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Lots of lessons for landmark cases

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Brutus No 1 Summary

In order to develop a comprehensive understanding of the American Founding, it is important to also understand the Anti-Federalist objections to the ratification of the Constitution. Among the most important of the Anti-Federalist writings are the essays of Brutus. Although it has not been definitively established, these essays are generally attributed to Robert Yates. The Brutus essays provide the most direct and compelling rebuttal of the Federalist argument. This lesson provides a summation of arguments made in Brutus' first essay written to the citizens of the state of New York.

Directions

Read Brutus No. 1 Excerpts Annotated and answer the questions at the end of the lesson. In his first essay, Brutus considered whether or not the thirteen states should be reduced to one republic as the Federalists proposed. After examining various clauses in the Constitution, he determined that this would essentially create a federal government that will "possess absolute and uncontrollable power..." Brutus pointed to the Necessary and Proper Clause (1.8.18) and the Supremacy Clause (6.2.0) as sources of immense power conferred upon the federal government by the Constitution.

According to Brutus, the two clauses, essentially render the various State governments powerless. He believed that the Constitution and laws of every state would nullified and declared void if they were, or shall be inconsistent with the Constitution. Brutus argued that under the Necessary and Proper Clause, Congress would be able to repeal state fundraising laws. If Congress believed that a state law may prevent the collection of a federal tax that is necessary and proper to provide for the general welfare of the United States, then Congress would have the authority to repeal the law under the necessary and proper clause. Furthermore, because all laws made in pursuance of the Constitution are the supreme law of the land, the states would have no recourse. Therefore, the government is complete, and no longer a confederation of smaller republics. According to Brutus, there was no limit upon the legislative power to lay taxes, duties, imposts, and excises. Although this authority was technically limited to raising money to pay debts and provide for the general welfare and common defense, Brutus argued that these restrictions do not impose any actual limitation on the legislative powers under the Constitution. In reality, only the legislature had the authority to contract debts and determine what is necessary to provide for the general welfare and common defense of the nation. Therefore, the legislature's authority to lay taxes and duties is rendered unlimited. No state can emit paper money, "lay any duties, or imposts, on imports, or exports" without consent of the Congress and "the net produce is for the benefit of the United States." Therefore, the only recourse left for the states to support their own governments and discharge their debts is by direct taxation. This too however, could be eradicated by the federal government, who also has the power of direct taxation. Where the federal government exercises this essentially unlimited authority, it would be impossible for the states to raise money on their own behalf due to the limited monetary resources of its citizens. Without money, states cannot be supported and their powers would be absorbed by the federal government thus eliminating any sovereignty or autonomy left to the states.

Today, opinions differ over the appropriate size, scope, and power of the Federal government. Regardless of personal views, it is hard to deny that Brutus makes several compelling arguments highlighting the potential dangers of a large national government.

Questions

1. Which form of government (a large national republic or a confederation of small republics) is more likely to preserve and protect personal liberties and why?

2. Can a larger republic, based on the principle of consent of the governed, sufficiently protect the rights and liberties of the individual states and people, or is a confederation the only method of securing such liberty?

3. Should the federal legislature be able to repeal state laws in order to impose federal laws for the purpose of promoting the general welfare or common defense of the nation? If so, why? If not, why?

4. Brutus argues that in a republic, "the manners, sentiments, and interests of the people should be similar...if not, there will be a constant clashing of opinions and the representatives of one part will be constantly striving against the other."Should a republic be made up of a small group of like-minded people? Or, is diversity of opinion beneficial to the success of a federal government?

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Anti-Federalist Papers: Brutus No.1 - Bill of Rights Institute

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The Anti-Federalist papers were written by a variety of authors in opposition to the ratification of the Constitution. Those that were written under the pen name of Brutus are arguably the most cohesive of these documents.

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The Judicial Learning Center | An online companion to the Judicial Learning Center in St. Louis, Missouri.

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Article III of the U.S. Constitution describes the powers and duties of the judicial branch. Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional. This power, called Judicial Review, was established by the landmark decision in Marbury v. Madison, 1803.

" It is emphatically the province and duty of the Judicial Department to say what the law is...If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution... the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Chief Justice Marshall, Marbury v. Madison, 1803

No law or action can contradict the U.S. Constitution, which is the supreme law of the land.

The court can only review a law that is brought before it through a law suit.

State courts also have the power to review state laws or actions based upon their state constitutions.

Legislative actions (laws made by congress)

Executive actions (treaties, executive orders issued by the president, or regulations issued by a government agency)

State and local laws

Marbury v. Madison, 1803

When President John Adams did not win a second term in the 1801 election, he used the final days of his presidency to make a large number of political appointments. When the new president (Thomas Jefferson) took office, he told his Secretary of State (James Madison), not to deliver the official paperwork to the government officials who had been appointed by Adams. Thus the government officials, including William Marbury, were denied their new jobs. William Marbury petitioned the U.S. Supreme Court for a writ of mandamus, to force Madison to deliver the commission.

Section 13 of the Judiciary Act of 1789 (a law written by Congress), gave the Supreme Court the authority to issue writs of mandamus to settle disputes such as the one described here. This power to force actions of government officials went above and beyond anything mentioned in Article III of the Constitution.

Therefore, in addition to deciding whether or not William Marbury had a right to his job, the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution (the birth of Judicial Review).

This case did not reach the U.S. Supreme Court the way most issues do. Most cases reach the Supreme Court as the court of last resort, when the Justices are asked to review a decision of a lower court. In this case, William Marbury petitioned the U.S. Supreme Court directly due to the provision in Section 13 of the Judiciary Act of 1789. Note: The power to directly accept petitions such as these is not granted to the Supreme Court in the Constitution.

What Do You Think The U.S. Supreme Court Decided?

Though the Justices agreed that William Marbury had a right to his job, they also ruled that issuing the writ of mandamus to force that to happen did not fall under their jurisdiction as stated in the Constitution. The Supreme Court opinion explained that it is within their power and authority to review acts of Congress, such as the Judiciary Act of 1789, to determine whether or not the law is unconstitutional. By declaring Section 13 of the Judiciary Act of 1789 unconstitutional, the U.S. Supreme Court established the doctrine of Judicial Review.

The Supreme Court said " The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the (first) part of the alternative be true, then a legislative act contrary to the Constitution is not law." by author of opinion, Chief Justice John Marshall.

Ladue v. Gilleo, 1994

In 1990, Margaret Gilleo placed a sign in the yard of her home in Ladue, Missouri. The sign said "Say No to War in the Persian Gulf, Call Congress Now." The city of Ladue had a law against yard signs, and told Ms. Gilleo to take her signs down. Ms. Gilleo sued the city of Ladue for violating her 1 st Amendment rights.

Was Ladue's law against signs unconstitutional?

Margaret Gilleo sued the city of Ladue in the U.S. District Court for the Eastern District of Missouri. The court ruled in her favor and stopped Ladue from enforcing the law. Ladue appealed the decision, and the Eighth Circuit Court of Appeals also found in Ms. Gilleo's favor. The city of Ladue then asked the U.S. Supreme Court to review the case.

What Do You Think The U.S. Supreme Court Decided?

The U.S. Supreme Court affirmed the decision of the lower courts. Ladue's law against yard signs violated the 1 st Amendment of the U.S. Constitution. The 1 st Amendment protects political speech, and banning yard signs takes away the main avenue by which people traditionally express their personal political views. The value of protecting personal political speech is more important than Ladue's desire to keep the city free of clutter.

The Supreme Court said " They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression." by author of opinion, Justice John Paul Stevens.

Harper v. Virginia Board of Elections, 1966

Annie Harper was not allowed to register to vote in Virginia because she wasn't able to pay the state's poll tax. Virginia law required voters to pay $1.50 tax to register, with the money collected going to public school funding. Ms. Harper sued the Virginia Board of Elections, claiming the poll tax violated her 14 th Amendment right to equal protection. Note: The 24 th Amendment to the Constitution already banned poll taxes in federal elections, but not in state elections.

Was the Virginia law requiring a tax to vote in a state election unconstitutional?

The U.S. District Court dismissed Ms. Harper's suit in favor of the Board of Elections. She then asked the U.S. Supreme Court to review the case.

What Do You Think The U.S. Supreme Court Decided?

The Supreme Court declared the Virginia poll tax law unconstitutional. By making it more difficult for poor people to vote, the state was violating the 14 th Amendment guarantee of equal protection. Voting is a fundamental right, and should remain accessible to all citizens. The amount of wealth someone has should have no bearing on their ability to vote freely.

The Supreme Court said " We conclude that a State violates the ...(Constitution).. ...whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.... Wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. " by author of opinion, Justice William O. Douglas

The Power of Judicial Review

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Judicial Review Landmark Cases | The Judicial Learning Center

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Article III of the U.S. Constitution describes the powers and duties of the judicial branch. Nowhere does it mention the power of the courts to review actions of the other two branches, and possibly declare these actions unconstitutional. This power, called Judicial Review , was established by the landmark decision in Marbury v.

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