acts prohibited by it a. This is a massive EXPANSION of Congressional authority 4. There are implied powers in the Constitution iii. Constructive method 1. The Constitution is “only an outline” a.
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