Monday, September 18, 2006


Analysis of Powers Enumerated to Congress

It is best to read this blog from the oldest post to this, the newest, so scroll down and read the oldest post first, as each one builds upon the next.

You may recall earlier the debate between the Enumerated Powers advocates and the Bill of Rights advocates. Regardless of who won, it is important to remember that the Congress may pass laws allowing it to: 1) Lay and collect taxes; 2) provide for the defense of the nation; 3) borrow money; 4) Control commerce with other countries and among the several states; 5) Control bankruptcy and immigration; 6) Set up post offices; 7) control intellectual property like patents and copyrights; 8) Declare war; and 9) Make laws “necessary and proper” for the carrying out of the above-mentioned powers. There are some other powers here and there given to Congress, but these are the most important for now.

When analyzing the constitutionality of any law, you would be wise to first look to see if the law is an exercise of one of these powers.

A. “Necessary and Proper”

That last one, number nine, is what worried a lot of the Enumerated Powers advocates and the Bill of Rights advocates. It is a “catch all” power that might just swallow the entire idea of Enumerated Powers if we don’t watch out. Just how far could the Congress go in passing laws “necessary and proper” to those listed above? We find out in the case of McCulloch v. Maryland (1819), 17 U.S. 316, at least as far as the early ideas of Enumerated Powers went.

1. McCulloch v. Maryland (1819), 17 U.S. 316.

a. The Facts Of The Case

Congress passed a law setting up a National Bank in 1816. This bank wasn’t too popular with many voters as there was a lot of corruption in it. Certain states also saw it as infringing upon the power of the States and passed laws at the state level designed to get rid of it. One of these laws was passed by Maryland, and purported to tax any bank in Maryland’s jurisdiction which was not chartered by the Maryland legislature. The U.S. Bank’s cashier, Mr. McCullogh, would not pay the tax, and so Maryland sued him in the U.S. Supreme Court.

b. The Legal Arguments

Maryland argued that the Congress got its power to act from the states. But Justice Marshall disagreed and said that the power came directly from the people, not from the states. With that argument by the way side, the first thing that Justice Marshall had to determine was where the Congress got the power to set up a bank. He ruled that Article I, Section 8, allowed Congress to pass laws to regulate interstate commerce. While the power to set up a bank was not expressly listed, it existed implicitly from the express grant in the Interstate Commerce Clause.

The creation of the bank was necessary and proper for achieving the aim of regulating Interstate Commerce. Justice Marshall ruled that the word “necessary” did not mean completely necessary. Congress need only go about accomplishing one of its enumerated powers in a manner “rationally related” to the achievement of that enumerated power, then that was all that was necessary.

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Limits Upon Judicial Power

The Concept of Separation of Powers requires that the Judiciary not overly involve itself in the affairs of the Executive and Legislative Branches. The concept also requires that the federal judiciary not overly involve itself in questions which are purely matters of state law. This is known as concerns of Federalism. Some limitations upon the courts are imposed by the Constitution, and through the Constitution, by acts of Congress. Other limitations arise from the Court’s own judicial restraint, a tradition of not wanting to get involved in certain controversies.

A. Congressional Statutes Regulating Judicial Power

As noted above, the Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court. It did so in the Judiciary Act of 1789, and did so again in 1867. In doing so, it granted to all federal courts the power to issue Writs of Habeas Corpus to anyone whose liberty had been unconstitutionally restrained. The amendment also allowed appeals from the trial level all the way to the U.S. Supreme Court.

1. Ex Parte McCardle 74 U.S. (7 Wall.) 506, 19 L. Ed. 264 (1869)

a. The Facts Of The Case

McCardle was a Mississippi newpaperman who was being held by the military for publishing certain articles the military deemed slanderous and incendiary. McCardle sought a Writ of Habeas Corpus from the federal courts, but was denied. His case eventually came before the U.S. Supreme Court. After the hearing there, but before the Decision, the Congress passed a new law taking away the power of the Supreme Court to hear appeals of habeas corpus cases.

As one might note from the dates involved, this case took place amidst the backdrop of Reconstruction after the Civil War. The military had been placed in charge of the government of many of the defeated southern states. The military didn’t cotton to the opinions expressed by Mr. McCardle in his newspaper and locked him up because of it (while one might wonder what became of the First Amendment arguments in this matter, it should be noted that the First Amendment does not cover libelous speech nor speech which presents a clear and present danger to the public--such as “fighting words” or yelling “fire” in a crowded theater).

b. The Legal Arguments

The Court first noted that the powers of judicial review and appellate jurisdiction are not conferred by any act of Congress, but rather by the Constitution itself. However, the Constitution (Article III, Section 2) allows the Congress to regulate and limit the appellate jurisdiction of the Supreme Court. In this case, the Congress clearly and expressly removed the power of the Supreme Court to hear Habeas Corpus cases on appeal. Because of this, Justice Chase wrote:

"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

We should take from this case the fact that the Congress has the power to limit the Supreme Court’s appellate jurisdiction by simply passing a statute. The only limitation upon this power would come through some other aspect of the Constitution. For instance, the Congress could not pass a law limiting the Supreme Court’s power to hear appeals cases involving only men or only blacks, or only jews, as this would violate the 14th Amendment's Equal Protection Clause.

B. Judicial Restraint

1. Case or Controversy Requirements

a. No Advisory Opinions

In order for a court to hear a case, there must be an actual case or controversy arising. For instance, if the Congress intended to impose a law regulating the sale of rodents, it could not first ask the Supreme Court to render an advisory opinion on whether that hypothetical law would be constitutional. Only persons actually aggrieved under a law would be permitted to argue a case.

1) Muskrat v. United States (1911), 219 U.S. 346

A) The Facts Of The Case

In 1902, Congress passed a law giving certain Cherokee tribal lands to certain tribal members. In 1904 and 1906, Congress amended the 1902 law to increase the number of persons given the lands. In 1907, Congress passed a law allowing David Muskrat and a few others to bring suit in the Court of Claims to challenge the validity of the 1904 and 1906 Amendments.

B) The Legal Arguments

Justice Day wrote that:

It is therefore evident that there is neither more nor less in this procedure than an attempt to provide for a judicial determination, final in this court, of the constitutional validity of an Act of Congress. Is such a determination within the judicial power conferred by the Constitution? … We think it is not… The exercise of this, the most important and delicate duty of this court is not given to it as a body with revisory power over the action of Congress, but because the rights of the litigants in justiciable controversies require the court to choose between the fundamental law and a law purporting to be enacted within constitutional authority… It is true that the United States is made a defendant to this action, but it has no interest adverse to the claimants… The whole purpose of the law is to determine the constitutional validity of this class of legislation….

We should take from this case the lesson that the Supreme Court will not issue advisory opinions at the request of anyone, not even Congress or the Executive Branch. There have been times when President Washington’s secretary of State, Thomas Jefferson, requested that the Supreme Court issue advisory opinions on the construction and interpretation of certain treaties to be signed by the government. The Supreme Court regularly declined to offer these opinions, replying instead that the Executive Branch might be better served by getting its cabinet together and discussing the matter amongst themselves.

2. Standing Requirements

Another area where the Courts have exercised Judicial Self Restraint comes when considering issues relating to the Standing of a party to make an argument. Before you bring a case before the court, you must have standing to do so. There are two ways to have standing, an injury in fact, and secondly, whether or not a party has alleged a personal stake in the outcome sufficient to assure concrete adversity which sharpens the presentations of the issues. When one decides standing issues, the first thing you should ask is “Is the proper person raising this particular issue?”

There are three reasons why courts look at Standing issues. First, it is argued that without being personally aggrieved, the Party in the case might not be sufficiently hacked off enough to assert his case in its best possible light.

Secondly, Courts lack the Constitutional authority to address any matter which is not a “case of controversy.” It is argued that without Standing, there is no “case or controversy.”

Thirdly, Courts have long followed the concept of judicial restraint, choosing not to get involved in matters where the parties do not have standing. Wrapped up in the standing issue is the separation of powers argument. The Courts should not intrude into the other branches of government unless there is a harm so grievous that it is necessary.

To look at the issue of standing in its simplest context, if someone trespassed upon your next door neighbor’s land, could you sue the trespasser on your neighbor’s behalf? The answer is always in the negative. You won’t have any damages because you do not own the land of your neighbor.

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Ways to Reach the United States Supreme Court

There are three ways that a case can reach the United States Supreme Court. The first is by original jurisdiction. The second and third are Appeal and Certiorari.

A. Original Jurisdiction

If a case has original jurisdiction in the Supreme Court, that means that the case starts there. This means that it is filed with the United States Supreme Court and nowhere else.

Most cases start out in the lower level courts and work their way up, but for a few select types of cases, these must be brought directly to the U.S. Supreme Court. Article III, Section 2 states that the Supreme Court shall have original jurisdiction in all matters “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” One can readily imagine that not too many cases start this way.

Remember that in the discussion below about the case of Marbury v. Madison, Marbury filed his case directly with the United States Supreme Court, even though his case did not fit into these categories, and this was his undoing.

The other way a case can come to the U.S. Supreme Court is through the process of appeals. This is called Appellate Jurisdiction. Appeal and Certiorari are the way that most cases come to the U.S. Supreme Court today. Article III, Section 2 also provides that the Supreme Court shall have “appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

B. Appeal v. Certiorari

There are two ways an appeal can reach the U.S. Supreme Court. The first is by direct appeal (either from federal or state courts), and the second is by the granting of a Writ of Certioriari.

1. Direct Appeal

Upon appeal, the Supreme Court must rule on the case whether the justices want to hear it or not. A case comes to the U.S. Supreme Court upon appeal from a state court if 1) a state's highest court has either a) upheld a state statute against a federal constitutional attack; or b) the state's highest court has ruled a federal law or treaty invalid.

As an example of the former: If the appellant argues his fourth amendment rights have been violated by a state statute allowing the police to enter his home without a warrant or probable cause, then the U.S. Supreme Court must hear this case if the Defendant's highest state court ruled the state law constitutional.

As an example of the latter: a plaintiff brought a suit under the federal Americans With Disabilities Act, and his state's highest court ruled the federal act invalid, then the U.S. Supreme Court must hear the case. The reason for this is that state courts are not likely to give the federal body of law the deference it requires.

If the Court does conclude that it has jurisdiction to hear the appeal, and that there is a substantial federal question involved, then the Court will enter an order in which it will “note probable jurisdiction.” The matter will then be set for submission of briefs and oral argument.

2. Certiorari

All other cases come to the U.S. Supreme Court via a Writ of Certioriari. A Writ of Certiorari is submitted to the Court by the appellant, and if four of the nine justices vote that the US Supreme Court should rule on it, then it will come before the Court. If a Writ of Certiorari doesn't get its four votes, then it is denied. While this would seem to indicate that the U.S. Supreme Court has affirmed the lower court's holding, the failure to grant a Writ of Certiorari has no precedential value in other cases.

So the important things to remember from this section are 1) that the Court must dispose of an appeal, but has discretion to grant Certiorari, 2) the test for whether an issue should come to the court through appeal or writ; 3) the test for whether an appeal will get a full hearing or a summary disposition and 4) that summary dispositions upon appeal have precedential value, while dispositions of Writs of Certiorari do not.

But the lines between Appeal and Certiorari are blurring a little. While the Supreme Court must dispose of any case coming to it upon appeal, it need not hold a formal hearing. The appellant must first file a “Jurisdictional Statement” (very similar to a Writ of Certiorari) outlining for the Supreme Court its jurisdiction to hear the case and secondly why the issues are substantial.

If the Court concludes that it has the proper appellate jurisdiction to hear the case, but that the issues raised are not substantial, then the Court will summarily dispose of the case. The wording will be that the appeal was dismissed “for want of a substantial federal question.” This outcome has precedential value, but only for other cases which have virtually identical issues.

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United States Supreme Court's Power to Review State Court Decisions

Just because the Supreme Court gave to itself the power to overrule acts of Congress as unconstitutional, this did not convince many state courts that the Supreme Court had the power to declare their rulings unconstitutional.

This issue was addressed in the case of Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 4 L.E. 97 (1816).

1. The Facts Of The Case

Before the Revolutionary War, an Englishman by the name of Lord Fairfax had been given about 300,000 acres of land in Virginia. When the Americans won the war, Lord Fairfax left the country and returned to England. There he died in 1781. He left his lands to his nephew, Mr. Martin. While the Revolutionary War was going on, the Virginia Legislature enacted a law forfeiting the lands of those not loyal to the new American government.

No one had yet declared the Fairfax lands forfeit under this Virginia law when, in 1783, the United States signed a Treaty with Great Britain preventing the confiscation of the land of British subjects. Two years after this treaty went into effect, a Virginia Court determined some of the Fairfax lands now owned by Mr. Martin to be forfeit.

After much litigation, the case reached the Virginia Court of Appeals in 1810 which ruled Mr. Martin’s lands forfeit. Mr. Martin appealed to the U.S. Supreme Court.

2. The Arguments

The Virginia Court argued that the Judiciary Act of 1789 (passed by Congress setting up many of the powers of the federal courts and giving the US Supreme Court the power to reverse state court opinions) was unconstitutional.

Back at the U.S. Supreme Court, Justice Story did not find this argument very compelling. Writing for the majority, he held that:

"The appellate power is not limited by the terms of the third article [of the U.S. Constitution] to any particular courts. The words are, ‘the judicial power (which includes the appellate power) shall extend to all cases,’ &c., and ‘in all other cases before mentioned the Supreme Court shall have appellate jurisdiction.’ It is the case then, and not the court, that gives the jurisdiction. If the judicial power extends to the case it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends."

Virginia did not argue that its laws were on an equal footing to Federal law and treaties. In fact it conceded the supremacy of federal law and treaties to its own. But for Virginia, this merely begged another question. Just because federal legislative acts were supreme, that did not mean that federal courts were.

What gave the U.S. Supreme Court authority to reverse the Virginia court ruling which held that there was no conflict between the Treaty and the forfeiture statute? Virginia argued that its own courts were just as competent as the U.S. Supreme Court to find a conflict between the Federal and State law and thus rule in favor of the Federal law or not.

The decision of the U.S. Supreme Court won out, however.

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Eakin v. Raub: The Case Against Judicial Review

Not everyone saw the ruling in Marbury v. Madison giving the Judiciary the power to overrule acts of Congress to be plainly correct. The ruling in Marbury was criticized in the dissent in the case of Eakin v. Raub, 12 S. & R. 330 (Pa. 1825).

Justice Gibson wrote that if the Congress must live within the power of the Constitution which creates it, then so must the Judiciary. He wrote that “It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver...” Of course, one might ask, who but the judiciary is best suited to do this important task? Gibson answered that it was best left to the people. He said:

"For these reasons, I am of the opinion, that it [the power to limit Congress] rests with the people, in whom full and absolute sovereign power resides, to correct abuses of legislation, by instructing their representatives to repeal the obnoxious act."

Those who agreed with Justice Gibson would also argue that if there were no judicial review to stop Congress from passing unconstitutional acts, then the Congress itself would be much more concerned with whether or not an act was constitutional when enacted. There would be no blithe arguments such as: "Well, let's go ahead and pass it and if it's unconstitutional, the Supreme Court will tell us."

Further, while Gibson realized that a group of professionals like the Courts, with their attendant lawyers on staff might be better suited to address such questions, he argued that the Judiciary itself isn't infallible. If it is wrong to have no remedy for an error by the legislature, why isn't it also wrong to have no remedy to an error by the Supreme Court?

Justice Marshall did not invent the concept of judicial review out of thin air. The concept has been traced all the way back to the English jurist, Lord Coke (pronounced “cook”) who famously stated in Dr. Bonham’s Case, 8 Co. 113b, 118a (1608):

"And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void; For when an act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."

This statement however, did not accurately describe the state of English law, either at the time, nor what it eventually became.

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Marbury v. Madison: The Origins of Judicial Review

Marbury v. Madison is a fascinating case, not just for its facts and history, but for the clever brokering of power resulting from it. By limiting its power in one narrow sense, the Supreme Court immeasurably gained (through the simple expedient of bootstrapping) a much broader power. Watch for the tricky sacrifice below.

a. The Facts of the Case

As the presidency of John Adams (our second president) drew to a close (his party having been soundly defeated both in the presidential elections and the Congressional elections), he sought to preserve his party’s political power beyond his term. In his last moments as president, he appointed several persons to vacant Federal Magistrate posts. These appointments would keep many of his friends in power well beyond the duration of his presidency.

One of these friends was William Marbury, appointed at the last minute as a Justice of the Peace in the District of Columbia. The outgoing Congress (most of which were soundly defeated as well) approved this appointment and Adams signed Marbury’s commission as one of his last acts.

But via an oversight, the commission paper was never sent out to Mr. Marbury. In fact, it was left in a desk at the White House, only to be discovered later. When the new president, Thomas Jefferson took over, he was naturally desirous of appointing his own political friend to Marbury's post. Jefferson's secretary of state, James Madison, thus refused to send out the paperwork on Marbury's commission when it was found.

Just before this political tempest, Congress had passed a law giving the Supreme Court the power to issue Writs of Mandamus to the President. A Writ of Mandamus is an order from a Court which compels a government official to do a thing. In this case, Marbury sued under this law, asking the Court to force Mr. Madison and Mr. Jefferson to send Marbury his commission papers so that he might take his rightful post.

Marbury sued, and filed his case directly to the United States Supreme Court, rather than through the lower courts.

The fact that Marbury filed his case directly with the Supreme Court is very important to the outcome of the case.

b. Clever Power Brokering

The new Congress and the new President Jefferson, did not want Marbury to get his post. They would happily go along with any result denying Marbury his post and giving it to the political friend of Jefferson. Neither the Executive branch nor the Legislative branch cared about the reasoning for a decision reaching this result. They just wanted the result.

The Supreme Court decided that the Constitution specifically enumerated the types of cases which could be filed directly with it. This is not true of appeals, since the Constitution says that the Congress can control what type of appeals the Supreme Court can hear.

Thus any law trying to give the U.S. Supreme Court additional powers to hear original cases was in contravention to the Constitution.

This result made the new Congress and President very happy with their short term (and complete) victory over Marbury.

But while the new Congress gained in the short term, they did not realize that in so deciding, the Supreme Court gave itself the power to declare the ordinary acts of the Congress and the President unenforceable. Here’s how:

The Constitution specifically enumerates the powers of the Congress. It also specifically enumerates the powers of the Supreme Court. Nowhere in the Constitution does it say that the Congress can give the Supreme Court extra powers to hear cases filed originally with the Supreme Court

This means that the Congress could empower the Supreme Court to grant the Writ of Mandamus that Marbury sought. The Supreme Court noted that there was a conflict between the wording of the Constitution and the wording of the mandamus law passed by the Congress.

The Supreme Court reasoned that since the Congress gets its power to pass the laws from the Constitution, any law that Congress passes which violates the Constitution (the very document giving it its power) is unenforceable. Thus the law giving the Supreme Court too much power was overruled by the Supreme Court.

In doing so, the Supreme Court gave itself a much greater power in that it now had the ability to rule that certain acts of Congress which it determined were in conflict with the Constitution were unenforceable (or more accurately "unconstitutional"). And the Congress and the President went along with it, all to get their little victory over Mr. Marbury. Idiots!

As Mr. Chief Justice Marshall put it:

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited powers and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition to plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act."

The Court went on to set itself up as the enforcer of this restraint upon Congress as follows:

"If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it not be law, does it constitute as rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity to gross to be insisted on. It shall, however receive a more attentive consideration. It is emphatically the province and the duty of the judicial department to say what the law is."

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Checks and Balances, aka the Separation of Powers: Judicial Review is Missing

I. Checks and Balances: Three Branches of Government

The Constitution sets up our government by dividing it into three separate branches, the Executive, the Legislative, and the Judiciary. The Executive Branch enforces the laws, the Legislative Branch enacts the laws, and the Judiciary Branch interprets the laws.

A. Debate From The Outset

While there is almost universal reverence for our Constitution today, this was not the case when it was first drafted. There were two factions, the Anti-Federalists (opposing ratification of the Constitution and wanting to either stick with the Articles of Confederation or some other plan) and the Federalists (promoting ratification of the Constitution).

The Anti-Federalists were concerned that the Constitution gave us too strong a central government, and that strong central governments promote tyranny. The Federalists saw a strong central government as necessary for the development of the United States, and felt that sufficient protections of liberty could be arranged.

So contentious were these debates that the Federalists saw the need to advertise their beliefs to the general populace in the form of several published essays called "The Federalist Papers" which were designed to convince the people of New York to vote to ratify the Constitution.

1. Separation of Powers

One example of the contentious debate between the Federalists and Anti-Federalists was about separation of powers. The Anti-Federalists, quoting the French political thinker Montesquieu, argued that any document which put the Legislative, Executive and the Judiciary under one government was inherently tyranical.

In England, the King was the Executive, and his office arose independently of any other power. There was no document giving the King his power. He and his family simply ruled. Similarly, the Parliament was the Legislative branch, and arose independently of the King (and indeed had even placed some limits upon the King and further, was openly resented by the King). The English Courts arose in part, via the Church (especially the ecclesiastical courts) and thus were independent of either the King or Parliament. So concentrating all of the power of government into one document was a new idea and seemed a risky proposition to some.

But the Federalists argued back that having all three branches arise together was unavoidable, and that even in England, there was some overlap between the branches. They argued that so long as there were checks and balances between the branches, the fact that they all arose under the same document was nothing to worry about. In the case of the United States Constitution, this document sets up a legislative branch (made up of two houses, the Senate and the House of Representatives), an Executive Branch (made up of a president and vice president, and lastly a Judicial Branch (with a Supreme Court).

While this arrangement is not novel to the history of the world, an idea which arose of out of this system is America's unique contribution to world government. That idea, expressly stated no where in the Constitution, is the idea of Judicial Review.

2. Judicial Review

The Constitution expressly limits the power of the Legislature by giving the Executive Branch (in the form of the president) the power to veto any act of Congress. The Constitution limits the power of the Executive by allowing the Legislature to override that veto via a two thirds majority as well as the power to impeach the President. But no where does the Constitution expressly give to the Supreme Court the tremendous power it has today. Which brings us to the first important (and perhaps, most important) Supreme Court case, Marbury v. Madison.

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Enumerated Powers v. The Bill of Rights

In a Constitutional Democracy, the government is set up pursuant to a written document which supercedes everything else in the law. This document is the Constitution and our government derives its legitimacy and power to act from that document and only from that document. The United States Constitution sets up a government of limited and specifically enumerated powers. All of the communities in the United States elected certain Constitutional Delegates to attend a convention in Philadelphia in 1787 and to draft up this document.

Many people blithely think that the United States federal government can enact any law it pleases upon any subject it wants. But this is not the case. Whenever the government takes an action, the source of the power must be traced to some part of the Constitution giving the government the power to take that action.

For instance, if the Congress passes a law building a highway between Washington D.C. and Philadelphia, Pennsylvania, there must be a clause of the Constitution under which it has the power to do this (in this case, the Interstate Commerce Clause will suffice). If the Congress wishes to pass a new military budget, it can cite to the Clause in the Constitution enabling the government to raise and equip an army and a navy for the national defense.

The Constitution also gives Congress the power to set up Courts inferior to the U.S. Supreme Court, and to limit the Appellate jurisdiction of the Supreme Court. The Congress promptly passed, pursuant to this clause, the Judiciary Act of 1789 which defined a great many of the U.S. Supreme Court’s powers.

There were those who argued against the ratification of the Constitution by saying that the Constitution did not provide enough protections for individual liberty. Those persons wanted a Bill of Rights, a list of things that the government cannot do to its citizens. But what is lost in all of this is that those wanting protections for liberty from this strong central government which was being built by the Constitution were divided into two camps. One group advocated the concept of enumerated powers as the foremost protection of an individual’s liberty interests. Others wanted the protection of a Bill of Rights.

The Enumerated Powers advocates argued that if the Constitution is a document which enumerates the powers of the federal government, then it stands to reason that any government the Constitution puts together can only do what the Constitution specifically allows it to do. Thus, if the Congress wishes to pass a law making it illegal to worship Islam, the opponents of that law need only go to the courts and argue that there is no enumerated power in the Constitution allowing Congress to govern any area of religion.

Fifty five mile per hour speed limit on the highway? That’s fine under the Interstate Commerce Clause. But outlawing a type of religion? There’s no clause in the Constitution giving Congress the power to do that.

Why is the concept of Enumerated Powers important? Because it is the best guarantee of our freedoms. It limits what the goverment can and can't do, and limited government (after the experience of live under the rule of the Crown and the Parliament) was what the Framers of our Constitution were all about.

So what was the best way to limit government? Was it to enumerate the government's powers and leave it at that, or to put in a specific list of things the government was not allowed to do (like, let's say, the Bill of Rights)?

The Bill of Rights advocates said that the protection flowing from enumeration wasn’t specific enough. They argued that there were certain freedoms (like religion) that were so important that they deserved a specific mention of protection in the Constitution.

The Enumerated Powers crowd were aghast. Any mention of specific things that the federal government could not do implied that anything not prohibited was permitted. Thus if the Congress wanted to pass a law banning smoking in the United States, so long as there was no Amendment against such an action, it could do so. Never mind that there was no Interstate Smoking Clause in the Constitution which would give the Congress that power.

The Enumerated Powers advocates argued that you were freer if you lived in a society in which government could only do a few listed things, because the things you list will always be fewer than the things you don’t list.

But the Bill of Rights Crowd carried the day, and thus we have the first 10 amendments to the Constitution which became known now as the “Bill of Rights.”

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How to Read this Blog: Wine or Fine Ales Required

Many of the words and phrases used here will take you back to your school days of boring civics lessons. Think not of these images as they are tiresome and a stain upon the subject matter.

Think instead of several comfortable leather chairs positioned around a roaring fire in the central hearth of a Boston tavern in the 1780s. Think of the contents of these chairs being John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, Alexander Hamilton, or any other of your favorite founding fathers and you. Such as these would not sit and quietly stare at the fire making idle banter about how cold it was outside. Rather, the Madeira would flow as the discourse raged.

Now you are in the proper mindset to read what follows.

Herein you will come across an in depth analysis of the facts of certain cases. Remember at all times that that facts of these cases are not as important as what the case stands for, and how it relates to the overall structure of the law. Once you have that down, you can go back again and examine the facts for any extra significance they have.

I provide the facts only for you to read out of interest or curiosity (some of the fact patterns are quite twisted and interesting). So don’t get caught up in the facts. The holdings of the cases are the important things.

So sit back, pop the cork on some wine, and have fun with what follows.

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