Introduction to Federalism

1. Tenth amendment – powers not delegated to the US by the Constitution, nor prohibited to it by the States, are reserved to the States respectively

2. Article I, Section 1: grant powers to Congress; Article I, Section 8: grant specific powers (Taxes, pay debts, regulate Commerce with foreign Nations and among States and Indian Tribes…to constitute Tribunals inferior to the Supreme Court….to declare war….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 Govt

   1. Where federal law is, it is supreme

   2. Federal law only exists where it is enumerated (or can be implied from the enumeration)

   3. The broader the federal law, the narrower the power of the states

   4. Generally, where federal power under the Commerce Clause ends, state “police power” begins

   5. 2 positions

      1. 10th is a reminder that congress can only act within its enumerated powers; OR

      2. 10th provides a separate basis on which states can challenge an act of Congress

   6. What to do with Constitutional Silence?

      1. Fill in with N&P or Commerce or 10th

3. Controversy over the Constitutionality of Bank of the United States

   1. Thomas Jefferson: Tenth amendment reserved power to the State that were not delegated to the federal government by the constitution. Power to create bank neither enumerated nor necessary and proper for carrying into execution the laws of the United States

      1. Necessary means indispensable and the Bank was not indispensable to carrying out enumerated powers

   2. Alexander Hamilton: Government, it is sovereign capacity, must have a right to employ all means requisite and fairly applicable to the attainment of the needs of such power, which are not precluded by the restrictions and exceptions specified in the Constitution.

      1. Necessary means needful, requisite, incidental, or conducive to achieving the ends

4. McCulloch v. Maryland (1819): Maryland passes state legislation to tax the Bank of the United States.

   1. Key Principle: Congress may only act if there is constitutional authority for such action. In contrast, states can act unless the Constitution forbids it from acting by the tenth amendment.

   2. Held: (Marshall) Congress has constitutional authority to establish the national bank, given past practices and judicial acceptance through silence.

      1. States did not create nat’l government, the people did; federal power therefore emanates from the people and in its domain is supreme over state power. (Article VII on Ratification)

      2. Although 10th amendment says “all powers” not granted to Congress are reserved to the states, the Constitution should be interpreted as a structure, not a statute. So powers can be inferred from it. If power exists, Congress can infer means to carry it out; it can choose any means not prohibited by the Constitution to carry out its authority.

      3. Necessary means convenient or useful. As long as end is legitimate and within the scope of the constitution; and means are...

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