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Madison:
• Speech lays out the position against the bank:
o Today, to set up a bank or corporations, must file
with the government (usually state) and pay a fee
o In the time of the bank debate, did not have the
state laws allowing for the formation of a
corporation
Negative evidence from the Federal Convention that is one thing
that leads him to believe the power does not grant him power of
incorporation:
• Corporate charters did not get approved
• Relevant because it showed that the Constitution should
not be read to include that power as a matter of legislative
intent
• It’s not on the face of the document, so they have to look
for what the body adopted the writing to do, so the fact that
it was considered and rejected is relavent to show the
legislative intent
“an interpretation that destroys the very characteristic of the
government cannot be just”
• including implied powers goes against the enumerated
limited powers
• Madison would say to adopt a broad reading of the powers
of the Federal Gov. would go against the theory behind the
document
There is no specific provision of the Constitution that says
Congress has the power to incorporate a bank (or any corporation)
• If you want to look for provisions that give the power to
incorporate, what are you candidates?
o Necessary and Proper: use this provision to argue
that the incorporation is within Congress’ power
because it is necessary and proper
Argument against the necessary and proper
interpretation: Federal Gov. has limited
and enumerated powers, so you can’t use
the necessary and proper clause standing
alone to give Congress power; if you allow
necessary and proper to do anything you
want, all limitations are irrelevant
This does not mean that necessary and
proper is a nullity, but necessary and proper
Necessary and proper is an auxillary
Constitutional provision
• Standing alone, its not enough, but it
may help expand or interpret
another clause
Articles of Confederation, II: Each state
retains its sovereignty, freedom, and
independence and every power, jurisdiction
and right, which is not by this
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• Facts:
o a military officer issues an order to arrest a citizen
of Maryland
o under the order, the citizen is seized as a prisoner,
taken to Fort McHenry, and kept in confinement
o a habeas corpus is served ont eh commanding
officer, requiring him to produce the prisoner
before a justice of the supreme court
o the officer answers that he is authorized by the
President to suspend the writ of heabeas corpus
at his discretion, and refuses
• Issue: whether the President has the right to spspend the
writ of habeas corpus and to delegate that discretionary
power to a military officer
• Holding: no, the President does not have the right to
suspend the writ of habeus corpus
o only Congress has the power to suspend the writ
o no where in Article 2, which describes the
executive’s power, is there any provision that
justifies the exercise of this power for the
President
o the government of the US is one of limited
powers, and neither of the branches can exercise
any of the powers of government beyond those
specified and granted
Lincoln said he did have the power to suspend Habeas Corpus
• the Constitution says the Habeas Corpus can be suspended
in a time of rebellion
• the Constitution is silent on who can exercise the power
• the provision was made for a dangerous emergency, and
this is a dangerous emergency
• it makes no sense to have to wait for Congress to convene
to provide a remedy in the instance of an emergency
o Power to Emancipate Slaves
o Power of the Commander in Chief
- Power to Establish Military Tribunals
o Ex Parte Milligan
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RECONSTRUCTION ERA
- Background:
o After Lincoln’s assignation, VP Johnson, a Tennessee Democrat was
President
o Johnson was later impeached for resisting the efforts of the Republican
Congress to “reconstruct” the South, and he escaped conviction and
removal from office by a single vote
o some Southerners organized a terrorist resistance to Reconstruction that
eventually culminated in the withdrawal of Union forces from the South
- The Thirteenth and Fourteenth Amendments
o Thirteenth Amendment:
Amendment 13:
• Section 1: Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the US, or any
place subject to their jurisdiction
• Section 2: Congress shall have power to enfoce this article
by appropriate legislation
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Bradwell v. Illinois
• Facts: a female attorney was denied a license to practice
law in Illinois because she was a married woman
• Issue: Whether this law violated the privileges and
immunities clause of the 14th Amendment
• Holding: the right to pursue a legal trade or calling falls
within the province of the state’s power to regulate, and
unless they discriminate against out-of-state-ers , there is
no violation of article 4
• Reason:
o Bradwell made the same argument that the
Louisianna butchers made in that she had the
right to a lawful profession
o Court said the right to pursue a trade or calling is
something that falls within the state police power
and under the Article 2 Section 4, you only had a
right to prevent the state from discriminating
against out of state residents
o as long as the states treated in-staters and out-of-
staters the same way, Article 2, section 4 was not
violated
o Evidence of the Meaning of “Privileges and Immunities”
There is a lot of debate about what the meaning of the Fourteenth
Amendment should be
Beyond the text itself and the debate of Congress, other relevant
Fourteenth Amendment information may be relevant:
• Speeches/writings prior to the Civil War by
o Lincoln
o abolitionists
because the Reconstruction Amendments
did what the Abolitionists wanted to do
Some abolitionists believed Congress ad the
power to abolish slavery
Fourteenth Amendment was also intended to protect and
guarantee the Bill of Rights for the States
o Limiting the Amendment to Racial Discrimination
Background:
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- Background:
o the Framers thought that government was a “necessary evil” and that the
Federal Government needed more monitoring and regulation
o the Progressives thought that government was your friend, and that the
states needed more monitoring and regulation
- The Commerce Clause and Necessary & Proper Clause
o US v. EC Knight Co.
Facts:
• The Congress passed the Sherman Anti-Trust Act in 1890
as a response to the public concern in the growth of giant
combinations controlling tranportation, industry, and
commerce.
• The Act aimed to stop the concentration of wealth and
economic power in the hands of the few.
• It outlawed "every contract, combination...or conspiracy, in
restraint of trade" or interstate commerce, and it declared
every attempt to monopolize any part of trade or
commerce to be illegal.
• The E.C. Knight Company was such a combination
controlling over 98 percent of the sugar-refining business
in the United States.
Issue: Whether Congress exceeded its constitutional authority
under the Commerce Clause when it enacted the Sherman Anti-
Trust Act.
Holding: The Anti-Trust Act was Constitutional, but it did not
apply to Manufacturing
Reason:
• “the result of the transaction was the creation of a
monopoly in the manufacture of a necessary of life" but
ruled that it "could not be suppressed under the provisions
of the act".
• manufacturing—in this case, refining—was a local activity
not subject to congressional regulation of interstate
commerce.
• That which belongs to commerce is within the jurisdiction
of the United States, but that which does not belong to
commerce is within the jurisdiction of the police power of
the State. . . . Doubtless the power to control the
manufacture of a given thing involves in a certain sense the
control of its disposition, but . . . affects it only incidentally
and indirectly.
• Under the Knight decision, any action against
manufacturing combinations would need to be taken by
individual states, making such regulation more difficult
o Champion v. Ames
Facts: The defendants in the case were arrested and convicted
under an Act of Congress of 1895 that made it illegal to send or
conspire to send lottery tickets across state lines.
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o Schneck v. US
Facts:
• During World War I, Schenck mailed circulars to draftees.
• The circulars suggested that the draft was a monstrous
wrong motivated by the capitalist system and urged "Do
not submit to intimidation" but advised only peaceful
action such as petitioning to repeal the Conscription Act.
• Schenck was charged with conspiracy to violate the
Espionage Act by attempting to cause insubordination in
the military and to obstruct recruitment.
• Espionage Act: act passed to bring criminal charges
against those whowere opposing the war effort (similar to
the Sedition Act)
Issue: Whether Schenck’s actions, words, and expressions were
protected by the free speech clause of the First Amendment
Holding: Schenck’s actions, words, and expressions were not
protected by the free speech clause of the First Amendment
because the free speech clause does not protect words used in such
circumstances and of such nature as to create a clear and present
danger that they will bring about the substantive evils that
Congress has a right to prevent
Reason:
• The character of every act depends on the circumstances.
• During wartime, utterances tolerable in peacetime can be
punished.
• Issue of proximity and degree
o Debs v. US
o Abrams v. US
Facts:
• The defendants were convicted on the basis of two leaflets
they printed and threw from windows of a building that
denounced the sending of American troops to Russia and
denounced the war and US efforts to impede the Russian
Revolution.
• The defendants were charged and convicted for inciting
resistance to the war effort and for urging curtailment of
production of essential war material and were sentenced to
20 years in prison.
Issue: Whether the Amendments to the Espoinage Act or the
application of those amendments violated the free speech clause of
the First Amendment
Holding: No, the Espionage Act did not violate the free speech
clause.
Reason:
• the leaflets are an appeal to violent revolution, a call for a
general strike, and an attempt to curtail production of
munitions.
• The leaflets had a tendency to encourage war resistance
and to curtail war production.
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- Racial Discrimination
o Equal Protection Clause
Brown v. Board of Education
o Due Process Clause of the Fifth Amendment
Bolling v. Sharpe
o Racial Classifications Applying Equally to Whites and Others
Loving v. Virginia
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CONSTITUTIONAL STRUCTURE