CONSTITUTIONAL LAW
Fall 2006, W.B. Fisch
Assignment #7

Ch. 4  THE SCOPE OF NATIONAL POWER (early developments)

  • Proceedings of the Constitutional Convention, pp. 127-133
    • Transition from general definition of federal regulatory power (Virginia Plan) to detailed enumeration
    • What is the significance of this transition? How should it impact on the interpretation of the enumerated powers?
  • MCCULLOCH V. MARYLAND, p. 134 (1819). What constitutional issues are presented here?
    • power of Congress to create a central bank
      • what arguments against such power?
        • states as sovereign creators of the national government
        • no explicit authority in the constitution to create a bank
        • "necessary and proper" means "indispensible"
      • how does Marshall meet these arguments?
    • power of the state to tax notes issued by the bank
      • what arguments against the state tax?
      • why doesn't the analogy to federal tax on states work?
  • Methods of interpretation in McCulloch:
    • "(W)e must never forget that it is a constitution we are expounding."(p. 137, emphasis mine) What does that mean? )(Consider the entire paragraph that ends in this sentence!
      • compare McCulloch with Marbury
      • distinguish between power-granting and power-limiting clauses?
    • Necessary and proper clause and "implied powers "
      • Does the opinion in fact recognize "implied powers"?
      • What is the significance of the distinction between "means" and "ends"?
    • what role does the concept of representation play in McCulloch?
  • Power of Congress to Build and Maintain "Infrastructure" (Roads and Canals)
    • Did Madison, p. 143, correctly interpret the Constitution in vetoing the Improvements Bill?
      • Commerce Power, after McCulloch?
      • Spending Power?
    • Is there room for independent judgment on his part in making that decision?
  • The Other Issue in McCulloch (State Tax): A Modern Application
    • U.S. Term Limits v. Thornton, p. 144 (1995): state law imposing Congressional term limits
      • does the decision follow from Powell v. McCormick?  How would one distinguish the two cases?
      • does the decision follow from McCulloch?  does it conflict with McCulloch?
    • Cook v. Gralike, p. 146 (2001): state law requiring ballots to show candidates' positions on term limits
      • if the states can't impose term limits, can they force candidates to take a position?
      • is this particular measure even-handed with respect to what position to take?  Does it matter?