Poly Sci 411 Miderm

Declaration of Independence (1776)

Document listing British transgressions, grounded in Locke: consent of the governed, rights secured (not bestowed) by government, right of revolution

Argues Parliament’s laws were unconstitutional, not just oppressive. Dissolves ‘political bands’ and declares ‘free and independent states,’ raising the question: league of sovereign states or a sovereign people?

Articles of Confederation

First federal constitution: a league of sovereign states with a weak Congress (no power to tax, raise an army, or enforce), no executive or judiciary, unanimous consent to amend

Drafted by John Dickinson and Richard Henry Lee. Reflects civic republicanism and ‘friendship between sovereign states.’ Congress handles security and foreign affairs and was last resort in interstate disputes. Failure spurred the Convention

Shays’ Rebellion

An uprising that exposed the Confederation’s inability to keep order or protect against internal threats, helping build support for a stronger government

One of the Articles’ problems: no power to check disorder between and within states, states refusing to pay taxes, and trade restrictions among states

Northwest Ordinance (1787)

An act that set procedures for territorial governance and statehood and, in Article 6, banned salvery and indentured servitude

Arguably the Confederation Congress’s most impactful act, following the 1784 Virginia land cession. Southern states approved because they did not want a competing slave economy in the North. Shows Lockean liberty and property themes

Constitutional Convention / ratification (1787-1789)

Philadelphia meeting called by Congress that produced a new constitution, ratified and in effect in 1789 as a compromise document between large/small and slave/free states

The compromises deprived the document of internal coherence. Americans agreed the Constitution answered vital questions but disagreed over what its answers were, so the Revolutionary debates moved into the political arena

Lockean liberalism

Emphasis on individualism, property rights, and the market; the state is a neutral arbiter of competing interests, not of virtue; rejects the small, homogeneous republic

Solution to balancing agricultural and commercial interests: enlarge the sphere. Seen in the Declaration and the Northwest Ordinance

Civic republicanism

Belief that public virtue and commitment to the common good outweigh private interest; liberty needs a small republic with similar religion, manners, and interests

John Adams: ‘public virtue is the only foundation of republics.’ Lineage: Cicero, Harrington, Montesquieu. Liberty would be ‘swallowed up’ in a too-large nation. Shows in the Articles and Anti-Federalist thought

Work-ethic protestantism

Labo has moral value, and self-reliance is divinely purposed; opposes government debt amnesty; overlaps with civic republicans (virtue, anti-corruption) and Lockean (property, individuality)

The fourth leans on liberty. Useful for explaining why some founders resisted government relief for debtors

State-centered theories of power (power and state building)

Constitutions as grants of power; energy and vigor in government (Hamilton); need armies and police (Fed 6, 34); national government rules individuals, not states (Fed 16,17)

Views power as having ‘moral, heroic, self-realizing dimensions.’ Underlines the Federalist case for a strong, vigorous national government

Federalists

Supporters of the Constitution who wanted a larger, stronger national government to protect the Revolution’s promise; feared ‘tyranny of the majority’ in small states; emphasized commerce

Later: broad national powers, presidential control of foreign policy, judicial review, liberal construction. Key texts: Fed 1 (good government from ‘reflection and choice,’ not ‘accident and force’), 10, 70, 78. Madison: government in ‘imbecility’ and ‘impotency’

Anti-Federalists

Opponents of the Constitution who called it ‘consolidated’ and ‘aristocratic’ feared a distant national government and wanted small, homogeneous republics and sovereign states; later favored a weaker executive, laissez-faire economics, and small government

Sam Adams skipped the Convention and mobilized Anti-Fed arguments: Congress needs only ‘necessary powers,’ one legislature would extend to every subject, breeding distrust and requiring a standing army. Also: an independent judiciary will become all-powerful; a unified executive is too much like a king (Anti-Fed 69)

Small republic thesis

Self-government requires a small, homogeneous republic because laws fit local conditions; general laws of majorities are never truly general; states keep police power over health, safety, and morals

From Montesquieu. Fear: conflict between states would require executive force and a standing army to suppress insurrections

‘Enlarge the sphere’ / Federalist 10

Mitigate faction’s effects rather than remove its causes by extending the republic so many interests check each other; majority factions are most dangerous in small homogeneous republics

Madison’s response to the Anti-Feds. Human nature tends toward faction, so states risk majoritarian tyranny over individual rights. Other remedies he mentions: enlightened self-interest, moral leaders, and religion in the people

Madison’s ‘Vices of the Political System of the U.S.’

Critique of the Articles centered on interstate distrust: states making war and treaties, breaching obligations, lacking uniform naturalization, currency, and internal improvements; Congress lacks enforcement power

Worries that one state’s breach absolves all others. Its aim: put the union on a stable footing

Virginia Plan

Randolph/Madison plan: new constitution on popular sovereignty, bicameral Congress by population, national veto through a council of revision

Shifted the agenda from amending the Articles to a new constitution. Warned that otherwise ‘rival and opposite confederacies’ would follow. Committee refused the national veto

New Jersey Plan

Plan keeping the Articles’ structure, adding revenue and commerce powers, giving state courts common-law powers, and barring federal executive command of troops; equal state representation

Challenged Madison’s premise of shifting entirely from a confederate to a republican form. Protects small states and preserves state sovereignty

Connecticut Compromise (Roger Sherman)

Bicameral Congress: House by population, Senate equal by state

Resolved the Virginia vs. New Jersey Plan conflict. Slavery link: small states and slaveholding states both feared a growing majority; representation was the key question for slaveholders

Tax, trade, and foreign policy disputes

Free trade (imports without tariffs) was opposed by northern manufacturers seeking less competition, while the South was more open to trade limits; foreign policy split among Franklin (meet the French people), Adams (make a business pitch), and Jay (in the middle)

Regional disputes show interest shaping constitutional positions. The Continental Congress also formed an early intelligence arm, with controversy over how to conduct it

Supremacy Clause (Article VI)

Makes the Constitution, federal statutes, and treaties superior to conflicting state constitutions and laws, with courts, not Congress, enforcing state compliance

Adopted after the committee rejected the Virginia Plan’s national veto. Problem raised: can courts stay neutral and review all cases?

Separation of powers

No person performs more than one type of government function; a legislature that only legislates protects liberty

Pure version: executive only. Contrast with checks and balances

Federalist 78 / judicial independence debate

Federalists: liberty has nothing to fear from the judiciary alone, only from its alliance with other branches; Anti-Federalists: an independent judiciary would become all-powerful

Article III: judges hold office during good behavior with undiminished pay. SCOTUS in the 1790s: six justices, rode circuit, little original jurisdiction

Article III / original vs. appellate jurisdiction

Vests judicial power in one Supreme Court and inferior courts Congress creates; SCOTUS has very little original jurisdiction (hears cases first) and mostly appellate jurisdiction (reviews lower courts)

Section 2 lists cases, including those between a state and citizens of another state (central to Chisholm). Courts have a duty to follow the Constitution even when statutes conflict

Judicial review (verticle vs. horizontal)

Power of the courts to void laws contrary to the Constitution; vertical = reviewing state decisions (already practiced pre - 1803), horizontal = reviewing acts of Congress (Marbury’s shift)

Open question: is it implicit in ‘judicial power’ or from the overall structure? Tension: courts that cabin legislatures may prevent government from achieving its objectives, but loose construction may oppress minorities

Ex post facto law

A law retroactively punishing conduct; the Constitution’s clause bans retrospective criminal laws only (per Calder)

In Calder, Connecticut’s retrospective law about a will was civil/property-realted, so it was not ex post

Calder v. Bull

CT law reviving Morrison’s will was not ex post facto because that clause covers only criminal laws; Chase: ‘vital principles’ of republican government can overrule flagrant legislative abuse; Iredell: natural justice has no fixed standard

Facts: probate court voided Morrison’s will; CT set that ruling aside; the Calder family, who would have inherited, sued. Significance: Can courts use unwritten principles and natural justice to strike down laws?

Chisholm v. Georgia (1793)

Court held Georgia lacked sovereign immunity from a suit by a South Carolina creditor’s executor under Article III; Wilson: sovereignty resides in the people of the U.S.; Jay: recalled pre-Revolutionary circumstances; Iredell dissented but admitted immunity isn’t in the text

Federalists: constitutional controversies are best resolved through legal process, and states are bound within one sovereign nation. Jeffersonian Republicans questioned judges’ final say. Led to the 11th Amendment

Sovereign immunity and the 11th Amendment

Doctrine that a sovereign state cannot be sued without consent; the 11th Amendment, passed in response to Chisholm, protects states from suit by citizens of another state

Shows political pushback against federal judicial power and the sovereign-states vs. sovereign-people debate

Midnight judges / 1801 Judiciary Act

Lame-duck Federalist Congress rushed through (after losing in 1800) an act expanding federal courts; Adams appointed Marshall Chief Justice; Jefferson called it ‘fraudulent’ and an attack on ‘all the works of republicanism’

Rise of partianship fed fears about the judiciary. Marshall’s brother failed to deliver Marbury’s commission; Jefferson had Madison withhold it. The dispute led to Marbury v. Madison

Marbury v. Madison (1803)

Court held that Marbury had a legal right to his commission (signed, five-year office) but lacked the power to issue mandamus because the Judiciary Act’s grant was unconstitutional; it established the Constitution’s supremacy and the Court’s role in interpreting it

Not the origin of judicial review (already practiced vertically); it marks a shift to horizontal review of Congress. Writ of mandamus = court order compelling a public official to act

Departmentalism (Jefferson)

Each department is independent and has an equal right to decide constitutional meaning in its own sphere; giving judges sole authority would make the judiciary ‘a despotic branch’

From Jefferson’s letters to Abigail Adams: the ‘return’ of the early departmental view after Marbury. Contrast with Federalist confidence in courts

Tenth Amendment

Reserves powers not delegated to the U.S. or prohibited to the states to the states or the people; Republicans read it as requiring strict construction; Federalists note it omits ‘expressly’

Jefferson called it the foundation of the Constitution. It fuels the fight over enumerated powers

Strict construction (Jefferson/Madison)

Reading the Constitution as granting limited, enumerated powers; amend when more are needed; a written constitution shouldn’t be turned into ‘a blank paper by construction’

Examples: commerce = only transporting goods across state lines; no canals unless in Art. 1, Sec. 8; taxes only for revenue

Liberal (broad) construction (Federalists/Marshall)

Reading powers to allow means that advance enumerated ends; a narrow view would ‘criple the government’; Congress can regulate activities affecting interstate commerce, build canals, and tax to discourage behavior

Marshall: narrow construction denies the words import, and that fits the instrument’s general views and objects

Necessary and proper clause (Art. 1, Sec. 8)

Gives Congress power to make all laws necessary and proper to execute its enumerated and other constitutional powers; source of implied powers and central to the Bank debate

Central dispute: does ‘necessary’ mean ‘indispensable’ (Jefferson: not just ‘convenient ’; Madison: no additional powers) or ‘useful/convienent/essential’ (Hamilton, Marshall)?

First Bank of the United States (1793 debate)

Hamilton’s proposed national bank that Madison and Jefferson opposed as unauthorized; Washington let it become law

Madison’s and Jefferson’s views on the Bank

Madison: no power to incorporate a bank is found; at most ‘convenient,’ alternatives exist (advance taxes, loans). Jefferson: rooted in the 10th Amendment; stepping past enumerated powers creates ‘a boundless field of power ’; only ‘necessary,’ not ‘convenient,’ means allowed

Both hold that Necessary and Proper adds no powers beyond those enumerated

Hamilton’s view on the Bank

Every government power is sovereign and includes the means to reach its ends; the test is whether the means have a natural relation to lawful ends. Jefferson is wrong that ‘necessary’ means needful or requisite

Feeds the liberal construction position later adopted by Marshall in McCulloch

McCulloch v. Maryland (1819)

Congress may charter a bank as a ‘necessary and proper’ means (necessary = convenient, useful, or essential), and Maryland may not tax it because states cannot tax the Union

Facts: McCulloch, a cashier at the Baltimore branch, refused Maryland’s tax on out-of-state bank notes. Marshall: no explicit bank power, but enumerated powers over taxes, borrowing, commerce, war, and armies mean the ‘sword and purse’ were entrusted to the government; the first Congress had exercised the power; Congress may act in the manner ‘most beneficial to the people’

Enumerated vs. implied powers

Enumerated = powers listed in the Constitution (e.g., Art. I, Sec. 8: tax, borrow, regulate commerce, war, armies); implied = means reasonably related to executing them (Necessary and Proper)

Core of strict vs. liberal construction and the recurring question of how far Congress; should power extends: taxation, interstate commerce, army/navy, Necessary and Proper

Popular sovereignty vs. league of sovereign states

Framework question: Is the U.S. a league of sovereign states (Articles; Anti-Feds; Iredell in Chisholm) or a sovereign people (Virginia Plan; Wilson, Jay; Feds)?

Ties the Declaration (‘free and independent states’), the Convention, Chisholm, and McCulloch together

Federalist vs. Anti-Federalist positions on legislative power

Feds: Congress needs broad discretion over men, money, army, and navy for national security; Anti-feds: the proposed structure means states can’t control their own governments or protect citizens

Together with executive and judicial power, these were the three open questions carried into the early national era, now fought politically

Justice Chase in Calder

Said 'vital principles in our free republican government' can determine and overrule an apparent and flagrant abuse of legislative power

Chase supports using republican principles and natural justice as a check on legislatures. Contrast with Iredell

Justice Iredell in Calder

Warned that letting judges void acts for violating natural justice is dangerous because 'the ideas of natural justice are regulated by no fixed standard'

He is skeptical of 'speculative jurists' who say acts against natural justice are void. His worry: without a fixed standard, judges could substitute their own views

Legislative power debate (Feds. vs. Anti-Feds)

Federalists: Congress needs unlimited discretion for requisitions of men and money and to govern and direct the army and navy for national security; Anti-Federalists: the proposed structure means states cannot control their own governments and protect citizens

Guiding question: does the national legislature accomplish the Union's essential objects, or undermine peace, liberty, and safety?

Narrow vs. liberal reading of the commerce power

Narrow: only the actual act of transporting goods across state lines; Liberal: any activity affecting commerce in more than one state

Example of defining a constitutional power's scope

Narrow vs. liberal reading of implied powers

Narrow: no canals unless in Art. I, Sec. 8; Liberal: Congress can build canals as a means of furthering another explicit power

Shows how implied powers turn on whether the means connect to enumerated ends

Narrow vs. liberal reading of legislative purposes (taxing power)

Narrow: taxes only to raise revenue; Liberal: Congress may tax to prohibit behavior (e.g., drugs, cigarettes)

Third illustration: does Congress's purpose have to match the power's text?

First National Bank debate (background)

Hamilton proposed the Bank; it became controversial but Washington allowed it to become law, a turn from constitutional theory to practice,

Madison’s view on the Bank

An interpretation that destroys the Government's characteristics cannot be just; no power to incorporate a bank is in the Constitution; a bank is at most convenient, not necessary (taxes in advance or loans could substitute); Necessary and Proper adds no powers beyond those enumerated

Madison uses strict construction and the availability of alternatives to argue the Bank is not 'necessary.'

Jefferson’s view on the Bank

The Tenth Amendment is the Constitution's foundation; going a single step past enumerated powers opens 'a boundless field of power'; a bank differs from taxing, borrowing, and commerce; only 'necessary' (not merely 'convenient') means are allowed

Jefferson ties the argument to the Tenth Amendment and to a strict reading of 'necessary.'

Hamilton’s view on the Bank

Every government power is by nature sovereign and includes the means to attain its ends; the only test is whether the means have a natural relation to acknowledged objects or lawful ends; Jefferson is wrong that 'necessary' means needful or requisite

Hamilton's implied powers theory, later echoed by Marshall.

McCulloch v. Maryland: facts

McCulloch, cashier at the Baltimore branch of the Bank of the United States, refused to pay Maryland's tax on notes of banks not incorporated by Maryland, and Maryland sued

The tax hit the federal bank, raising both federal power and state taxation questions.

McCulloch Question 1: Can Congress incorporate a bank?

Yes; the first Congress exercised it; the Constitution doesn't mention a bank but enumerates powers to tax, borrow, regulate commerce, wage war, and raise armies and navies; we entrusted 'the sword and purse' to government

Marshall admits no explicit bank power but reasons from the enumerated ends to the means.

Marshall's reading of 'necessary' in McCulloch

Necessary means 'convenient,' 'useful,' or 'essential'; limits on government are admitted, but Congress may act to perform 'the high duties assigned to it in the manner most beneficial to the people'

This flexible reading rejects Jefferson's strict 'necessary' and adopts Hamilton's approach.

McCulloch Question 2: Can Maryland tax the bank?

No; a state has no right to tax the union, so the tax is unconstitutional

Establishes federal supremacy over state interference with legitimate federal institutions.

Who holds the final say on the Constitution? (recurring theme)

Courts (Marbury, Chisholm, McCulloch; Federalist 78) vs. each department deciding for itself (Jefferson's departmentalism) vs. states' sovereignty concerns (Georgia in Chisholm; Maryland in McCulloch)

Ware v. Hylton (1796)

Facts: Jones (a British creditor) loaned money to a Virginian before the Revolution, and it was never repaid. Virginia then passed a law letting debts to British creditors be paid into the state treasury, so Jones would have to ask the state for his money

Holding: State laws contrary to a treaty must be disregarded

What did the Treaty of Paris say about the debts? → Creditors of both countries should meet “no lawful impediment” in recovering bona fide debts

What was the timing problem? → The law was passed after the Declaration of Independence but before the Articles of Confederation were ratified

Could Virginia condiscate the debts? → Yes. Virginia’s legislature held that power unless it had been delegated to Congress

Why did Virginia have that power? → Powers Congress exercised before the Confederation belonged to the people, the same source as state legislative power. Congress lacked full war powers because it relied on the states to raise money

Does the Treaty of Paris nullify the law? → Yes

What was the Supremacy Clause reasoning? → The people have the power to make state constitutions yield to the general government and to treaties. Otherwise, a small part of the U.S. could defeat the will of the whole

The Louisiana Purchase

What does the Treaty Clause say? → The President makes treaties “by and with the Advice and Consent of the Senate,” with two-thirds of the Senators present concurring

What is the structural point of the Treaty Clause? → It sits in Article II (executive) but calls for Article I (Senate) oversight

What did France offer? → All French territory in North America for $15 million

Why did Jefferson hesitate? → He doubted the legality and considered a constitutional amendment

Why did he submit the treaty to the Senate instead? → Napoleon might rescind the offer

What did the Feds say? → They called Republicans hypocrites, and they worried new states would dilute their influence in Congress

What did Republicans claim as the source of the power? → Both the war power and the treaty power

What irony does this raise? → Republicans (strict constructionists) used broad construction, so the roles of the parties reversed

What were the three realistic options for dealing with tribes?

1. Draw state boundaries to exclude tribal nations

2. Stop making treaties and eventually absorb tribes into states

3. Respect treaties and keep a bilateral approach

Why did tribal relations become a federal matter?

The U.S. made many treaties in the early republic, and states and territories flagrantly ignored them

Where are tribes named in Article I?

Art. I, Sec. 2: “Excluding Indians not taxed”, on apportionment and taxes

Art. I, Sec. 8: The Indian Commerce ClauseWhich

Which clause drives most tribal litigation?

The Indian Commerce Clause (Art. I, Sec. 8)

What is tribal sovereignty?

Tribes are preexisting sovereigns whose existence doesn’t depend on the Constitution or on federal or state governments. It is not mentioned explicitly in the Constitution

How could tribes act at the time of adoption?

As independent sovereigns, they were free to align with any sovereign or remain nonaligned

Who holds foreign affairs and the power over U.S. property?

The federal government

How are unrelated constitutional provisions used for tribal issues?

They are cited as justification for new problems that arise with tribes, even though tribal sovereignty isn’t mentioned

The Marshall Trilogy

Three early cases that outline American Indian law: Johnson v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia

Johnson v. M’Intosh (1823)

Facts: A land dispute between two white men. Johnson bought land from the Piankeshaw tribe before the Revolution, and M’Intosh claimed the same land via a U.S. government grant after it

Who won? → M’Intosh

What rights do Native Americans have under this case? → Only occupancy rights

What is the doctrine of discovery? →The government that “discovers” land holds title against all other European nations

Who can sell or transfer title after discovery? → Only the U.S.

Cherokee Nation v. Georgia

Issue: Are tribes “foreign states” under Art. III, Sec. 2?

Answer: No, but stribes have sovereignty

What are the Cherokee? → A distinct political society, capable of making peace and war and taking responsibility for violence by its members

What can the U.S. do regarding tribal land? → Take title to it independently

Worcester v. Georgia (1832)

Who was Worcester? → A white missionary living on Cherokee land

Why was he arrested? → He violated a Georgia law requiring a license for white persons living on Cherokee land

What was his argument? → The law conflicts with federal treaties with the Cherokee

Was his conviction valid? → No

Reasoning: A state’s extraterritorial power is limited to its own subjects. Treaties and laws treat Indian territory as completely separate from the states. The Cherokee Nation is a distinct community with its own territory in which Georgia’s laws have no force

Where does Locke show up?

The Declaration of Independence and the Northwest Ordinance

Where does civic republicanism show up?

The Articles of Confederation and the Northwest Ordinance

Why did the Articles fail?

No way to collect taxes, no regulation of interstate commerce, and states distrusted each other

What did the delegates debate?

The national veto, republic size, executive power, and checks and balances vs. separation of powers

Pure separation of powers vs. checks and balances

Separation: each branch performs only its own function

Checks and balances: each branch can interfere with the others (vetoes, confirmations)

How did the parties split?

Feds favored broad constitutional powers

Jeffersonian Republicans favored limited government

What did the Alien Act do?

Expanded presidential power to detail and deport aliens and increased citizenship residency requirements

What did the Sedition Act do?

Banned speech and writing critical of the Federalist government, which shut down many Jeffersonian newspapers

Virginia Resolution’s key claims

The Constitution is a compact of “limited enumerated powers.” States have the right and duty “to interpose for arresting the progress of the evil.” The Acts exercise a power not delegated

Kentucky Resolution’s key claims

Each state acceded as an integral party. The federal government is not the exclusive or final judge of its own powers. Each party has an equal right to seek redress. The 10th Amendment is cited. The Acts are “void and of no force”

What is the logical hole in Jefferson’s argument about the Kentucky and Virginia Resolutions?

If the federal government can’t judge its own case, why should states judge theirs?

What did the resolutions inspire?

The first proponents of state sovereignty (state courts as the proper constitutional authorities)

Article III, Section 1

Judicial power is vested in one Supreme Court and inferior courts that Congress creates. Judges serve during good behavior, and their pay can’t be diminished

Article III, Section 2

Judicial power extends to “all Cases” arising under the Constitution, laws, and treaties, and to ambassadors, admiralty, U.S. party cases, and state and citizen disputes. The Supreme Court has original jurisdiction over ambassador cases and cases where a state is a party, and appellate jurisdiction otherwise

What is federal judicial review of state law?

Federal courts declaring state laws unconstitutional

What is the Judiciary Act of 1789, Section 25?

It empowers SCOTUS to hear appeals from state supreme courts when federal treaty or constitutional rights are at issue

What are 2 objections to Section 25?

If the Constitution is a pact among sovereign states, state courts should decide consistency

Even if federal courts can rule state laws unconstitutional, can they overturn state court rulings?

Martin v. Hunter’s Lessee (1816)

Facts: Denny Martin inherited Lord Fairfax’s Virginia land. Virginia confiscated it and sold it to David Hunter. Martin cited the 1794 treaty with Britain. The Virginia Court of Appeals ruled for Hunter (1810), and the Supreme Court ruled for Martin (1813) and issued a writ of mandamus

How did Virginia react? → It said SCOTUS couldn’t issue mandamus to it and declared Section 25 an unconstitutional infringement on states’ rights

Holding: Section 25 is constitutional (Story)

How should powers be read? → In their “natural and obvious sense,” neither unreasonably restricted nor enlarged

Why does the structure matter? → Powers are stated in general terms so the legislature can mold their exercise over time. If Congress vests judicial power, it extends to the utmost constitutional extent

Key Article III point: “The judicial power shall extend to all cases”: the cases, not the court, give jurisdiction. So SCOTUS can hear appeals from state courts

Main powers of Article I, Section 8

Taxes/duties/imposts/excises and general welfare

Borrow money

Regulate commerce (foreign, interstate, tribes)

Naturalization and bankruptcy

Coin money and set weights and measures

Punish counterfeiting

Post offices and roads

Patents and copyrights

Inferior corts

Piracy and offenses against the law of nations

Declare war and letters of marque

Raise armies

Navy

Rules for the forces

Call forth the militia

What is the catch-all clause?

Necessary and Proper: Congress may make all laws necessary and proper to execute the foregoing powers and others vested in the government

Gibbons v. Ogden

Facts: New York required a license for steamships. Ogden held a state license for NY-NJ routes. His ex-partner Gibbons ran a competing ferry under a federal coasting license. Ogden won in state court, and Gibbons appealed

Issue: Can a state regulate interstate commerce when Congress is regulating it?

Answer: No (Marshall)

How does Marshall interpret the Commerce Clause? → Like McCulloch: the Constitution doesn’t prescribe strict construction

Ogden’s definition of commerce: Only traffic: buying, selling, and exchanging commodities, not navigation

Marshall’s definition: Commerce is intercourse between states and includes navigation

What is the power to “regulate”? → To “prescribe the rule by which commerce is to be governed.” It is complete in itself, may be exercised to its utmost extent, and has no limits other than those in the Constitution

Elkinson v. Deliesseline (1823)

Negro Seamen’s Act: A SC law that jailed free Black sailors on arriving ships (and could sell them into slavery

Who promoted it? → The Denmark Vesey conspiracy (a planned uprising in Charleston)

Holding: The Act violates the Commerce Clause, which is an exclusively federal power (decided by a Justice riding circuit)

Reasoning: A state regulating a foreign ship’s passengers is a slippery slope

Mayor of New York v. Miln (1837)

What was the law? → NY required those bringing in immigrants “likely to become wards of the city” to pay a fee per person

Outcome: The Court again avoided deciding whether commerce power is exclusive

Dissent: Story: this clearly regulates commerce and should fail

Slavery and the Commerce Clause background

After the Louisiana Purchase, slaveholders moved north

Louisiana became a slave state, and the Missouri conflict led to the Missouri Compromise (1820)

Did SCOTUS ever rule on Congress suppressing the domestic slave trade?

No, never before the Civil War, though slavery was always in the background

Slavery and the Commerce Clause: Pro-slavery position

Enslaved people aren’t commerce, so Congress can’t regulate slavery under the Commerce Clause

Slavery and the Commerce Clause: Pro-abolition position

If enslaved people are property, the Commerce Clause lets Congress get rid of slavery federally

Groves v. Slaughter (1841)

What was the law? → A Mississippi constitutional provision banning the import of slaves as merchandise after May 1, 1833

What did the majority do? → Decided on unrelated grounds. Three concurrences addressed slavery

McLean: Slaves are persons in the Constitution so that states may regulate slavery freely, with no Commerce Clause issue

Taney: Same conclusion as McLean: states are free to regulate slavery

Baldwin: Slaves are commerce because they’re bought and sold, so Congress has exclusive power over the slave trade. States define property, but the Privileges and Immunities Clause (Art. IV) means a slave-state must admit traders from the other states. The Mississippi law is therefore unconstitutional

Cooley v. Board of Wardens (1852)

What was the law? → A Pennsylvania law requiring vessels entering Philadelphia to hire local pilots or pay a fee

Holding: Valid, with no Commerce Clause violation

Reasoning: Navigation is commerce. Federal power is exclusive over matters inherently national, while states have concurrent power over matters inherently local. Curtin worried states couldn’t regulate effectively as commerce grew

Dissent: McLean: concurrent power would cause a chaotic race to legislate

Is commerce power exclusive? (The four cases)

Elkinson: Exclusively federal

Gibbons: Broad federal power, but not declared exclusive, and states may act if no federal rule exists

Miln: Avoided the question

Cooley: Exclusive over national matters, concurrent over local ones