Comparing Articles of Confederation & US Constitution: Federal Power Evolution, Study notes of Political Science

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I) Legal Foundations
A) Origins 1) Roots in the English legal tradition a) Magna Carta: the idea that there is a law over anyone in charge/king
Signed June 15, 1215: due process rights, taxation rights originate here.
Great CHARTER (grant of power by the king)
the kings power came from god= lead to abuse of power
- king used the taxing power to fund his life style
1. the king was going to tax the people, the parliament has to agree, gave power to parliament that has a say things.
2. the idea that there is a law above the king.
there has to be someone bigger than the king(DUE PROCESS: a law we go through) b) Common law: system of courts/ judges to interpret the law
need a system of judges.
Idea: judges interpret the laws, and make decisions based on previous decisions
Everything is written out. Etc. in civil law.
Common law = more flexible, builds off of judges interpretation.
Stare decis: let the (prior) decision stand. 2) Articles of Confederation : ben frank
1776: independence
1777: draft submitted to the states by second continental congress
1781: ratified by the states ( this is the gov. that existed )
*needed unanimous decision to ratify/ change the articles a) Characteristics:
- there is one branch of gov Unicameral congress. Made up by ppl from the states.
- still only have one vote in the house per state, no matter how many ppl. One vote cast by “STATE” = all the states had equal votes, same say 1
- there was extensive … of taxing laws (article 21-22 in anti fed papers) b) Successes
- 1.forgein policy,
- successful in the revolution
- created alliances 2. western lands policies:
- ex pen state, the congress will decide how to bring states in
-how states will be added to the union. Solely dealt with by the NATION govt., not state to avoid fighting amongst the states
c) Failures
-problems in practice: the central gov. was so weak that there was no control over the states.
1. no enforcement mechanism, to force the states do anything they didn’t want to do (art 1 s.8)
3) US Constitution
1787: submitted to the states after Philadelphia convention: lasted 4 months a) Framers : all had experience in govt. average age 42
Thomas Jefferson and john Adams: was not there.
James Madison: father on constitution, he had a plan ( like ben frank) a plan for a system of govt.
Preservation of the union: why the windows were shut/ foreign policy concerns / public opinion might been influenced debates
- we don’t know everything behind the framers intent, why we look at the fed/ anti-fed papers
problems addressed?
- REPRESENTATION: problems with big states and small states have the same voice/ not based on population size. Part of the debate was balancing this
- Slavery: why? Southern states, would have developed own nation, but wanted them counted them for representation. ( n. s. debate)
-Executive branch:
- divided about the nature of the branch, and how long would this executive serve , how should he be elected?( too much power to masses) how we edn up with the electoral college
2 plans : 2
- political parties critique, or groups that come together and disagree
- use their power to put their beliefs into law, possibly injuring the minority
curing factions: causes and effects
you can cure the CAUSES and the EFFECTS
madison favored curing the effects: 1. You cant cure the cases because then you would infringe on individual rights/ destroy. 2. You have to deal with the effects, you have to deal with the representative democracy
Republic v. pure democracy:
Republic/ representative: a small group deal with the voting to help deal with the factions/ can resist being taken in by the factions.
Pure democracy/ size, would not function, prevents mob mentality.
Federalist 51 ??? madison or Hamilton?
Checks and balances: SEAPERATION OF POWERS
Characteristics: helps resist infringement
1: will of its own
2: each branch should have little say in the membership of other branches. ( except judge appointment/ its lifetime appointment)
“men are angels” men are not angels, so government is necessary.

b) Anti Federalists (21 and 22)
favored a weak central Gov., and most power given to the states.
who wrote them ??? many ppl
aren’t nearly as cohesive> they were edited to be 1.
Was not written clearly or on the same page
21: why the articles failed and why the Gov. was failing: 5
the circumstances that were present.
The war and the debt: circumstances
-concludes that the nat. gov. was weak because it lasts funding
burdensome taxes: the taxes that existed were already to meet the needs/ and states unable to deal the debt/ strengthen the articles wont solve, you must fix the economic factors
22: amend the articles:
commerce powers
- regulating commerce/ states should agree to come together and solve the problems
within the confines of the articles
- “safer with states”: states would be less likely to make rational decisions

1/22 Thursday: how much power should the central government have ? distribution of power? How much does the Gov. have by the constitution
c) Ratification :
anti-Federalists: Virginia and nc . ny:
June 1788: enough states to sign on 9 needed
North Carolina and rode island help out until they were certain the bill of rights would be added. d) Bill of Rights: aimed specifically at the national Gov.
Limiting the power of the N GOV. e) Constitutional change
B) Federal Court Structure : article 3 section 1
from the const: we only get the ussc, through congress we get the others.
Art.3 grants this authority to congress.
- judiciary act of 1789: sets up ussc
1869: sets the justices at 9 6
1925: made the appeals process,

3. US district courts: hear facts, each states is divided into regional district courts.
- deal with 350,000 cases a year.
2. Us court of appeals: after the trail losrs are guaranteed an appeal:
- deal with questions of facts,
- hear details of law
1. US supreme court
C) Supreme Court Process :
(95-99%)grant - writ of Certiori “cert”
Make more certain
JA of 1925:- discretionary
Rule of 4: 4 have to read and agree SCrule part 3 rule 10-15
Writ of appeal (1%): If there is an appeal they have to take it
Original jurisdiction : A3 section 2: specifically lists out the courts power to hear and decide a case before any appellate review
Written arguments : appellate briefs, oral arguments
Amicus Curie- “friend of the court” us fed gov( most popular) / must be able to do with permission/ petition.
Informa pauparis: “ in form of the pauper” its free to file/
Writ of Habeaus Corpus- “ bring the body” – filing wrongly imprisoned
Majority: opinion handed down by the courts/ the decisions Outcome & reasioning
concurring : the judge agree but has a doff opinion 7
- there are political means to deal with the issues.
Reasoning: tax payer nexus test ( two prong test)
1: the taxpayer must show a logical link between tax payer status and the claim.
2: nexus between that status and the precise nature of constitutional infringement alleged”
-the tax payer cant make a generic the constitutional claim, must be specific. By infringing on the est. clause of the const.
Holding: taxpayer meets both, therefore has standing.
----what rule is the court applying and what do they say about how its applied.
Tax payer nexus test Limited:
Us v Richardson (1974): cia budget, art 1, sec 9
you don’t specify a tax payer establishment , no standing to bring standing
Valley forge v American united (1982): property transfer, art 4 sec 3:
they were giving $ to a religious institution: no standing, no specific tax payer money in and out (directly harmed) , and the est. clause. No standing.
Standing issues: the court can only adjudicate, what they are allowed.

Lujan v defenders of wildlife (1992)
Endangered species act
Dwl: challenging how the executive has interpreted the law:
Action taken by the executive, what part of the const, are the violating

Fact: challenges admin’s interpretation statute
Prong 1: injury in fact, there needs to be a clearly articulating inury by the group 10
prong 2: causation in fact: evidence that it is the govt. action os causing the injury in prong 1
prong 3: Redress ability: the injury addressed must be able to be cured by the decision of the government
limitations of jurisdiction continued: d) Mootness - DeFunis vs Odegaard (1974)
no longer reviewable
-its not active, the controversy has to be ongoing.
Exception: if the govt. in action is capable if reputitution but evading review.
Roe v wade (1973)- the court has to create an exception, the court couldn’t have herd the case in the time needed
collateral consequences: the challenge was still ongoing, there was collateral consequence, even through the harm is not ongoing. Ex imprisoned etc. e) Ripeness (opposite of mootness) - United Public Workers vs Mitchell (1947) – not ready for review
Poe v Ullman (1961): dealt with a ban on B/c for married couples. There is no harm that we can resolve yet. Some harm has to already happened. Something has to have happened. It can be solved politically.
II) Federalism: (potent id) A) Basics
1) Definition the separation of authority between federal govt and state government.
A) comparing systems: unitary / confederation v federalism
principles of federalism:
Same people and territory : same peeps, same land
Each level of govt. is protected from encroachment (ex state. Elections, own $no)
They both can exert leverage over another. ( ex. appointment of senators)
b) dual federalism: separate, equally powerful levels of government.
Every state has its own power but it can only act in certain ways 11
c) shared federalism: no clear boundaries between federal and state. 2) Federal vs State power :
State: has “police powers”: health safety and welfare of the citizens. Broad.
Fed: limited, enumerated. Is it specifically listed?????
fed action must be enumerated and constitutional a) Federalist 6 and 15
Fed 6: concerns of dissention among the states
- dangers of dissention between the states. , men are vindictive and will start fighting among themselves…why we need a strong central govt.
- responding to the anti-fed. Echos hobbs, commerce insufficient.
…. neighboring govt. are natural enemies. Problem of not having a strong nat. govt.





Fed 15: critical of the articles: there is no umbrella or controlling, making them adhere to the nat. govt, need a nat. govt to control the states.
- lists 2 “national humiliations.”
- Economic and Foreign Policy disarray, who do they speak to ….problems with men and money: the states wouldn’t want to send money to the nat. govt. there is no one to make them send the money to the “states”, no enforcement, we are dealing with the “passion of men”
b) Antifederalist 6 and 17
anti fed 6. “ this hobgoblin appear…..misplaced words”
the federalist are trying to scare you, its not true.
Anti 17: sections of concern.
The supremacy clause art 6 and the necessary proper clause art.1 ( mc v md) 3) Specific powers a) Article 1, Sect 8 : specific federal powers (18 total)
There are going to be the specific powers + the indoctrinate if implied powers b) Article 2 ( executive) and 3( judiciary) : federal powers 12
Holding: no states do not have this right to add to the requirements. /// III) Commerce Clause A) Basics 1) Definition
Art, 1 section 8, the power to “regulate Commerce with foreign nations, and among the several states, and with the Indian tribes.”
Inter-state: multiple states, how broad is this interpretation?
Intra-state: all inside the state Two distinct functions: 1: congress authority to act, and regulate
2: and state authority to act ( dormant commerce clause)
2) Federalist 11
the importance of the union, to have control over commerce and the trade
the focus on the idea of a foreign markets. Not necessarily among states
they are encouraging the diversity of goods, to help the economy.
They don’t envision limiting the trade among states.
Sets up the debate of the 10th amendment 3) Antifederalist 11
Addresses the diversity of goods, letting the market control the influx
The define govt. as already having a federal republic, that its already existing.
Role of local govt. it cant serve local funds, and must make sure the fed govt. cant hurt the local concerns,
*Appropriate role of congress in regulating of commerce.

FED Govt, role in national economy today:
The sole power to print money B) Pre New Deal 1) A broad view - Gibbons vs Ogden (1824)
Facts: ogden was giving the licenced/ monopoly from ny to operate a ferry between.
Gibbions: was granted a license by the federal gov. to operate the ferry
Ogden,
Issue: can congress regiulate? No.
Is the congressional act regulating the coasting trade within Congress’s authority under the commerce clause ? – yes
Is NY laws invalid under the supremacy clause? - yes 15
Reasoning: Broad view of the commerce clause.
1st the must evaluate the constitutionality, that gave gibbons the rights in the forst place and the Ny authority to grant a monopoly.
The court: NY law is invalid, the congressional statute is valid.
If they narrow the fed gov, it would cripple , thus is why its necessary to “broadly” interpret commerce
Commerce defined: not only buying and selling, but all commercial intercourse
Lopez: will lay out
“among the several states”: can congress est. regulations for InTRAstate ? no… protected by 10th
“utmost extent” to regulate interstate commerce --- all federal authority . thus rejecting the 10th amendment argument. Intestate commerce act ( 1887) – break up rail road monopoly and Sherman antitrust act ( 1890) Us vs EC knight( 1895) – incidental effects and manufacturing: Manufacturing: is not apart of commerce, its removed from the commerce its self . they did hold 98% control they were separate companies, not all one. 2 broad categories: economics regulation and police powers( health safety and welfare of citizens)
2) Substantial economic effects - The Shreveport Rate Case (1914)
duel federalism perspective
facts: regulation of train Rates, interstate and intrastate is not being treated equally.
Commerce power includes right to regulate if substantial econ effects on to INTERstate
“current of commerce”: how commerce moves across the country, anything involved in regulating that movement
3) Police powers - Champion vs Ames (1903), Hammer vs Dagenhart (1918)
16
def: states Gov.’s authority- oversee the health safety and welfare of citizens, authority delegated to states in 10A
lottery case: ( champion vs Ames (1903)) you cant ship lottery tickets across states.
yes, you are trying regulate behavior, passing a law to prevent it.
Court sympathetic to “commerce- prohibiting police power”: you are trying to regulate a behavior so ……
Hammer vs. Dagenhart (1918)
Facts: if your good is evil you cant sell across state lines.
The evil is child labor, the goods are being shipped across state lines
Issue: does congress have the authority to prohibit the sale of goods across state lines for moral reasons? – no
Reasoning: distinguishing from previous cases. The evil is the product, not the production. Or wage issues.
Power is reserved to the states.
Holmes decent: …. Takes a much broader interpretation, yes, it should be regulated and does not prohibit fed, govt. form regulation. Both can make regulations in that arena .
Collateral effect on local activities doesn’t make statues unconstitutional.
Implicit 10 A rejected. C) New Deal: transition, challenges legislation to regulate packages and try to get ppl back to work. To set wage rates, max hours, etc. FDR
Rules cases use, pick what rule the court is applying and the analysis the court is trying to play. 1) Direct and logical relationship - The Sick Chicken Case (1935), The Carter Coal (1936)
--> challenge is the direct and logical relationship. // this is not interstate commerce, the relationship that exists.
SCt threatens new deal (responding to the great depression)
The Sick Chicken Case (1935): deal with the national industrial recovery act:
Adopts “code of fair competition ” including minimum wage and prices, max hours etc.
They argue that they are totally intrastate- court agrees not in current if commerce, no affecting on interstate. - not sufficiently direct to be justified under commerce clause. 17
Issue: May congress regulate of wheat via the commerce clause be applicable to purely locally grown wheat.- yes they may
Reasoning: cumulative effect, mean that congress may still regulate interstate commerce.
Consumption has market effect.
Even if it’s only for personal use, we are ultimately regarding indirect of direct effect on interstate market.
Decision to NOT enter the market, was the issue. --- an issue
He narrows the commerce clause
Cumulative effects: every one cant do this because
3) General welfare - US vs. Darby (1941) 4) Interstate travel - Heart of Atlanta Motel vs US (1964) 5) Present limitations a) Guns in schools - US vs Lopez (1995) b) Violence against women - US vs Morisson (2000) c) Medicinal marijuana - Gonzalez vs Raich (2005) 3) General welfare - US vs Darby (1941) recall Hammer FACTS: Fair labor standards act- min wages, max hours for all gods for interstate ISSUE: is the FLSA a legit exercise of congresses power to regulate commerce? YES REASONING: the 10Amen. is rejected. “the 10 A states but a truism that all is retained which has not been surrendered” REASONING: Motive irrelevant REASONING: “Reasonably related” to achieve end of regulating interstate commerce 4) Interstate travel - Heart of Atlanta Motel vs US (1964) FACTS: title 2 of civil rights act, refusing AAs based on race. REASONING: discrimination will depress interstate commerce 5) Present limitations a. Guns in schools - US vs Lopez (1995) b. FACTS: gun free school zone act of 1990 c. ISSUE: Is the gun free school zone act within congress' commere clause authority NO 20 d. REASONING: no explicit findings by congress e. JURISDICTIONAL NEXUS: a statutory provision which limits the statues scope to only those activities which the government specifically has the authority to regulate. f. REASONING: substantial economic effect required- not commercial g. REASONING: activities congress can regulate: channels, instrumentalities, substantial relation h. REASONING: too broad “piles inference upon inference” b) Violence against women - US vs Morisson (2000) FACTS: violence against women act of 1994 ISSUE: is the violence against women act within congress’ commerce clause authority? NO REASONING: non-economic REASONING: congress findings are insufficient REASONING: local vs national interest c) Medicinal marijuana - Gonzalez vs Raich (2005) FACTS: controlled substances act (CSA) vs CA medicinal marijuana proposition ISSUE: is the intrastate enforcement of the CSA within congress’ commerce clause authority? YES REASONING: Congress may regulate intrastate activity where the behavior, in the aggregate, can impact interstate commerce. (weed black market) REASONING: distinguish from Lopez and Morisson test citations: “quote" (case name) multiple choice questions from federalists papers readings short answer- ID terms - define it, talk about significance and give case example, more info rather than less (5 of them) **began here 2/10 3) General welfare - US vs Darby (1941) Recall Hammer. FACTS – Fair Labor Standards Act – min wages, max hours for all gods for interstate ISSUE – Is the FLSA a legitimate exercise of Cong’s power to regulate commerce? YES REASONING – The 10th amendment is thrown away at this point. “The 10A states but a truism that all is retained which has not been surrendered.” 21 REASONING – Motive irrelevant. What they want to regulate is not relevant, only whether they can make the connection to commerce clause and “reasonably related” to achieve end. Reasonable and rational defer a lot to the government. Turns Hammer and New Deal cases on their head. 4) Interstate travel - Heart of Atlanta Motel vs US (1964) FACTS – Title 2 of Civil Rights Act. Refusing service to African Americans. The gov argues that … REASONING – Discrimination will depress interstate commerce, therefore they can regulate. Broad interpretation … local evil being addressed thru Commerce Clause (related to Darby). 5) Present limitations a) Guns in schools - US vs Lopez (1995) FACTS – Gun-Free School Zone Act of 1990 ISSUE – Is th Gun-Free School Zone Act within Congress Commerce Clause authority? No REASONING – argument possession of a gun at school leads to violence leads to drag on economy… No explicit findings by Congress Potential ID: Jurisdictional nexus: A statutory provision which limits the statute’s scopr to only those activities which the government specifically has the authority to regulate. They must be very clear of what parts of interstate commerce they’re regulating and why. REASONING – Substantial economic effect required – not commercial. What they’re trying to regulate is wholly not commercial at all. REASONING – Activities Congress can regulate: Channels (markets…credit card transactions), instrumentalities (people involved – min wage, regulation of chicken health), substantial relation (must be rational and impactful)…3 broad sectors of interstate commerce. In this case, we are focusing on substantial relation. REASONING – The gov’s argument is way too broad “piles inference upon inference”. As our economy as grown, if all they had to do is show tangential relation, Congress would have way too broad of power. Momentous case: first strike down of Commerce Clause since 1930s. b) Violence against women - US vs Morisson (2000) 22