Legislative Powers - N & P Clause

Question 1

What were the most important sentence from Justice Marshall in McCulloch v. Maryland? And why?

Answer 1

“We must never forget that it is a Constitution that we are expounding”

The importance is because:

1. The Constitution must be a living workable document that can be adaptable over time
2. The Constitution is a democratic document; it must be accessible to the people—not so cumbersome as to be put off by the human mind
3. The Constitution is different than other documents, statutes, regulations and etc. because it has to endure

Question 2

What were Justice Marshall’s primary methods of reasoning in McCulloch v. Maryland?

Answer 2

1. Ongoing history = bank was allowed because of the framers intent
2. Structural argument (most) = implied powers are necessary because we could never enumerate everything
3. Textual argument = The Supremacy Clause

Question 3

What was the holding from McCulloch v. Maryland?

Answer 3

Congress has the express power of revenue, so the bank creation was justified by The Necessary and Proper Clause

The law was constitutional

Question 4

What was the policy argument from McCulloch v. Maryland?

Answer 4

The power of the Constitution comes from the people, not the states (MD tried to argue that the states created the Constitution); the Constitution is a living document that was meant to “endure for ages”; should be interpreted to be workable, not to create difficulties

Question 5

What are the 5 principle takeaways from McCulloch v. Maryland?

Answer 5

1. The nature of the constitution - it needs to be a living workable document
2. Necessary does not mean absolutely necessary (otherwise the framers would have made it so)
3. The power to tax is the power to destroy
4. There is no taxation without representation - political accountability between local, state, and federal levels
5. The constitution is the supreme law of the land

Question 6

“We must never forget that it is a constitution we are expounding” is a quote from what case?

Answer 6

McCulloch v. Maryland

Question 7

Who wrote the McCulloch v. Maryland opinion?

Answer 7

Chief Justice John Marshall

Question 8

What is the “test/rule” for utilizing the Necessary and Proper Clause?

Answer 8

1. Is Congress acting on an enumerated power?
2. If yes, are the means Congress is employing plainly adapted to achieve the enumerated powers?
3. If yes, are the means it’s employing prohibited by any provision within the Constitution?
4. If no, then Congress is justified in acting on an implied power under the Necessary and Proper Clause

Question 9

Does Congress have the power to establish a bank among its enumerated powers?

Answer 9

No

BUT congress does have the enumerated power to lay and collect taxes, borrow money, and regulate commerce. Because these power have been given, it is the interest of the nation to facilitate their execution.

Question 10

Does the Constitution enumerate the MEANS by which the powers it confers may be executed?

Answer 10

No

BECAUSE To employ means necessary to an end is generally understood as employing any means calculated to produce an end and NOT as being confined to a single means, without which the end would be entirely unattainable

Question 11

Where is The Necessary and Proper Clause in the Constitution?

Answer 11

Article I, Seciton 8, Clause 18

Question 12

Is there is a difference between necessary, very necessary, and absolutely necessary?

Answer 12

Yes

BECAUSE had the Framers intended the means employed be absolutely necessary, they would have included the word “absolutely” in this clause (as they did elsewhere in the Constitution)

FURTHER if “absolutely necessary” was intended, there was no need to include “proper” because absolutely necessary must also be proper

Question 13

What was Maryland’s argument in McCulloch v. Maryland? And what was Justice Marshall’s response?

Answer 13

Maryland’s argument: The constitution was enacted by the sovereign and independent states; the powers of the federal government are thus delegated by the states and must be exercised in subordination to them

Chief Justice Marshall’s response: The convention which framed the Constitution was elected by state legislatures but the state legislatures did not ratify the Constitution; its citizens did. Thus, the federal government was established of the people, by the people, and for the people

Question 14

When the federal government conflicts with a state’s government, who reigns supreme? And Why?

Answer 14

The federal government

BECAUSE it is the government of all; its powers are delegated by all; it represents all; and it acts for all

Question 15

Where is The Supremacy Clause in the Constitution?

Answer 15

Article VI, Section 2