Constitutional Law Final

Argument that federalism is a contract with the people

This comes from the preamble of the constitution which states “We the People”

Argument that federalism is a contract with the states

Advocates point to the Art VII which premises ratification on the approval of the nine states

The 10th amendment

Powers not delegated to fed are reserved to people or the states

11th amendment/ Sovereign Immunity

Restricts the ability of federal courts to hear suits of states unless the state consents to the lawsuit. Cases having to do with it: Chisolm v Georgia, Seminole Tribe v. Florida, Alden v Maine

Cooperative Federalism

shared powers in theory (between the states and fed gov) but federal government tends to be supreme. N&P clause is to be read expansively. People, not states, empower the federal government.

Dual federalism

States and federal gov are more equal. The 10th amendment has more weight. Here the states empower the federal government not the people.

3/5ths clause

black people are considered 3/5ths of a person (Dred Scott v Sanford)

Collective Action Problems

hard to get a group of people to act in a way that benefits all the members of the group if people are able to freeride. (case is new york v US)

this is the notion that certain things cannot be achieved by individuals or states

Powerful because the whole reason for establishing a new government was to create a national market for goods and to provide collective security.

Federal Preemption

Federal law always preempts state law. State law can supplement in areas where the federal government hasn’t decided. However, if there is a conflict between them federal law is chosen because it occupies a field. Not regulating is a regulatory choice in itself.

Slippery Slope Argument

The idea that allowing one instance will inevitably lead to more occurrences of the same type. Cases that are examples: Hammer v Dagenhart

Police power

Powers left to the states after enumerated powers are given to the federal government. Its the authority a state has to serve its citizens

Stream of Commerce Doctrine

Federal regulation of interstate commerce takes hold from the point of a good’s origin to it’s termination. (from when it enters until when its sold)

Great depression and the New Deal

Major economic boom in the 20s that caused the stock market to increase along with the development of large monopolies. Laissez faire judges and presidents. Increased unemployment during crash, heavier regulation to fix it. Instead of court packing plan. the court stops striking down FDR’s laws.

Selected Exclusiveness

Some areas of interstate commerce are only controlled by Congress. (specifically those that requite national uniformity.) States can regulate whaat doesn’t need to be uniform so long as Congress hasn’t regulated it already. Comes from Cooley v Board of Wardens

Dormant Commerce Clase aka Negative Commerce Clause

Congress’ power to regulate commerce is dormant and when they choose not to regulate something it doesnt open it up for the states to do so.

Incidental Regulation

If a state regulates with it’s police powers for the safety of the cititizens and it affects state commerce it is allowed. (Sc State high Dep’t v Barnwell Bro)

1937

The court changes how it interprets the commerce clause due to the Great depression.

The Power to Tax and Spend

Congress’ power to tax, have imports/ tariffs (collect a duty on goods entering the country), excise (taxing goods and services- any good that isn’t real property/ land). This must be done for the general welfare

Limits on the tax and spending powers

Geographical uniformity and direct taxes (tax rates should be the same/ proportional to the population across all states), state ability to tax imports and exports is eliminated.

The 16th amendment

Grants Congress the power to levy and collect income taxes without needing to be apportioned among the states based on population. This was designed specifically to overturn Pollock v. Farmer’s Loan & Trust. People begin to believe the court has been captured by the rich. Taxes become apportioned based on wealth not population

Economic Substantive Due Process

Mattered most to those who challenged attempts to regulate economic activity. 5th and 14th amendments. States cannot impose regulation.

Takings Clause/ Eminent Domain

A part of the 5th amendment that states the government cannot take someone’s property without compensating them. The problem is what is public use, a taking, and just compensation.

The Great Test

1) Is the end legitimate

2) is the means appropriate (does it make sense with the end?)

3) is the means prohibited (by the constitution)