American Constitutionalism in Historical Perspective (packet)

Political Nationalist: need to create institutions of economic unity, important to have a stable credit economy. Want to give broad powers to the natl gov’t. (Hamilton)

Legislative Practice: Should defer to legislative and executive practice b/c: Marshall says that history shows that natnl bank is legit, crucial principles of liberty a/n involved, question of eco policy

Sovereignty:

1. 
   Maryland: Legitimacy of constitution comes from sovereignty of the states. (Jeffersonian argument). Have better reading of human rights by giving more power to the states. Makes sense based on Alien & Sedition Act, but rings hollow with regard to slavery (strict constructionism protects slavery). States have concurrent power of taxation, not preempted if done properly.
   
2. 
   McCulloch: Sovereignty comes from the people who are supreme over the govt and the state. (Lincoln, Hamilton). The natl govt should thus have supreme authority based on theory of rep in #10. Maryland c/n tax the national govt b/c it d/n rep the nation. Better to invalidate this tax, let the congress override if chooses to consent. More liberal constructionism
   

Theory of union that there is adequate constitutional power at national level to begin ending slavery. You could stop the slave trade among the states consistent w/ the commerce clause. Can pass fed laws saying to slave-owners in the South that we will pay you if you emancipate your slaves. The real issue is whether there is constitutional power to stop the worst human rights violations.

Interpretation: not limited to enumerated terms in Art. I, sec. 8 since word “expressly” left out between Articles of Confederation and the constitution. “A constitution not a code,” gestures toward more abstract, connotative reading.

1. 
   Jefferson says bank isn’t necessary but Necessary and Proper clause at end of Art. 1, sec. 8 shows that implied powers exists. Lack of word “absolutely” to modify necessary suggests a weaker context. “Proper” further dilutes necessary.
   
2. 
   Want legislative judgments of reasonableness from legislatures, must interpret the clause to permit this flexibility. Need to be responsive to change.