1. When the new government under the Constitution. Select 2 10pts, so 5pts each answer 1) Disunion a. 13 states, only 11 ratified Constitution b. RI & NC refused until after BoR drafted & ratified c. Plus, NY didn t participate in POTUS election; deadlocked over electors 2) Politically Divided Government a. Washington elected unanimously b. BUT Congress divided = Pro & Anti-Administration members c. In house, 37 Pro 28 Anti; Senate 13 Pro 7 Anti 3) Executive Branch only consisting of two members the POTUS & VP a. Congress created 3 Exec departments State, War, Treasury b. POTUS focused on nominations; picked men of ability he knew from war 4) Problems with Britain, Spain, and the Indians. a. England kept possession of forts in NW; instigated Indians b. Spain instigated southern tribes; gave safety to pirates, criminals, & escaped slaves in Florida c. Indians attacked settlers 2. BoRs 10pts 1) Why did 1st Congress submit BoR 1pt a. to pacify Anti-Federalists b. to complete union w/ RI & NC 2) Of the twelve, how many were initially ratified? 1pt a. 10 3) Tell me at least ONE protection/got - 8pts, but give +2 if answer all ten 1st Religion, speech, press, assemble, associate, petition 2 nd keep & bear arms 3 rd no quartering troops 4 th no illegal search & seizure 5 th No self incrimination, due process, no double jeopardy, no takings 6 th Jury trial, lawyer, speedy & public trial in crim cases 7 th Civil trial by jury over $25 8 th No cruel & unusual punishment; no excessive bail 9 th Gov t limited to enumerated power 10 th Everything else left to states or people 3. No judiciary? 15pt 1) Would new govt solve no judiciary? 2pts a. Constitution creates SCOTUS b. Congress creates court system 2) Which branches of govt were involved in the process? 2pts a. POTUS & Congress 3) What rolls did each branch play? 3pts a. POTUS nominates judges b. Senate appoints judges c. Congress creates jurisdiction 4) How did Judiciary Act of 1789 frame this effort? 8pts a. Created 3-tier fed court system b. Assigned jurisdiction, including power to review state laws/court decisions c. Set # of SCOTUS justices at 6 (5+1) d. Bottom = Federal district court (13) one for every state e. Middle = circuit court (3) staffed by 2 SCOTUS justices & 1 district judge 4. Hamilton vs. Madison 10pts 1) the Funding Plan 3pts a. Hamilton - US gov t fund debt by exchanging new securities for old b. Bonds = same value, plus unpaid interest c. Madison opposed = unfair to original holders (vets) d. Proposed discriminate between original holders (pay full value) & speculators (50% face) e. Plan past f. Madison lost because: 1) members of Congress = speculators & 2) impossible to be fair 2) the Assumption Plan 3pts a. Hamilton = US assume state debt = $22 million b. Problem = some states paid of debts c. Madison didn t oppose because concerned w/ US credit rating d. Plus Hamilton thru in DC
3) the National Bank 4pts a. Hamilton - Bank financed 1/5 by govt, 4/5 by private investors b. Bank: 1) supply notes for business, 2) lend govt money, 3) provide personal loans to help individuals c. Madison = bank unconstitutional; Congress doesn t have express power to create d. Hamilton = gov t has implied power because Congress has power to issue currency e. Wash sides w/ Hamilton s broad interpretation over Madi/Jeff s strict interpretation 5. Chisholm v. Georgia in 1793. 10pts 1) Was the SCOTUS the proper venue for his claim? 1pt a. Yes 2) Why or why not? 2pt a. Art III, Sec 2 Pre-11 th Amend, SCOTUS had original jurisdiction over all cases in which state a party 3) Georgia s response? 2pt a. No Show; claimed sovereign immunity 4) What was the final ruling by the SCOTUS? 2pt a. SCOTUS filed default judgment against GA; Chisholm wins 5) What was national reaction to the ruling by the SCOTUS? 1pt a. Outrage because Federalists assured public states would have sovereignty over its own affairs b. States threaten action (re: amending own constitutions & resisting fed govt) 6) What was final outcome of this dispute? 2pt a. 11 th Amend = State courts have jurisdiction over suits filed against it 6. POTUS elections of 1796 & 1800. 10pts 1) 1796 - Article II Section 1 Clause 3 3pts a. Electors vote for 2 persons only limitation = can t be from same state b. POTUS needs majority; VP needs plurality c. Result = Adams = POTUS; Jeff = VP despite being in different parties 2) 1800 - Article II Section 1 Clause 2 2pts a. House decides tie; voting done by state (1 vote per); majority to win b. Result = 36 ballots; Jeff wins = POTUS; Burr = VP 3) How were both problems solved under the 12 th Amendment? 5pts a. Electors case separates votes for POTUS & VP b. Can t vote for POTUS & VP from same state c. To win, both need majority d. If no POTUS majority, top 3 go to House who decides by state e. If no VP majority, top 2 go to Senate who decides by individual senator 7. Alien & Sedition Acts vs. Kentucky & Virginia Resolutions 10pts 1) Discuss Alien and Sedition Acts.5pts a. Naturalization Act = residency requirement for citizenship raised from 5 to 14 years b. Alien Act = POTUS in peacetime can order aliens out & arrest those who refuse c. Alien Enemies Act POTUS jail enemy aliens in wartime d. Sedition Act fines & jail for anyone who defames POTUS or others in govt e. These designed to gag Republicans during 1800 election 2) Discuss Kentucky and Virginia Resolutions 2pts a. VA states together may interpose to check unauthorized Fed action b. KY states may declare Fed acts that are unconstitutional null & void 3) How KY & VA address issues created by Alien & Sedition 3pts a. Serves as basis of state rights b. Reminded people that relationship of union unsettled c. Lead to theory of secession 8. John Marshall 10pts 1) Who is he? 2pts a. 4 th Chief Justice of SCOTUS longest CJ; 4 th longest justice b. Federalist; Laid basis for Constitutional law 2) How did he get into the position? 2pts a. Appointed by Adams two months before end of term; was Adam s 2 nd choice after Jay refused 3) What role did he play in revolutionizing the role of the Federal Government?3pts a. Established supremacy of Constitution/Fed govt over states b. Made SCOTUS co-equal branch 4) Most significant contribution to the field of constitutional law? 3pts a. Devising judicial review b. Defining commerce, which gave Congress supreme power over interstate commerce
9. In Marbury v. Madison 10pts a. Marbury s commission to be DC Justice of Peace b. Madison s refusal to deliver commission for purely political reasons 2) What is this device? 1pt a. Writ of Mandamus 3) How would it cure issue at the heart of this suit? 2pts a. It = court order to gov t official to do (or stop doing) specific act which legally obligated to do b. Result = Madison would have to deliver commission 4) Did the SCOTUS constitutionally have the power to do what the plaintiffs asked? 1pt a. No 5) Why or why not? 1pt a. In Judiciary Act of 1789, Congress gave power to SCOTUS even though Congress doesn t have authority to create powers for SCOTUS 6) How did the SCOTUS deal with the apparent conflict which arose in this case? 2pt a. It reviewed Judiciary Act, and found Sec 13 (power to issue Writ) unconstitutional b. Reason = decision of appointment is political, which can never be made by SCOTUS 7) Did the SCOTUS actually have constitutional authority do so? 1pt a. No. Nothing in Constitution grants SCOTUS power to review Acts of Constitution 10. In Martin v. Hunter s Lessee (1816) 15pts 1) What issue? 2pts a. Land in VA seized by state during war 2) Was Writ Proper? 1pt a. Yes 3) When should this writ be used? 3pts a. Judiciary Act of 1789 Sec 25 authorizes SCOTUS appellate jurisdiction over states courts in certain situations specially when state court rules on Fed Question b. Here VA courts nullifying Treaty of United States 4) Legal grounds of his claim? 5pts a. Claimed seizure = illegal under Treaty of Paris 1783 b. Art 5 state legislatures had to recognize rights of rightful owner of confiscated lands c. If taken, states had to provide restitution of all estates, rights & properties 5) Was Martin s claim stronger than VA court s response of improper venue? Why/Why Not? 4pts a. Yes. Art III, Sec 2 SCOTUS has appellate jurisdiction under such regulations as Congress shall make b. See above Judiciary Act c. Art VI, Sec 2 - Supremacy Clause: Constitution, Fed Laws, & treaties = supreme law of land 11. In McCulloch v. Maryland (1819) 15pts 1) Whether Congress has power to charter bank? 2pts a. Yes. Congress passed 1 st Bank w/out issue b. Congress to protect general welfare (re: economic chaos post War of 1812) c. 2 nd Bank powers same as 1 st d. This power = implied i. Combined Art 1, Sec 8 powers to make money w/ Art 1, Sec 8, Cl 18 (Necessary & Proper) e. Unlike Articles, Constitution has no express limitation on use of implied powers 2) Whether MD can tax it? 1pt a. No 3) 3 corollaries 6pts a. Power to create implies power to preserve b. That a power to destroy, if wielded by different hand, is hostile to & incompatible with power to create & preserve c. Where repugnancy exists, authority that is supreme must control & not yield to that which is supreme 4) 3 propositions 6pts a. Power to tax involves power to destroy b. Power to destroy may defeat & render useless power to create c. There is plain repugnance in conferring on one Govt power to control constitutional measures of another, which other is declared supreme over that which exerts control 12. In Cohens v. Virginia (1821) 15pts 1) What minor incident gave rise to case? 2pts a. DC lottery 2) What three issues did VA raise in their motion? 3pts a. State = defendant b. No Writ of Error lies from SCOTUS to state court c. SCOTUS doesn t have subject matter jurisdiction over criminal matters from state statutes
3) SCOTUS response to each issue? 8pts a. To 2a: i. Art III, Sec 2 SCOTUS has jurisdiction over all cases in law & equity arising under Const, laws, treaties ii. Art III, Sec 2 SCOTUS also has jurisdiction where state is party iii. NOTE: It s not either-or, it can be both iv. 11 th Amend issue = 11 th bars suits filed against states, not where states file suit against D b. To 2b: i. Writ of error = commission where judge of one court authorized to examine record of another ii. Judiciary Act applies judicial power to all cases arising under Constitution or laws of US c. To 2c: i. Fed #82 SCOTUS may hear appeals from states w/ concurrent jurisdiction ii. 1 st Congress filled w/ members of Constitutional convention; if this = issue, 1 st Congress wouldn t have passed Judiciary Act iii. Art VI, Sec - Supremacy Clause- DC created by Congress, DC has powers to make crim statutes; Crim laws pass by Congress = supreme 4) What was outcome of Cohens plea? 2pts a. Cohens lost because DC not authorized by Congress to force sale of tickets on states 13. In Gibbons v. Ogden (1824) 15pts a. Conflicting right to operate ferry service between NY & NJ b. Ogden = state grant; Gibbons = fed grant 2) What acts did the SCOTUS review? 2pts a. State authorization of monopoly to operate ferry in NY waters b. Fed authorization to operate in coastal waters of US 3) What power is contained in Article I Section 8 Clause 3? 1pt a. Congress has power to regulate commerce 4) How did the SCOTUS interpret this power? 2pt a. Commerce = intercourse b. It involves all regulation of buying, selling, & admission of goods into all ports 5) Is this interpretation narrow or broad? 1pt a. Broad; commerce not specifically defined, but Marshall includes navigation 6) Which three specific entities does the power give Congress the sole authority to interact? 3pts a. w/ Foreign nations b. Among several states c. w/ Indian tribes 7) Where does power of Congress end & power of states begin? 2pts a. Congress may regulate all parts of navigation that isn t purely internal commerce b. States may regulate only internal 8) What areas = states retain residual sovereignty to regulate? 2pts a. Inspection laws, quarantine laws, health laws, regulation of turnpikes, roads, ferries, etc b. States power ends where Congress begin national purposes 14. In Eakin v. Raub (1825) 10pts 1) What = Gibson s central thesis? 2pts a. To make law unconstitutional, SCOTUS committing unconstitutional act 2) What two types of power does the judiciary possess? Explain each. 3pts a. Political power = power to check& balance other branches; established within Constitution b. Civil Power = powers of operation granted by Common law or Const 3) Does either broad power give judiciary authority used in Marbury? 2pts a. No. Judicial review = power to supervise legislation b. No such power from Common law or from Constitution c. Because no express grant, should be reserved w/ people 4) According to Gibson, should judiciary have power used in Marbury? Why or why not? 3pts a. No. Because judges are fallible b. Legislature could retaliate via impeachment, which would make courts submit to legislature c. Plus, judges make shit up d. Judicial review = violation of separation of powers 15. In Barron v. Baltimore (1833) 15pts a. Eminent domain acts of Baltimore essentially rendered private property worthless 2) Was Writ Proper? 1pt a. Yes
3) When should this writ be used? 3pts a. Judiciary Act of 1789 Sec 25 authorizes SCOTUS appellate jurisdiction over states courts in certain situations specially when state court rules on Fed Question b. Here = Baltimore may be in violation of 5 th Amend 4) Under what specific circumstances may govt take? 2pts a. For public use & owner given just compensation 5) What level of govt do limitations contained within 5 th Amend apply? Why? 3pts a. 5 th Amend restrains General Govt not states b. States own Constitution impose restrictions on respective govts 6) What proof, constitutionally speaking, does SCOTUS refer to in rendering its decision? 4pts a. Proof Constitution imposes separate limitations on Congress & States Art I, Sec 9 & Art I, Sec 10 b. while granting specific powers to Congress Art I, Sec 8 c. Plus BoR has demarcation between gov ts i. Congress shall make no law ii. 9 th Amend limits powers of General Gov t to enumerated powers iii. 10 th Amend grants everything else to states and/or people 16. In Johnson v. M Intosh (1823) 15pts 1) what was at issue? 2pts a. Large tracts of land owned in Illinois 2) What benefit does owning title in land give to owner? 2pts a. Ownership = right of possession, right to control, right to exclude; right to enjoy; right to dispose 3) How are those rights created? 2pts a. Possess clear title in fee simple 4) Who owned proper title in this case? Why?v2pts a. M Intosh; purchased land from Fed gov t 5) At what point did chain begin & what points did title of ownership change hands? 4pts a. Chain began when England conquered land in VA land grant b. VA s land grant challenged by French; but land conquered when France defeated c. VA conquered land during War for Independence d. VA turned land over to US gov t under Articles e. Rights of Articles Gov t claimed by Gov t under Const f. Land then sold by Act of Congress to M Intosh 6) Did the seller in both instances actually have legal authority to sell land? Why or why not for both sellers 3pts a. Johnson s seller = no; Proclamation of 1763 barred sale of Indians lands i. Plus, original grant by King = right to use & possess but not sell b. M Intosh s seller = yes; Congress authorized sale of property 17. In Cherokee v. Georgia (1831) 15pts 1) what was at issue? 2pts a. GA passed series of statutes giving state authority over Cherokee lands 2) What is an injunction? 2pts a. Stop order by court which, if violated, results in punishment 3) What specific acts by Georgia led Cherokee to seek an injunction? 2pts a. Extension of GA laws over Indian lands b. Annulment of tribal laws c. Invalidation of contracts w/ Cherokee d. Barring whites entry in Cherokee lands w/out license from GA e. Seizure of gold & silver mines 4) What specific clauses and/or acts of Congress did the Cherokee base their claim? 4pts a. Art VI, Sec 2 treaties = supreme law of land b. Art I, Sec 10, Cl 1 States don t have right to invalidate contracts c. Art I, Sec 8, Cl 3 Congress regulates commerce w/ Indian tribes not states d. Treaty of Holston 1792 formerly established boundary of Cherokee lands e. Act of 1802 established regulations for trade w/ tribes; guarantees tribal sovereignty 5) Did the SCOTUS have jurisdiction to hear this plea? 1pt a. No. 6) What specific Constitutional status did the Cherokee claim 2pts a. Filed under Art III, Sec 2 as foreign nation 7) Whether or not this status was proper. 2pts a. Indian tribes NOT same as foreign nation b. Lands w/in geographical boundaries of US c. US has sole right to regulate commerce w/ them d. Relationship = ward to guardian
18. In Worcester v. Georgia (1833) 15pts a. Arrest of white who entered Cherokee lands w/out license from GA 2) What specific clauses and/or acts of Congress did Worcester base his claim? 3pts a. Principle of Discovery b. Treaty of Hopewell 1785 puts Cherokee under power of US not states i. Cherokee free to use lands as they see fit ii. US reserves sole authority to regulate trade & manage affairs c. Treaty of Holston 1791 i. Recognizes Cherokee Nation & right of self gov t 3) Five competing interests involved in the case. How did SCOTUS address each? 10pts (2ea) a. the legislative power of a state i. States surrender rights to regulate Indian lands under Articles ii. Power assumed under Constitution b. the controlling power of the Constitution and the laws of the United States i. Art I, Sec 8, Cls 11-16 & Art II, Sec 2, Cl1 = US govt has sole war powers ii. Art II, Sec, 2, Cl 2 POTUS make treaties w/ 2/3s Senate iii. Art 1, Sec 8, Cl3 Commerce power w/ Indians iv. Art VI, Sec 2 Supremacy Clause c. the rights of the Cherokee i. Cherokee have rights of possession & self-govt on own lands d. the personal liberty of citizens i. Citizens may travel anywhere in US ii. BUT, may not enter Cherokee lands w/out Cherokee permission (re: it s private property) e. whether the SCOTUS has appellate jurisdiction over state criminal matters. i. Yes. SCOTUS has appellate authority over state criminal matters ii. See Cohens v. Virginia