GOVT 421 Exam 1

Differences between pilgrims and puritans

A distinction needs to be made between Pilgrims and Puritans. The Pilgrims who landed at Plymouth Rock in 1620 were separatists. They believed the Church of England was so worldly and corrupt that they had to separate from it and establish their own church, one which was true to biblical principles. They were not allowed to form their own church in England so they first went to Holland and then came to America. The Puritans agreed with the Pilgrims that the Church of England was worldly and corrupt; it was too lenient with regard to vice and heresy. However, they believed they should stay in the church to "purify" it. The title Puritan defined their cause. In contrast to the Pilgrims, Puritans didn't object to the concept of a state church. They came to America to establish a state church and run it strictly according to the commands of God. Many Puritans believed that after gaining strength during their sojourn in the New World's wilderness, they would return to England, take control of the Church, and set things aright. Both Pilgrims and Puritans were staunch Calvinists. Not all Calvinists were Puritans, but all Puritans were Calvinistic. Puritans stressed the total depravity of human nature, and strongly believed that the state, like the church, was an instrument God used to combat sin.

Stuart v. Laird

Brought in Richmond XCVI. o Immediate dilemma XCVII. Under 1802 Acts, chief Marshall was required to sit circuit Court in trial in Richmond XCVIII.If he refused and the court upheld the act, he would be guilty of not doing his duty and be impeached XCIX. If he sat in trial, he would upholding replea and new Act C. Marshall dodged the problem

The Judiciary act of 1789

CXII. He reasons that the JA of 1789 Sect. 13 is unconstitutional and must be nullified. CXIII. Set up Judicial Review- SC can interpret the Constitution and say what the law is. CXIV. •Effort was likely more clever than prudent since he seemed to fail to consider how the decision may come back to haunt regarding the Congress's ability to change appellate into original jurisdiction. CXV. •Short range effect was destructive to the judiciary CXVI. o If they had no jurisdiction, they never should have spoken on court's authority since it is obiter dicta CXVII. o Republicans wanted to eliminate judiciary and replace with no Federalists CXVIII. Monroe wanted to repeal Judiciary Acts of 1798 and 1801 and eliminate all judges except Chief (constitutionally protected) and replace them all

Barron v. Baltimore

CXLVIII. In 1830s, a wharf owner in Baltimore challenged city's actions which damaged his property rights as 5th takings violation CXLIX. SC holds US Constitution cannot binds states CL. o This holding gave states free reign to promote economic development through eminent domain CLI. Even giving this power to private entities

Ware v. Hylot

Court declares Virginia Act to be unconstitutional as it violated a treaty LXI. •Case dealt with VA's ability to negate their debts owed to British creditors LXII. •Congress, after Jefferson administration arrives, paid the debts for them LXIII. No one challenges this decision or its rationale LXIV. •Hylton v. US LXV. o Court called on to rule on constitutionality of an ACT OF CONGRESS LXVI. o Law passed in 1794 required tax on carriages LXVII. o Plaintiffs argued since VA had many more carriages than any other state...esp northern states, act was discriminatory LXVIII. This is b/c Constitution required direct taxes to be apportioned equaly based on population LXIX. o Court ruled against Virginians holding that tax was an "excise", a tax on commodities, and thus was indirect. LXX. •About the same time, Congress passed a serioes of acts which would create an almost hysterical political climate LXXI. o Height of anti-French movements, in 1798, Congress passes Sedition Acts LXXII. o Prohibited conspiracy to obstruct the operation of the laws of the US and made it illegal to write, print, utter, or publish anything intended to defame the government LXXIII. o Repbulicans denounce the acts as violating 1st Amendment LXXIV. o Yet, 1st prohibits making laws "abridging" freedoms LXXV. o If common law applied, seditions libel was already a crime and thus the act only prescribed a penalty so no "abridgement" LXXVI. o Further, under common law, truth was not a defense LXXVII. Yet, the Acts made it a defense..so the argument was that the Acts actually broadened freedoms, not "abridged" them..if there was sudh a thing as the Common Law as recognized by the Constiution.

The Holy Common Wealth (May Flower Compact)

Following Calvinism, the Puritans believed God established the state for the purpose of restraining sin. And to control sin God entered into covenants with men-covenants to establish churches as well as covenants to establish civil governments. In contrast to other Calvinists, the Puritans wanted to establish a "Holy Commonwealth" in which only believers in the Lord Jesus Christ were fully part of the community. Before going ashore at Plymouth, the Pilgrims signed a covenant for civil government which created a Holy Commonwealth. It was called the "Mayflower Compact," It was by blending the covenants of church and government, and allowing only church members the privilege of voting and holding public office, that the Holy Commonwealth was established and maintained. Nonmembers derived benefits such as security for the basic rights of life, liberty, and property from living in Puritan society. They were obligated to obey the rules of society but they were not fully a part of either covenant.

Bank of Augusta v. Earle (Taney Court)

GA bank had acquired some bills of exchange issued by citizens in AL. After 1837 depression, AL refused to pay on ground that no out of state entity could do business in AL Daniel Webster, counsel for bank, argued corporations are "people" and therefore citizens in the eyes of the law and entitled to all "privileges and immunities of citizens in the several states" Taney rejects Webster's argument holding state can prevent outside corporations from doing business within its borders. Taney holds further that in absence of specific legislation excluding them from the state, AL is presumed to have approved of the company in AL

Constitutional Origins

I. During the early years, it was said that the US was a government of laws not men a. In England, excersize of power was limited by tradition as embodied iun the common law and unwritten mixed constitution b. Founders wanted more assurance so they set out to write down the constiutiton

Supreme Court View of Truth

III. Supreme Court even said not government can determine truth a. If there is any fixed star in our constitutional constellation, it is that no official or govt can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. (WV State board of ed. V Barnette )

State view of education

IV. The states view of education today rests upon the false preise that Caesar has authority to bear witness to truth. a. Christ did not give to the state any jurisdiction over education. b. The early church was in agreement c. So, Christ did not give the state any jurisdiction over education d. Christ delegated to the church the authority to teach e. They used their authority to exhort parents to Obey God's command f. God left no room for Casesar to assume any jurisdiction over truth g. James Madison saw this biblical principle in his remonstrance when he denied that any civil magistrate could be a judge of truth h. Madison claimed that what man believed to be true and what he taught to be true were duties owed to the creator and therefore not subject to the jurisdiction of Caesar i. God has denied government any jurisdiction over men's hearts and minds j. God has given that authority to others, the family, the church, and has sent the Holy Spirit into the world to convit the world concerngin sin and righteousness k. The opinions of men can be directed only be reaosona dn conviction not by force of violience- J. Madison

Puritanism--Postmillennialism

In dealing with eschatology most Puritans adopted a postmillennial interpretation of Scripture. They believed the thousand-year reign of the kingdom of God, or the golden age, on earth was about to begin. God was working through the saints, the church, and the state to bring about conditions conducive to Christ's return. Many Puritans believed God was using New England to lead the revival which would bring about the millennium Rev. Jonathan Edwards, a well-known Puritan, described the Puritan viewpoint on postmillennialism and New England's role in his sermon, "The Latter-Day Glory Is Probably to Begin in America." In it he suggests that God had created two continents, the Old World and the New; since the Old had been given the honor of being the place of Christ's first coming, the New would probably be given the honor of hosting his second coming.

Marbury v. Madison

Jefferson and Madison, upon taking aoffic, realized Adams had not delivered all the "Midnight" judicial commissions (they had to be deliverd to be effective). CIII. o Madison withheld the commissions CIV. o Marbury filed suit asking SC to issue "madamu" requiring Madison to deliver his commission to be a judge in DC. CV. o Jeffersonians expected Court to deliver Mandamus which they would simply ignore, thus, making the Court and Marshall a laughingstock CVI. Marshall avoids confrontation with Jefferson and Madison CVII. •3 Questions Marshall asked regarding the case CVIII. o Is there legal harm been done? CIX. o Is there a remedy at law? CX. o Can the Supreme Court do anything about it?

Financial issues of the constitution

Jefferson's view of each branch controlling and determining what is constitutional prevailed until after the Civil War CXXI. •Thus, there was no real "supreme law of the alnd" as we know today unless the court was able to impose it CXXII. •For most of the early part of the country, the most important constitutional questions turned upon three main issues: CXXIII. o Economic issues CXXIV. o Federal/State issues CXXV. o Slavery CXXVI. •Economic growth early on was unparalleled CXXVII. o Territorial expansion (3x amount expansion) CXXVIII. o Population explosion (6x) CXXIX. o Merchants reaping profits during French revolution and Napoleonic wars CXXX. o Technological innovation CXXXI. Cotton gin CXXXII. Steamboat CXXXIII. railroad

Jurisdiction: God and Man

Jesus emphatically denied any human civil government could legitimately exercise total power over its citizens. c. This principle of limited authority had already been revealed by God through Moses in the book of Deuteronomy:15 be sure to appoint over you a king the Lord your God chooses. d. Israel's first king, Saul, on 2 occasions violated the law that governed his kingdom, i. First by excersizing authority that was not his (1 samuel 13) e. CThe jurisdictional limits to civil authority were invoked by early church f. Three times in Romans 12 paul labeled civil rulers ministers or servant of God (romans 13: 4-6) g. When God created man and woman he gave them dominion over the earth, the fish, and the owl i. God kept for himself the jurisdiction to rule man h. After the flood, God granted authority to men to enforce the law of murder when he entered into a new covenant with Noah and his sons. Some say that this is first instance of civil government k. Later God granted to Israel an extended jurisdiction to inflict capital punishment on those who committed adultery, sexual perversion, and various other offenses i. Thus no man has authority to rule over another man unless specifically conferred on him by God.

Swift v. Tyson (Taney Court)

John Swift brought this case in New York Federal Court against Tyson seeking to enforce a bill of exchange. Tyson had previously purchased several plots of land from speculators unaware that they did not own the property in question, using the bill of exchange to complete the transaction. Thereafter, the speculators tendered the bill to Swift, prior to when it was due, in payment of a promissory note they owed Swift. Swift took the bill of exchange with no knowledge regarding the earlier land transaction. Swift sought enforcement directly against Tyson. The Court was divided as to whether Tyson could avail himself of the same defenses that would have been available had the suit been between the original parties to the bill of exchange. The inquiry turned on the question of whether federal courts, sitting in diversity, were bound by state common law in addition to state statutory law, or whether federal judges were empowered to say what the common law was ISSUE FOR COURT: Whether Swift can invoke defenses that would have been available in New York State Court? Whether federal courts, sitting in diversity, are bound by state common law (not just NY statutory law) under the Rules of Decision Act of Judiciary Act of 1789? HOLDING No, federal courts are bound by statutory law but not common law As court looked to NY court decisions, it realized that under NY COMMON LAW, as opposed to statutory law, Tyson would win because their were defenses to the suit under common law However, under the Judiciary Act of 1789, the Court was bound by the "laws of the several states" which did not necessarily include decisions by courts in those states (state common law). According to the majority, while state court decisions may provide evidence of what the law is, they do not independently constitute laws binding on federal courts. This is a huge decision but is later overturned in Erie Railroad Co. v. Tompkins

Rise of Political parties

Most felt they were dangerous since they usullly would put their interests ahead of those of society XXII. •Framers of Constitution thought the document would all but preclude their creation XXIII. •Yet, Madison and Jefferson bring about the first party XXIV. o They are gravely concerned about Hamiliton's "big government" ideas about financial policies and government influence XXV. o Calling themselves "Republicans" to avoid stigma of the "Anti-Federalists", they found allies in the anti-federalist groups XXVI. Arguments over French v. British support drove the groups futher apart XXVII. Further, Chief Justice Jay's treaty negotiations with Britian became an issue XXVIII. •The House wanted to see all correspondence relative to Jay's negotiations of the treaty with Britain XXIX. •They passed a resolution requiring that "all correspondence" regarding Jay's negotiations be turned over to the House XXX. •Once Washington got the bill, he refused in fury XXXI. o None of the House's business XXXII. o Lectured Congress on constitutional issues XXXIII. o Secrecy was dangerous but necessary element of foreign relations XXXIV. The Senate had access to such information anyways...but not the House XXXV. House passed a resolution stating they did have a right to the papers but Washington would not budge XXXVI. Thus, the issues was closed. XXXVII. •The various problems with parties eventually resulted in the 12th Amendment which specidifes that electors vote separately for President and vice President.

Puritanism

Pilgrims and Puritans occupy a special place in American history. Being among America's earliest European settlers, the Pilgrims are remembered for America's first Thanksgiving. As for the Puritans, their zeal, industriousness, morals, and dedication to God are remembered with profound respect. Yet, their stocks, whipping posts, ducking stools, and Salem witch trials are regarded as one of the worst chapters of American history

Postmillennial eschatology helped determine Puritan political thinking in several ways.

Postmillennial eschatology helped determine Puritan political thinking in several ways. First, it assumed an upward direction of history-God was using believers to prepare the world for the return of Christ. Second, it placed special responsibility on New England's most devout religious leaders to do God's work well. God was using them to prepare the way for the culmination of human history and the return of his son Jesus Christ. Therefore, the covenant and the Holy Commonwealth assumed even greater roles. Third, it placed more emphasis on biblical law. The postmillennial Puritans saw the church as the successor to Israel's promises and obligations. They held no reservations about applying biblical law since the covenant of the church and the covenant of civil government were interdependent. Without actually identifying themselves as the new Israel, the Puritans thought of themselves as a people specially chosen of God. They freely drew comparisons between themselves and the Israelites and assumed that God would either bless or punish them for their faith and actions just as he had Israel. Postmillennialism was the predominant eschatology of the 1600s, 1700s, and early 1800s. It almost died out in the middle 1900s. Within the past many years it has undergone a revival among some Calvinists and charismatics.

Property rights

Property rights also went through a transformation CXXXV. o Property was/is one of three basic natural rights (life and liberty) CXXXVI. In constitution (contract clause, 5th amendment, and structure of govt) CXXXVII. o Yet, a few things hampered growth CXXXVIII. Only land was regarded as real property with all else being personal CXXXIX. •Personal property rested on shaky ground if recognized at all CXL. Property was seen to be for personal enjoyment mainly CXLI. •This hampered any legal recourse for property issues CXLII. •Ex- if you bought land and made improvements only to find someone had better title- you were entitlted to no compensation CXLIII. •Ex- Riparian rights- you could no affect water flow w/o government approval CXLIV. •Courts at the federal and state level began to interpret law through economic development lenses CXLV. •The issue of "takings" was problematic early on CXLVI. o When states wanted land, they took it..often without compensating

Judicial determination of constitutional issues

Republicans argued vigorously against the Acts LXXX. •25 people convicted under these acts LXXXI. •Argued a nove LXXXII. •Jefferson also attacked Judiciary based on John Adam's frenzy of creating courts and appointing judges who were anti-Jefferson LXXXIII. o Adams (5 days before term expired) reduced S. Ct. from 6 to 5 justices (so Jefferson could not replace one who was retiring) LXXXIV. Created 16 circuit courts and added large number of judges, marshals, and clerks who were Federalists. LXXXV. Effort was to continue Federalist domination of courts LXXXVI. Adams continued signing commissions until 3 hours before his term ended LXXXVII. o Jefferson and Congress retaliate LXXXVIII. Repeal Judiciary Act of Adams LXXXIX. •Abolished all positions created under the 1801 Act XC. •Passed Judiciary Act of 1802 XCI. Gave rise to 2 cases XCII. •If judges can oly be taken out for "bad behavior" how can Jefferson just "fire" them.

Puritanism continued

They also believed in the priesthood of all believers and wanted everyone to know how to read the Word of God. Consequently, there has seldom, if ever, been a society in which education was as high in quality and as widespread as in colonial New England. Using the New England Primer, a widely-circulated text written from a distinctively Calvinistic standpoint, colonial children learned a world view that clearly taught sin and salvation, law and gospel.

How to settle the issues

Two years later a similar issue arose requiring a similar anayliss XIV. o How to deal with the French XV. o Washington sent a series of requests to the Supreme Court to advise him on the issue XVI. o Court declined to offer any advisory opinions XVII. Becomes constitutional precedent even for today XVIII. "no extrajudicial advisory opinion" XIX. Set the stage for strict separation of branches

XXXVIII. Judicial Determination of Constitutional Issues

XXXIX. •The idea of Judicial Review had been around a while but discredited in England XL. •Many colonists believed in the concept XLI. o John Marshal XLII. o Patrick Henry XLIII. •Federalist 78- Courts must interpret what the law means and if one law conflicts with another, they must decide which prevails XLIV. o If constitution conflicts with another provision, they must find for constitution XLV. •Judicial review (court vs. congress/executive) practiced mainly in inferior courts early on XLVI. •Ins everal states, the concept had been used frequently without protest XLVII. •Yet, declaring a state law invalid was not at weighty as doing so regarding a congressional act XLVIII. •The supremcacy clasue made it an easier issues when comparing constitution v. state law XLIX. o Yet, striking a federal law with the constitution was much less clear. L. •Chisholm v. Georgia LI. o Two S.C. citizens sued to recover debt LII. o Intitated case it S.Ct. b/c Constitution said Court had original jurisdiction in cases in which a state was a party LIII. o Georiga refused to be represented (with good reason) LIV. Federalist 81- inherent that state cannot be sued without its consent LV. Yet, S.Ct ruled against Georgia LVI. After waves of protest, 11th Amendment passed barring suits against a state by citizen of another state LVII. o This case symptomatic of things to come regarding how the courts will act or be limited in so acting. LVIII. •Oliver Ellsworth takes a seat as Chief Justice right as two cases are handed down

Contract clause

a. Article I, section 10, clause 1. i. No state shall pass any law impairing the obligation of contracts

Constitution and financial issues

a. Because economic development mainly happened within wstates it was there that reivalries began b. S. Ct. Would soon have to be come involved c. Most agreed congress had power early on to impose protective tariffs d. Manufactuers sought condeeration congressional help to protect against foregn competition i. Southerners feared this because saw northern companies protecting themselves and acted to stop it ii. Tariff Act of 1816 continue to adopt principles that protected companies and manugactures iii. Souths

Political philosophy of the constitution

a. Constitution approved rather fast b. Yet not passed without much argument c. Analyzed, debated, discussed and explained in a series of 85 essays written by "Pubilus" i. The Federalist papers- ii. Gave us a reasonably clear understanding of the meaning of the document d. Constititution solved fears of Tyranny with 2 new systems i. Federalism ii. Mixed federal system with separate but overlapping duties e. Further, the system's division and definition of power was neither fixed nor precise

Early constitutional issues

a. Despite the marvel at the new constitution it had defects which hampered the ability of the nation b. Required 12 amendments during the first 15 years c. It had blank spots, contradictions, and ambiguities that had to be worked out i. How would it be determined when the government is acting unconstitutionally? ii. What is the remedy when for unconstitutional behavior? d. Founders did not necessarily see the impact political parties would have e. First congress enacted a large amount of law which alost had the feel of another convention f. Everything it did was likely to have the effect of starting precendent so they had to be carefuk g. Early congressional actions had major and lasting impact, including: i. Bill of rights ii. Enactment of judicial system iii. Executive departments iv. Financial system v. (Hamilton was big government guy while Jefferson liked small government)

Economic issues and the Taney Court

a. During the Jackson Presidency, the court turned over almost completely b. Five justices died or retired, leaving Story and Thompson from Marshall Court c. In 1837, Congress increased Court to 9 Justices giving a clear majority of Jackson appointeness i. All 7 were states rights advocates ii. Taney Takes seat as Chief Justices iii. Taney repeatled critizes Marshall's nationalistic tendencies d. 3 cases under Taney altered direction of constutitional law:

Inadequacies of early constitutions

a. Early constitution arrangments proved inadequet b. US won independence likely in spuite of the conferderation congress c. After 1783 Treaty of Paris, congress became less effective i. More than half the time congress did not shuow up to get a quoram to pass a law, thus powerless ii. Foreign nations never knew to home they should speak to because no exec iii. Foreign lenders were spektical d. Interational issues arise abd cibgress was powerless to deal with them i. Ourates plundering US ships off Barbary Coast ii. Spain closed navigation of Miss. River forbidding trade iii. US generally not respected in internation community e. If congress had limited power, states often had too much i. States repressed natural rights of citizens 1. Bills of attainder 2. Annoucning guilt of treason without trials 3. Confiscated private property 4. Overturned pricate contracts 5. Reneged public depbts 6. Violated treaties 7. Enacted fraudulent systems of finance 8. Censured courts when they tried to get involved f. Basically citizens were not secure in their lives, liberty or property g. Jefferson i. Warned that 173 despots would surely be as oppressive as one ii. "Elective despotism was not the government we foghts for" h. Elbridge Gerry i. "The evils we experiences arise from an excess of democracy."

The colonies

a. In form the colonies were Republican in nature b. The clearest expression to a commitment to republicanism in state constutions in the extremely weak executive i. Most governors elected for year ii. Choses by legislatyre iii. Most only had formal and ceremonial power

Jefferson's declaration

a. Jefferson guarded against the idea that man lightly or quickly can rise up against his government for infringing rights i. It was wrong to abolish govt for light and transient causes ii. Rebellion could only be justified when a gov followed a persistent course over a long time that its intention to reduce the people to tyranny iii. Most of the declaration is a recitation of how George did this. ^^^ b. ANoher question raised by the Declaration is whether the document created one country or 13 c. Constinental Congress had referred to the United Colonies i. But this cannot solve the issue for if they are united as one, they why plural colonies? ii. Declaration begins by referring to Americans as one people 1. But them comes down to the side of plurality 2. Yses verb are, not is, and they not it iii. And conludes that these united colonies are, and of right ought to be free and independent states iv. Insitially, then, the artucles of confed est a treaty; each state expressly preserved its sovernty freedom and indepdence

II. McCullough V. Maryland is where implied powers came from

a. Later MC passed an act requiring banks not created by state authority to pan an annula tax of 15,000 dollars b. James McCullough casher for Baltimore branch of Bank of US, resfued to pay because unconstitutional c. Chief Marshall ruled on two questions i. Whether Bank creation was constitutional ii. Whether MD tax on US bank was consutitional iii. Court ruled Yes and no in order iv. Yes 1. Opinion followes Hamilton's answer to Washington in 1791 v. No 1. "Power to tax imvolves the power to destroy) 2. Thus the states could undermin fed govt and the constitution if they could tax the bank

Contiental congress-Philadelphia

a. May 18, 1787-sept 17 1787 i. Work progressed in 4 phases 1. New constitution, not an amendment to articles 2. Five man committee of detail to draw up a rough draft 3. 8/6-9/10-details added a. Which branches had what powers was decided 4. Five man committee of style polished the final product b. Legislative branch-delegates struggled here i. Should vote power be determined 1. One state/one vote or based on population? c. Executive branch i. Even more difficult 1. General fear of exec power after fighting the crown 2. Most saw necessity byt were very concerned about abuse potential 3. Electoral college 4. Powers usually given to executive were instead shared with Congress a. War, military, coin money, treaties, appointments d. Judiciary i. Everyone knew one was needed, but many feared abuse ii. In the end, delegates passed the buck to Congress, give congress responsibility to court iii. Provided for a Supreme court and a chief such other justices and inferior tribunals as congress deemed necessary iv. Judicary was essentially assigned to legislative branch 1. Court given original jurisidciotn over very little and appellate jurisdiction which congress could censure e. Finally, delegates decided matters of "ultimate source of authority" i. Resided in the people, but nor the people as a whole, rather in the people of the several states.

The Declaration of independence

a. May be ambiguous on a few points but is clear on 2 points i. Proper function of government 1. Protect natural rights of men which derive from god and cannot be given or taken away, but can be transgressed by unprincipled men ii. Proper source of government 1. Consent of the governed expressed in a written or implicit compact between rulers and ruled iii. If any govt violates systematically these rights, it is right and duty of people to abolish and reinstitute a new government

III. Early, with respect to colonies, The Crown was the source of all legitimate authority,

a. More or less, established the forms of government in Colonies( the crown) b. Govt of each colony mirrored the British government in this way: i. Governor appointed by Monarch ii. Upper House appointed Englad corresponding to the hereditary House of Lords iii. Lower house choses by property owners iv. Courts with very complex authority structures

State constitutions

a. One issue which gravely concerned founders at state level was how to guarantee rights for anything one legistatyre secured another could abolish i. Some early constutition makers appended to their constututions a lost of principles they declared no gov could volate ii. Virignia Bill of Rights was the first 1. George Mason wrote and was used as a p b. Mass constution was ratified as superior to any legislateive body and therefor not subjected to any legislative alteration c. Similary, it was in Mass. Where a judge first declared that a bill of rights had the force of law i. Quock Walker v. Nathaniel Jennison (1783) Mass. Court found bill of rights to be law of land, including its clause that all men were created equal ii. Thus, the court declared slavery to be unconstitutional

Commerce clause (Gibbons v. Ogden)

a. Rival steamship franchises b. NY gave Ogden an exclusive license to operate steamboat ferries between NJ and NYC on the Hudson river c. Gibbons, also steamboat operator, ran two ferries along same route d. Ogden sought an injuction against givvons in a NY state court, claming that state gave him exclusive right e. In response, Gibbons claimed he had the right to operate on the route because of a 1793 act of Congress regulating coastal commerce f. NY court found for Ogden and ordered Gibbons to Cease operating his steamships i. On Appeal, the NY supreme court affirmed the order, Gibons appealed to US supreme court which reviewed the case in 1824 g. Marshall;s Holding: i. Part 1. 1. Constitution empowers Congress to regulate commerce among the states (commerce clause) 2. Navigation fell within the constutitional meaning of congress\ ii. Part 2 1. What does "among the several states: mean? 2. Congress count not regulate trade solely within a state but could regulate from one state to another and to the navigable rivers on which intersate commerice could be carried iii. Part 3 1. Congress had not acted here-in absence of action, could states excersise concurrent powers? 2. Marshall found that the 1793 congressional licensing act took precedence over the state act of 1808 3. h. Federal government had power to regulate navigation....read into commerce clause, State (and Ogden) couldn't stop Gibbons

The Law of Love

a. While that law undergrids the entire law, it governs some acts exclusively b. True worship of God, including praise, teaching the truth and giving, must come from the heart, not from fear c. Law of love has not been confined to certain duties owed to God alone d. Rather that same exclusive authority of love has prevailed in certain relationships between man and his neighbor e. Christ taught this in his story of the good Samaritan: man ought to meet the needs of his neighbor out of a heart of compassion. f. Never, under common law, have we enforced law of love. Moral duty, not legal duty. g. We distinguish between (and mosaic law) wrongful acts that destroyed another man's property from those that failed to help protect that property h. These jurisdictions were reflected in the common law i. No man is subjected to a civil or criminal penalty for having failed to come to the rescue of another in distress or in need unless a special relationship has been establish j. The duty to rescue and the duty help the needy are moral, not legal k. This was a reflection of long standing teaching that such duties were subject exclusively to God's law of love l. God's exclusive jurisdiction under the law of love was affirmed in Section 16 of the 1776 Virginia Constitution (still in effect) All men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance love, and charity towards each other.

Bill of rights

i. Added through amendments ii. Yet many felt unnecessary iii. Many felt that inclusion would mean that the list was exhaustive iv. Federalist 84-wwhy create a list of prohibitions in a govt whose powers were very limited 1. Probably convicted amtifederalists to ratifu v. James Madison took the lead here-puts together bill of rights 1. Complied dozens of suggestions for amendments 2. 80 recommended amendments vi. 9 states wanted restriction on tax power and a statements saying sights resides with states vii. 7 wanted trial by jury viii. 6 said ubcrease in population for representation, relig freedom, and no standing armies ix. 5 wanted prohibition on quatering troops, no unreasonable search and siezures x. 4 wanted due process, speedy trial, rights of assembly n xi. Madison combined them into 19 proposed amendments 1. 17 passed the house 2. Senate made a change 3. House version would apply to states as well

Summary of a discussion on jurisdiction

i. God created jurisdiction allocated between the state, the church, the family and the person ii. By rejecting God's word, modern man has not embarked upon a new quest for Liberty and justice (but is bound to the state through welfare) iii. Rather, he (modern man) has simply chosen to repeat Israel's mistakes during the time of her judges when every man did that which was right in his own eyes iv. Only God's law of rightful authority can satisfy man's longing for freedom and justice.

Creation of national bank system

i. Hamiltons plan was a fairly novel way to fund the US 1. US would use public debt as basis for the nationas monetary system 2. Debts were not to be repaid but "funded a. That is the primary revenues of the fovernment were pledged as a permanent fund to repay interest but the gov was free to repay principal whenever it wanted or not at all 3. Hamilton's plan also called for national bank who assests againt which it ould issue note that passed as money would be certificates of public debts rather than gold or silver 4. Monetized debt (paper money issues against secuirity of govt bonds) remained a principal basis of currency for much of our history

National bank-could it be destroyed

i. Jefferson and Madison wanted to dismantle Hamilton's financial systems ii. Bank only had 20 year charter some thought it was good to let it just expire iii. Madison sees some value and let it be known what while President he would recharter bank iv. Yet his VP (George Clinton) an anti federalist vetoed the bill 1. Cast the deciding breaking tie vote v. But Manny because of war of 1812, saw need for the bank and as a result in 1816 the second bank of US is chartered with a 20 year charter

Kentucky v. Briscoe (Taney Court)

i. Kentucky authorized state owned and operated bank to issues notes as credit ii. Briscoe claimed it was unconstitutional iii. Did the bank violate Article 1 Section 10..not state shall emit bills of credit? iv. Bank did it on it's own credit, not credit of state v. Court rejected Briscoes arguments

Creation of the judiciary

i. Largely the work of Oliver Ellsworth of CT ii. 2 views on how to create court system 1. Create full netfork of federal courts with borad powers or 2. Few courts, confine s. ct to only that listed in constitution and maintain strong state court systems iii. In the end ellsworth splits the middle 1. 6 supreme court justices 2. Each state gets a court but judges must reside in that state 3. Circiut court with travelling supreme court 4. State courts given concurrent jurisdiction with appeal to US S. ct when state court ruling challenged.

Calvin's view of jurisdiction of God and Man

i. Locke's views followed those of earlier reformation thinkers, esp. John Calvin. Having experienced both the error of total authority in civil government and of total authority in the church, Calvin found neither approach consistent with the Bible.

Creation of the executive

i. Many wanted pres to have power to appont secretaries of state, treasury, and war with consent of senate and be removable by president ii. Yet, constitution did not allow for presidential discreatio to remove them from office iii. William Loughton (SC) argumed that federalist 77 claimed that president had removal power with consent of senate (Hamilton, big govt guy) iv. Had this view prevailed, executive ministires could have evolved into permanent instutions somewahte insulated from president k. Madison argued president must have sole power to remove from oddice i. Departure from strict construction of constitution since it did not give president power to remove sectaries from office

Charles Bridge v. Warren Bridge

i. Mass gave 40 yr charter to Charles Riv. Bridge to operate toll bridfe 1. In 1792, extended to 70 years ii. In 1828, a Mass chartered new corp (warren) to buld competeing bridge a short distance away iii. Charles RIv had no guarantee of monopoly, but argued that it was implicit iv. Warrne Bridge drove Charrles River out of business v. Charles argued imparment of contract rights vi. Two types of questions 1. Can Charter implicitly convey rights and privileged 2. What should we do about changing technological innovation 3. Older school of thought would say honor implied rights 4. Taney dismissed outright any idea of implied monopolies a. Marshall court would disagree 5. "In grants by the public, nothing passes by implication 6. If we allowed such things, technology would cease to progress

New York v. Miln (Taney Court)

i. New state law stated Vessels docked in NYC provide a list of passangeers and to post security against pannegers from becoming public charges... ii. Court upheld the state law. S state is compenetent to privde precautionary measures aginast moral prestielence of Paupers, vagabonds iii. Court reversed in 1941

Stamp Act: ends of ties to England

i. Passed by Parliament by March 1765 ii. John Dickenson Challenged 1. Rights as Englishmen entitled them to all rights and liberties of natural born subjects in Britain a. Could not be taxed without concent or representative b. Since they had no rep in parliament, they believed they could only be taxed by their own colonies iii. Britian asserts that it has full power and authority to make laws and statues of sufficient force and validity to bind the colonies and people of America a. Basically rejecting Otis's and Dickenson's arguments b. Crown can pass any law it chooses c. As many colonists had knowledge about English law, and as Sir Edward Coke had ruled, whenever Parliament passed an act contrary to the traditional constitution the Common law will control it and judge such an act to be void d. British now disagreed with the above older rule i. Modern view in England-law in England was whatever Parliament said it was, even if it was contrary to the constitution, the common law and tradition ii. This is what we now call positive law or positivism (the law is what we say it is) e. Thus, the pivitol question is whether Parliament's authority extended to the colonies i. John Adams"-colonies must be independent otherwise, we would be slaves to Parliament" ii. Colonists came to see the colonies as equal to the Parliament, both owing allegiance to the Crown iii. Thus when the Parliament overstepped bounds against colonies, the colonists assumed they would appeal right to the Crown for help. iv. Owe allegiance to Crown, but not parliament because there's no representation in parliament f. Thomas Jefferson developed this view in his Summary Ciew of the Rights of British America (1774) g. 1st continental Congress did just this and sent list of Greviences to the Crown i. Crown not receptive to greivenecnes ii. Of course, Britian already had committed troops to suppress American resistance h. Now colonists turned to natural rights argument following John Locke's two treatises on civil government i. This will lead to concept as articulated in the declaration of independence ii. i. Once natural rights argument became more well known, which it did after Payne published Common Sense, the days of British ruled were numbered. This argument tracks closely with the declaration j. During this period, Americans learned an important lesson i. Do not trust an unwritten constitution ii. The fundamental or highest law of the land could only be trusted if it were written down for all to see and understand, and this, held accountable iii. Yet, could colonists instigate an uprising every time a govt denied them their natural rights?

Bank Controversy

i. The bank controverery was the first great controversy but it raised a fundamental question as to who whould answer these sort of constitutional questions ii. Congress had basically disregared the constitiotn when it granted removal power to the president but not one challgned this move iii. The National Bank was another matter-many argued against its constitutionality 1. Madison-argued that they debated and rejected such a bank at the convention so it could not be done

Jefferson's view of the bank

i. The guide to proper understanding of the constitution was the 10th amendment ii. View became known as strict constitution iii. No where was congress delegated the power to operate a bank or any corporation iv. The power to operate a bank Could not be inferred from any delegated power 1. General welfare-not a grant of power byt a limitation on power abd even it had to be used for the good of the whole country, not a specified few 2. Necessary and proper clause-necessary does not mean convenient but restricts congress to those means without which it would be impossible to operate as a nation.

IV. The end of ties to England begins a. 1761-Mass. Lawyer, James Otis employed natural law principlce in Writs of Assistance case

i. Under British law customs officials could get writs (search warrants without probable cause) to search anywhere they wanted for smuggled goods ii. Natural law-ancient idea tied to biblical teachings iii. Otis believed in Right reason. That it placed into all men;s heart and no legislative enactment or royal order could change what is wrong or right iv. Otis used natural law arguments to attack Acts of Parliamanet v. Otis argued unconstitutional-he loses but this idea takes hold in the colonies and others use this tactic

Long road to the convention

i. VA had been discussing agreement to shate navigation of Potomac and decided to include PA and DE ii. Some saw this as a regional delegation and thought it was going to replace a national idea iii. Madison-countered with a proposal for a national convention 1. Adopted when VA sent out the call to the states 2. 7 states showed up to Annapolis convention 3. Delegates declared Annaopolis a failure and recommended a national constitutional convention j. Annapolis convention ignored at first k. Yet, 2 events changed the thinking of nation i. In 1787, one state rejected a revenue amendments which all other states approved (US now desperate for funding) ii. At same time, congressed learned of Shay's rebellion-got scared because farmers could almost over throw govt l. Congress now terrified, agreed to send delegates to national convention

Locke's view of jurisdiction of man

l. In the Early history of America, this proposition was not only well known but widely accepted (God ruling man) m. Indeed the political and legal doctrine of the divine rights of kings was based upon erroneous Biblical interpretations that extended the God given right of the husband and the father over his family to the king and his subjects n. According to Locke, the legitimacy of any claim of right to rule rested upon an examination of God's word and God's will

Mutual Duty (law of love)

m. At the heart of mutual duty is the assumption that man has a choice to act without threat of force or violence n. To tax a program to support a government program to help the needy under threat of civil or criminal prosecution of nonpayment of that tax is the very antitheses of Christian charity o. Yet that element of force undergirds all social welfare programs p. Such aid must come from a man's heart of compassion uninfluenced by the threats of a sword, in order to comply with God's law and with constitutional principles such as those in the above quoted Virginia document.

Common Law

o. Even before Calvin's study that called for Limited Authority both in the church and in the states the Common Law developed in such a way to recognize such limits p. In the 13th century Lord Bracton claimed that the common law courts had jurisdictions over temporal matters and the ecclesiastical courts had jurisdiction over spiritual matters i. Eng. Judges battled over whether cases involving marriage, Tithes, inheritance of property were temporal or spiritual q. Whatever the merits of these claims and counterclaims, this common law principle was established i. Some wrongs were not within the Jurisdiction of the civil government courts that enforced the Common Law, but were within the jurisdictions of the ecclesiastical courts and vice versa; more importantly, some wrongs were not within the jurisdiction of any human court. r. Those responsible for the birth and flowering of the English common law never encroached upon this exclusive jurisdiction that God exercised over men's hearts i. They recognized that while God could judge the fornicators and idolaters ii. Man could only judge for sinful acts, not sinful thoughts s. The common law of crimes reflected this principle of jurisdiction in the latin wors actus reus meaning guilty act i. Required for conviction ii. No conviction for guilty mind with common law. t. Robinson v. California u. Common law recognized that God's exclusive claim to judge men's hearts.

Wahington's view on the bank

o. TWashington new it should be his office, because he oathed to protected constutition p. Others only had to support it q. Washington decided his veto power would protect the constitution0 i. Yet he was no lawyer and this constuititional issue was complex r. Washington saw his constitutional ability to required dept heads to provde opinions and denide to do just that i. 2 of his dept heads were lawyers ii. Jefferson-SOS iii. Hamilton_SOT iv. He also included a thir 1. Attorney General0Edmund Randolph v. Jefferson and Hamilton would disagree abd set a division in constitutional

Family Jurisdiction (law of love)

q. God also created the Family with the ability to govern over others (children) r. God gave parents the ability to enforce the law with the rod of instruction limited by the law of love s. At the time that Cain killed Abel God had not yet created any nation i. Instead he had given man only the family ii. When Caine fear that another would kill him, God responded with His assurance that no man had authority to impose the death penalty upon Cain t. God told Cain that if any killed Cain, God would avenge Cain seven fold. u. Later in Genesis, God created the nations out of Noah and his sons v. He also gave them the duty to implement the death penalty for murder w. Family has different jurisdiction to discipline than does the state

Hamilton's view of the bank

u. Articulated doctrine of "loose construction" v. Regarding power to create corpotations, he said it was inherent in sovereignty w. As for necessary and proper clause i. Must be interpreted loosely or else congress could not norhinf since it is virtually impossible to prove that something is absolutely necessary ii. Hamilton's formual was adopted 1. If the end be comprehended within any if the specified powdrs and if the masure have an obvous relation to that end, and forbidden by any par 2. Washington went for this

Staff of the church

x. The rod of the family is not the only alternative that God has provided in addition to the sword of Caesar. God has also created the Staff of the Church y. Paul captured the authprity of the church over one of its misbehaving members in his letter to church at Corinth i. 1 Corinth 5:11 (don't associate with unrepentant sinner) ii. Morover, Paul admonished Christians at Corinth that disputes among themselves were to be resolved within the church iii. The staff, not the sword, was to govern property and other disputes among brethren

Madison's Memorial and Remonstrance

z. In his 1784 Memorial and Remonstrance On the religious rights of Man, James Madison explained that at the heart of religious freedom was an issue of jurisdiction. a. Religion can only be directed by reason and conviction, not by force or violence b. This is a God-given right and a duty towards the creator c. It is a preexisting duty and right, and we cannot force people to have beliefs. d. If the freedom is abused, it is an offense against God. e. Jesus denied that anyone else could declare truth. Jesus is the only truth, he bears witness to it. Denies state authority to bear witness to the truth. f. Christ gave the church the assignment to declare truth, thus the church has jurisdiction over men over truth. g. This command to the church was not limited to religious subjects as salvation, but included all things whatsoever-history, science, law all knowledge. So, nothing is non-religious, religion permeates everything. Church commands truth in all. h. First amendment is sort of in this.