Untitled Flashcards Set

1. Appeals to Text

• What it means: Looking at the actual words of the Constitution.

• In McCulloch: Chief Justice Marshall examined the Necessary and Proper Clause (Article I, Section 8, Clause 18), which gives Congress power to make all laws necessary and proper to carry out its enumerated powers.

• He read the text broadly — necessary does not mean absolutely essential; it means convenient or useful.

2. Constitutional Structure

• What it means: Looking at the overall design of the Constitution — how powers are divided between branches and between state and federal governments.

• In McCulloch: Marshall stressed that the federal government is supreme within its sphere, and the Constitution gives it implied powers to effectively govern.

• Federal supremacy (Article VI) was a key structural argument: If states could tax the federal government, they could destroy it — violating the basic structure of national supremacy.

3. Prudence (or Consequences)

• What it means: Considering the practical effects of different interpretations.

• In McCulloch: Marshall argued that limiting Congress to powers explicitly listed would cripple the federal government — it wouldn’t be able to adapt to changing circumstances.

• Allowing implied powers was prudent — it allowed the Constitution to function over time.

4. Purpose or Intention

• What it means: Asking what the framers intended — what was the purpose behind a given clause.

• In McCulloch: Marshall argued that the Constitution was intended to create a functional, adaptable national government, not to micromanage every power.

• This broad intention supports a broad reading of Congress’s powers.

5. Judicial Precedent

• What it means: Looking at past decisions for guidance.

• In McCulloch: This one is less prominent in this particular case (because it was relatively early in constitutional history), but Marshall was aware that the Court’s decision would set precedent for future federal power cases.

• The case itself became a foundational precedent for implied powers doctrine.

6. Past Practice and Inter-Branch Convention

• What it means: Looking at how the branches have interacted historically — what practices have been accepted over time.

• In McCulloch: Marshall pointed to the First Bank of the United States — which had been created earlier — to show that Congress had already exercised the power to create a national bank.

• If the government had historically exercised a power without controversy, that supported its legitimacy.

7. National Ethos and Political Tradition

• What it means: Interpreting the Constitution in light of American values and ideals — such as national unity, effective government, and democratic governance.

• In McCulloch: Marshall leaned into the ethos of a strong national government, capable of acting on behalf of the whole country.

• The national ethos favored a Constitution that enabled progress and adaptation, not one that tied the government’s hands.

• 2. The kinds of policies and institutions that fall under the umbrella term “police power”

  • Police power refers to the states' authority (under the 10th Amendment) to regulate for the health, safety, welfare, and morals of their populations.

  • Examples: Public health mandates, zoning laws, building codes, criminal laws, licensing, sanitation, and quarantine laws.

  • Important note: Police power belongs to the states, not the federal government.

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  3. Parts of the Constitution that pertain to preparation for war and defense

  There are several relevant provisions, especially in Article I and Article II:

  • Article I, Section 8 – Lists powers of Congress, including:

    • Declare war

    • Raise and support armies

    • Provide and maintain a navy

    • Call forth the militia

    • Organize, arm, and discipline the militia

  • Article II, Section 2 – Makes the President Commander in Chief of the armed forces.

  • Also relevant: Militia Clause, which discusses federal control over state militias.

  • Be prepared to discuss both the division of war powers and how those powers were interpreted over time (e.g., War Powers Resolution).

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  4. The term “commerce” and examples from assigned cases

  • Commerce – Not defined explicitly in the Constitution, but central to Article I, Section 8, Clause 3 (the Commerce Clause), which gives Congress the power to regulate commerce among the states.

  • Cases you may have covered could include:

    • Gibbons v. Ogden (1824) – Defined commerce broadly, including navigation.

    • Wickard v. Filburn (1942) – Extended commerce power to include local activities that affect interstate commerce.

    • United States v. Lopez (1995) – Limited Congress’s commerce power (first time in decades), ruling that gun-free school zones were not sufficiently tied to interstate commerce.

  • Be ready to explain how the definition of commerce has expanded and contracted over time, depending on the Court’s interpretation.

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  5. The “Constitution of Settlement” and examples (See Week 2 Content)

  • This refers to the parts of the Constitution that are taken as foundational and stable, rather than subject to constant litigation or reinterpretation.

  • Examples:

    • The basic structure of Congress (bicameral legislature).

    • Fixed terms for federal offices (President serves 4 years, Senators 6, Representatives 2).

    • States' equal representation in the Senate.

    • Electoral College process (though how states allocate electors can vary).

  • These are the “hard-wired” parts of the Constitution, contrasted with more flexible parts subject to judicial interpretation (like the Commerce Clause or Due Process).

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  6. Article I, § 9 and § 10 – Restraints on Federal and State Powers

  • Article I, Section 9 – Limits Congress/federal power. Examples:

    • No suspension of habeas corpus (except in emergencies).

    • No ex post facto laws.

    • No titles of nobility.

    • Limits on taxing exports.

  • Article I, Section 10 – Limits state powers. Examples:

    • No treaties by states.

    • No coining money.

    • No ex post facto laws.

    • No titles of nobility.

    • No taxing imports/exports without congressional approval.

  Common Elements:

  • Both sections prohibit ex post facto laws and bills of attainder.

  • Both restrict granting titles of nobility.

  • Both reflect concerns about corruption, overreach, and protecting individual rights.

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  7. Treaties and the way they come about (See Article II)

  • Article II, Section 2 gives the President the power to make treaties, but only with the advice and consent of the Senate (requires 2/3 Senate approval).

  • Treaties are binding law under the Supremacy Clause (Article VI), meaning they trump state laws if there’s a conflict.

  • Be ready to explain the treaty-making process and how treaties relate to federalism (sometimes limiting state powers) and separation of powers (shared between executive and legislative branches).