American Constitutionalism in Historical Perspective (packet)

Role of the Judiciary: This case is about economic policy making. Americans express their political will through voting and politics, no process independent way of expressing these preferences outside of a democracy. In the area where congress acts representatively, it is legitimate, judiciary must defer

Rational Basis Analysis: with respect to economic questions, inappropriate for the judiciary to adjudicate tradeoffs and choices, sort out through the democratic process.

1. 
   But note that subsistence levels could impact basic human rights. If the economic issue is linked to another issue, the court will step in.
   
2. 
   Rule of Clear Mistake: judiciary should be very deferential, only step in when congress has gone lunatic. (Thayer, Rehnquist court).
   
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   Process dependent: all the judiciary can do here is to improve the process, make sure congress is acting within its power.
   
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   Process independent: when figuring out what basic human rts are, esp. concerning minorities’ rts.
   

Holding: States have no power to impede national law thru taxation (p.98). Power to create the bank comes from the constitution and the many states, but Maryland only represents only one state. May not be a problem if Maryland was taxing everyone on equal terms b/c state has concurrent rt to tax. Ex: property tax on everyone doing business in Maryland whether residents or not.

4. Commerce Clause and Congressional Power (pp. 141-200)

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   Art. I, sec. 8 [3]: “[The congress shall have the power] to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”
   
2. 
   Founders Intent: Had balkanized trade wars prior to constitution, concern among founders over question of economic prosperity. Wanted the republic to be held together by commerce. Madison believed wealth or commerce was a basis of faction b/w classes (creditor/debtor). Resolve faction by putting issues at national level, w/out much judicial review.
   
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