Introduction Did you know…

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Chapter 8a: Constitutional Law

Jonathan Davis, Daniel West, Eric Borman, and Tony Speno

  1. Introduction

  • Did you know…

    • There were 55 delegates at the Constitutional Convention.

    • Twelve of the thirteen states were represented (Rhode Island did not send delegates to the convention).

    • Not all the states had ratified the Constitution when George Washington became president.

    • The original Constitution can be viewed by the public at the National Archives in Washington D.C.
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” These famous words are the Preamble to the Constitution of the United States of America, a document completed on September 17, 1787 and officially ratified on March 4, 1789. This document was written for the purpose of organizing a strong national government for the states. Before the Constitution was written, the states observed the Articles of Confederation, which gave individual independence to each state. After the states won their independence in the Revolutionary War, George Washington and Alexander Hamilton wanted to establish a strong national government under a new constitution. Hamilton organized a national convention in Philadelphia, and in 1787 called the Constitutional Convention in order to revise the Articles of Confederation. However, many of the delegates at the Convention wanted to create a new plan of government; consequently, the Constitution of the United States of America was created.

The Constitution contains seven articles containing information on legislative, executive, and judicial power (Articles I-III), states’ powers and limits (Article IV), process of amendments (Article V), federal power (Article VI), and ratification (Article VII).

As noted earlier, each state’s authority was under separate guidance before the Constitution was written. The states were not unified under one document, but the Articles of Confederation gave independence to each state individually. When the Constitution was written, the federal powers it established were drawn from the laws of individual states; therefore, the federal powers came from the states. Due to the relationship between federal powers and state powers, Congress and state legislatures have concurrent powers, or duties, which they share. This includes, but is not limited to, building roads, collecting taxes, the power to have a military, the power to hold elections, and making and enforcing laws. A significant concurrent power is police power. Police power gives states the power to regulate the health, safety, morals, and the welfare of the people, prevent fraud and oppression, and to promote the prosperity of all. These are powers reserved purely for the states. States have the power to pass, enforce, and interpret their own state laws, as long as the interpretations do not conflict with the US Constitution.

  1. Enumerated Powers

Enumerated Power: Coining Money
One of the enumerated powers of the federal government is the power to coin money. Congress created the United States Mint in April 1792. The primary mission of the U.S. Mint is to produce enough coinage in circulation for the United States to conduct trade and commerce. There are four operating minting facilities in the United States: Philadelphia, Denver, San Francisco, and West Point, New York. However, only two of these facilities, Philadelphia and Denver, manufacture the coins that are circulated for daily use. The U.S. Mint receives $1 billion dollars in revenues annually, and in 2007 produced a total of 14,440.65 million coins.

2007 Circulating Coin Production (in millions)
January 2007 through December 2007


1 ¢ 

5 ¢ 

10 ¢ 

25 ¢ 

50 ¢ 

1 $ - GD 

$1 Coin



 3638.80 M 

 626.16 M 

 1042.00 M 

 1456.24 M 

  2.40 M 

  3.92 M 

 468.23 M 

 7237.75 M 


 3762.40 M 

 571.68 M 

 1047.50 M 

 1340.40 M 

  2.40 M 

  3.64 M 

 474.88 M 

 7202.90 M 


 7401.20 M 

 1197.84 M 

 2089.50 M 

 2796.64 M 

  4.80 M 

  7.56 M 

 943.11 M 

 14440.65 M 

 $1 Coin – Presidential $1 Coin
 GD - Sacagawea / Golden Dollar

To learn more about the United States Mint, you can visit their website at

The Constitution provides a list of enumerated powers, or powers of the federal government. Article I Section 8 of the Constitution states, “The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The enumerated powers include, but are not limited to, coining money, punishing those who counterfeit money, establishing post offices, providing and maintaining a Navy, and declaring war.

  1. Federalism

A Case of Federalism: Heath v. Alabama
In 1981, Larry Heath traveled from his home in Alabama to Georgia and met two men whom he had hired to kill his wife, Rebecca. They returned to Alabama with Heath, kidnapped Rebecca, and murdered her in Georgia. Heath was later arrested and pled guilty to murder in a Georgia court and was sentenced to life in prison. Later, a grand jury in Alabama prosecuted Heath for murder during a kidnapping. Heath said that he could not be tried in the Alabama court since the crime did not take place there and because he had been tried previously for the same crime in a Georgia court. The prosecutor argued that since Rebecca had been kidnapped from Alabama, the case could be tried in Alabama. Heath was convicted of murder in the first degree in the Alabama court and was sentenced to death. The Alabama Court of Appeals affirmed the decision, as well as the Alabama Supreme Court. The case was then taken to the United States Supreme Court to see if the double jeopardy clause applied in this situation.

Justice O’Connor ruled that “the dual sovereignty doctrine . . . compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause. The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences.” A majority opinion of 7-2 concluded that since Heath committed separate offenses against two sovereigns, Alabama and Georgia, double jeopardy did not apply, and the U.S. Supreme Court affirmed Heath’s conviction. Both states exhibited their own individual powers and responsibilities.

To read the full case, visit
Federalism, or dual sovereignty, is another provision of the Constitution. It was believed that the United States government should be limited to the number of its enumerated powers, and all other enumerated powers should be granted to the people and the states. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Under federalism, each state is granted independent powers and responsibilities. States have their own individual legislative, executive, and judicial branches and are allowed to pass, enforce, and interpret their own laws, as long as they do not violate the United States Constitution. However, most governmental responsibilities, such as taxation, civil rights, environmental protection, and business regulation, are shared by federal and state governments.

  1. Supremacy Clause

A Case of the Supremacy Clause: McCulloch v. Maryland
In the early 1800s, the Maryland State Legislature created a tax that required the Second Bank of the United States to print its notes on special stamped paper. The state legislature also said that the Second Bank needed to pay Maryland $15,000 per year. The head of the Second Bank, James McCulloch, refused to pay the tax and a suit was filed. The case went to the Maryland Court of Appeals, and Maryland said that the Second Bank was unconstitutional because the Constitution did not state that the federal government could charter a bank. The Maryland Court of Appeals supported Maryland and the case was appealed to the United States Supreme Court.

Chief Justice Marshall ruled that the Constitution is the supreme law of the land and that the federal government is bound to act under the explicit or implied powers of the United States Constitution. Congress has the implied power to create a bank in order to exercise express powers, although it is not plainly stated in the Constitution. Chief Justice Marshall said that Maryland could not tax the bank without violating the United States Constitution. Since the Second Bank was established by the federal government under implied powers, it was as if Maryland were actually taxing the federal government. A majority of the court sided with Chief Justice Marshall, and the tax Maryland tried to impose on the Second Bank was voided. Federal law trumped the state law of Maryland.

To read the full case, visit
Article VI, Clause 2 of the United State Constitution contains the Supremacy Clause. The Supremacy Clause essentially states that if there is a conflict of federal law and state law, federal law takes precedence over state law. It says that the Constitution, Federal Statutes, and United States treaties are to be “the supreme law of the land.” Even if state laws or constitutions conflict with the United States Constitution, state judges are required to uphold the United States Constitution, as it is the highest form of law of the United States legal system.

  1. Commerce Clause

Another clause provided by the United States Constitution is the Commerce Clause. The commerce clause gives federal law the right to regulate in three areas of commerce (trade):

  1. Foreign commerce

  2. Trade with Native American tribes

  3. Interstate commerce

An early interpretation of the Commerce Clause (based on its official wording) provided that federal law is allowed to regulate interstate commerce (or trade between separate states), but it cannot regulate intrastate commerce (or trade within the same state). However, a subsequent, broader interpretation of the clause provides that Congress can regulate intrastate activities as well, as long as these activities affect interstate commerce. The “affectation doctrine” is also provided by the commerce clause. Essentially, the affectation doctrine means that there is very little that the federal government cannot regulate regarding commerce, and that states are allowed to regulate interstate commerce as well.

A Case of the Commerce Clause: Gibbons v. Ogden
In the early 1800s, the state of New York granted a monopoly on steamboat operation between New York and New Jersey to Robert Fulton and Robert Livingston. They allowed Aaron Ogden of New Jersey to operate the ferry between the two states. A competing ferry service licensed by Congress was being operated by Thomas Gibbons. Ogden obtained an injunction against Gibbons to keep him out of New York waters. Gibbons sued for entry into New York and the case was appealed to the United States Supreme Court.

The Court had to decide if commerce among several states was legal. The Court held that the Commerce Clause covered more than just commerce; it covered navigation, as well. It was ruled that the Commerce Clause gives Congress the right to regulate interstate commerce and navigation, and the New York law was found invalid.

To read the full case, visit
Even though states can regulate commerce, they can get into trouble if there is a conflict with federal law, as seen in the case of Gibbons v. Ogden. States can also get into trouble if there is express or implied preemption. Expressed preemption is when the federal government informs states to not regulate commerce, but states regulate anyway. Implied preemption is when the federal law is so extensive that there is no room for states to regulate trade. Another way for states to get into trouble concerning commerce is if there is discrimination against other states. Discrimination is involved if state laws treat interstate commerce and local commerce unequally, or if they hinder interstate commerce or prevent it from occurring. One final way that states can get into trouble in regulating interstate commerce is if they cause undue burden on trade. Any law is a burden, but the question is whether the law is undue (or excessive). To see if a law is undue, it is measured to determine the amount of disturbance created by the law.

  1. Import/Export Clause

A Scenario of the Import/Export Clause
The Hershey Company in Hershey, Pennsylvania makes confectionary products that the world has come to know and love. You may know that chocolate is made from the cocoa bean. Cocoa beans are grown on cocoa trees which are grown in Central America, the Caribbean, Brazil, and Africa. Since there are no cocoa trees in North America, the United States must import cocoa beans to be used by the Hershey Company. The federal government taxes the import of cocoa beans, however the state of Pennsylvania cannot. Once the Hershey Company makes their products and exports them to other countries, neither the state of Pennsylvania nor the federal government can tax these exports.
To learn more about the Hershey Company’s corporate social responsibility in regards to cocoa, visit
The Import/Export Clause of the United States Constitution says that state governments do not have the power to tax imports or exports. Imports are goods brought into one country from another country, and exports are goods being sent from one country to another. On the other hand, the federal government has the power to tax imports, but not exports.

  1. Privileges and Immunities Clause

Article IV, Section 2, Clause 1 of the United States Constitution is the Privileges and Immunities Clause. It says that states cannot discriminate against people from other states. States must treat visitors from other states as they do their own residents. There are some exceptions, however. Courts do not require states to charge the same college tuition to out-of-state residents because they have not been paying taxes in the state that supports these schools. The clause also gives a person the right to travel, so that a person from one state may enjoy “privileges and immunities” in another state without fear of discrimination.

A Case of the Privileges and Immunities Clause: Baldwin v. Fish and Game Commission of Montana
In the late 1970s, Lester Baldwin took the Fish and Game Commission of Montana to court. Baldwin believed that he was discriminated against and his rights were violated under the privileges and clause of the Constitution. Baldwin, who was not a resident of Montana, went to Montana to go elk hunting. Since he was an out of state elk hunter, he was charged a higher hunting fee than Montana residents. When the case was taken to the U.S. Supreme Court, Justice Blackmun ruled that the Privileges and Immunities Clause only pertains to activities which bear “on the vitality of the Nation as a single entity.” Since elk hunting is a recreational activity and does not pertinent to the survival of Montana residents, Blackmun ruled that this situation was not covered by the Privileges and Immunities Clause and he was supported by a majority vote.

To read the full case, visit

  1. Contract Clause

A Case of the Contract Clause: Stone v. Mississippi
In 1867, the state of Mississippi chartered the Mississippi Agricultural, Educational, and Manufacturing Aid Society to run a lottery for the next 25 years. The following year, the residents of Mississippi ratified a new constitution which outlawed lotteries. In 1874, John Stone and other members of the Society were arrested for running a lottery. The Society said that they did nothing wrong because they were protected by their charter. However, the state of Mississippi said that the new constitution repealed the charter. The case was brought before the U.S. Supreme Court to see if Mississippi violated the Contract Clause by repealing the charter.

The court determined that the lottery run by the Society conflicted with Mississippi police power. The court viewed the lottery as a threat to the public health and morals of society, and therefore was unconstitutional. It was ruled that Mississippi did not have the right to “bargain away the police power of a state” in the first place, and that the new Mississippi constitution did not violate the Contract Clause.

To read the full case, visit
Article I, Section 10, Clause 1 of the United States Constitution is the Contract Clause. The Contract Clause applies only to state governments—it does not apply to the federal government. It says that states cannot write laws that affect existing contracts laws. However, the contract clause does not apply to contracts that have not yet been written. This clause was added to the Constitution because it was feared that the granting of “private relief” under the Articles of Confederation, would continue by the states. Under “private relief”, legislatures would pass bills excusing influential individuals from paying their outstanding debts.

  1. Full Faith and Credit Clause

A Brief History of the Defense of Marriage Act
In 1993, a landmark case took place in Hawaii. In the case of Baehr v. Lewin, Hawaii’s high court issued a first-of-its-kind ruling that said a barrier to the marriage of same-sex couples is discrimination. This launched the Freedom to Marry Movement. Three years later, in the case of Baehr v. Miike, the trial court of Hawaii held a full trial, complete with expert witnesses who testified as to why Hawaii denied same-sex marriage in the first place. The court found that these reasons lacked worth, and it was ruled that same-sex couples were entitled to marriage licenses. In response to the Baehr cases, Congress passed the Defense of Marriage Act in 1996 which defines marriage as the union between a man and a woman for federal purposes. It also grants states the right to refuse to acknowledge a same-sex marriage performed in another state.
(As a side note—Hawaii amended its constitution in 1998, giving state legislature the power to define marriage strictly as a union between a man and a woman.)
Article IV, Section 1 of the United State Constitution is the Full Faith and Credit Clause. This clause says that states have to respect the “public acts, records, and judicial rulings” of other states. For example, a couple wedded in Iowa will be recognized as married in Missouri even though the marriage was granted in Iowa. There is some conflict with this clause, especially in the area of same-sex marriage. Each state has its own laws and constitutional amendments concerning same-sex marriage. In 2000, Vermont approved a domestic partners act and gave same-sex couples most of the same rights as heterosexual couples. This was later followed by a Massachusetts Supreme Court ruling that the Massachusetts constitution granted same-sex couples equal rights to marry. Currently, there are only two states where same-sex marriages are legal: Massachusetts and Connecticut. Same-sex marriages were legal in the state of California, until Proposition 8 was passed in November of 2008. Most states do not acknowledge same-sex marriages that took place in another state due to the fact that many states have a Defense of Marriage Act.


The Constitution of the United States of America is the supreme law of the land (as stated in the Supremacy Clause). The Constitution provides a list of enumerated powers, or powers of the federal government. All other powers not given to the federal government are given to the states, as long as they do not violate the United States Constitution (Federalism). The Constitution also gives the federal government the right to regulate commerce (Commerce Clause) and the right to tax imports (Import/Export Clause). Under the Constitution, states cannot discriminate against people from other states (Privileges and Immunities Clause) and they cannot write laws that affect existing contract laws (Contract Clause). States also have to respect the public acts, records, and judicial rulings of other states (Full Faith and Credit Clause).

Great American Cases: Marbury v. Madison-- Amanda Grzesiowski

Today, Marbury v. Madison is still remembered and recognized as an incredibly important case in American history. This case established the ideal of judicial review. It was argued on February 11, 1803. The case was decided on February 24, 1803. This landmark case formed the basis for the exercise of judicial review of our nation today.

William Marbury served as a “Midnight Judge” during the John Adams presidency. He was appointed to the position of Justice of the Peace in the District of Columbia. His term was to begin roughly around the time of the beginning of the following presidency, belonging to Thomas Jefferson. In order for these appointments to be made official and be carried out into action, the Secretary of State was to deliver the commissions to those appointed to positions. While some appointments were confirmed while Adams was still president, others were to be delivered after Jefferson had already become president. Adams figured that was acceptable because the Senate had agreed to these appointments. However, once Jefferson was made president, he ordered his Secretary of State, James Madison, to not deliver the remainder of the positions. Without receiving his commission to appointment, Marbury was unable to take up his post as Justice of the Peace.

On February 24, 1803, the decision was made. The official ruling of Marbury v. Madison was the Marbury possessed the right to his commissions, but the court did not have the power to force Madison to deliver them to Marbury. Due to the Judiciary Act of 1789, the court did not have the proper jurisdiction to force Madison to deliver the commissions. This act made it unconstitutional for the courts to try and issue a writ declaring Madison take a course of action pleasing to Marbury. The case of Marbury v. Madison was a landmark decision in the United States because it is the first time that the court ever declared something unconstitutional. It also established the concept of judicial review because it identified the rights of courts to oversee and nullify the actions of a separate branch of government. Marbury v. Madison helped to create the checks and balances system that is so successful in our government today.

Chapter 8a: Constitutional Law Page

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