Constitutional Law (Yoshino, Fall 2009) Table of Contents

Commerce Clause

1. 
   Federalism
   
   1. 
      Relationship between fed gov and state gov
      
   2. 
      Story of error (tyranny under King George), overcorrection (post-Revolution, hesitant to give any power to centralized gov), then equilibrium (trying to balance out)
      
   3. 
      Five values of Federalism
      
      1. 
         Promotion of Efficiency
         
         1. 
            Issues of scale, some entities better equipped to address
            
         2. 
            States have own self interests, better for the nat’l gov to take a big picture view. Prevent a prisoner’s dilemma
            
      2. 
         Promotion of Individual Choice
         
         1. 
            If states have own solutions, ensures more people’s preferences are satisfied (geo and cultural preferences). More options.
            
      3. 
         Promotion of Experimentation
         
      4. 
         Promotion of Citizen Participation
         
         1. 
            Allow citizens to participate at the local level (not necessarily about federalism as about localism)
            
      5. 
         Prevention of Tyranny
         
         1. 
            Power in two distinct govs, less fear of tyranny.
            

1. McCulloch v. Maryland (1819) pg 38 [Marshal]

4. 
   Question 1: Does Cong have the power to create a national bank?
   
   1. 
      Yes.
      
5. 
   Question 2: If so, does a state have the power to tax it?
   
   1. 
      No.
      
   2. 
      Would essentially give it the power to destroy the bank. Also like taxing its sister states, since the bank draws on all states.
      
      1. 
         Structural modality- not the structure the C outlines.
         
6. 
   Articles that give power to the states only say what they can’t do, not what they can- idea that the residual power lies in the states.
   
7. 
   The limitation on Cong’s power is enumeration- their powers are limited to those enumerated on the C.
   
   1. 
      But a bank isn’t enumerated- how do we get to the answer that Cong does have the power?
      
8. 
   Ends up saying the power lies in the Necessary and Proper Clause
   
   1. 
      Bank as a means to enumerated end
      
      1. 
         But doesn’t say which end- not sure which power he is attaching to.
         
         1. 
            Just saying if there is a power, then N&P attaches to it, giving it broad discretion to be enforced.
            
         2. 
            (later attaches to the Commerce Clause)
            
   2. 
      Not using necessary as ‘indispensable’ – more flexible than that
      
      1. 
         Intra-textualism- Art I § 10 says “absolutely necessary’- does this create degrees of necessity (whereas, like ‘pregnant’, you’d think of it as a yes or no question)
         
9. 
   “Let the end be legitimate, let it be within the scope of the C, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the C, are constitutional.”
   
10. 
    Though the SC said in Marbury that they have the power to strike down an act of Cong, it isn’t until decades later that they actually do.
    

1. Gibbons v. Ogden (1824) pg 168

11. 
    ∆ operates a ferry from NY to NJ, has a state license (monopoly) to do so. π starts one with a federal license. Lawsuit.
    
12. 
    Held: Federal license trumps.
    
    1. 
       Marshall- Fed statute gives π an exclusive license, totally trumps the state license. Simple pre-emption issue.
       
       1. 
          Saying only fails because it conflicts with the federal license. Johson concurrence saying even if there wasn’t a federal licensing system, still can’t legislate in that area.
          
    2. 
       Johnson- Under the C, Cong’s power to regulate interstate commerce is exclusive- state can’t have a power to grant interstate monopolies- can’t create a statute allowing it to do so.
       
       1. 
          Dormant Commerce Clause- even when Cong is silent, states are not allowed to trammel on the right.
          
          1. 
             Only a concurrence here, later becomes good law.