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1. In Marbury, Marshall concluded that the Constitution is superior, paramount law superior to ordinary laws of Congress, and in McCulloch he argued again that it is a superior law, in this case, superior law that binds the state sovereignties. In each case, he rests these conclusions in part on the same explanation of who approved the Constitution. Explain in one page or less who approved the Constitution in Marshall’s opinion, how it was approved, and why Marshall’s assertion of who made the Constitution supports the above conclusions in these two cases. (how the people made the Constitution according to Article VII and according to the principles of Locke and especially the Declaration of Independence, as interpreted by Marshall. It was also about how this principle of popular consent-many people kept talking about Marshall’s “ideas”-they may have been “ideas,” but they were well grounded in history and the Constitution-was the basis for the outcome in Marbury and McCulloch)
2. Applying and explaining the rules of McCulloch v. Maryland, answer the following questions:
A. If Congress wants to regulate the safety of prescription drugs on the private market, whether generic or brand name, under which of the power or powers listed below is such regulation most likely to be constitutional? Briefly explain your answer.
a. commerce (it as part of the justification for the national bank in McCulloch. The spending power would be hard to apply to regulating the private sector unless every drug company accepted federal mone)
B. Regulation of the safety of prescription drugs is not indispensible to the regulation of commerce, because there are a variety of ways consumers can find out whether drugs are safe today. Consumers Reports, the Better Business Bureau, and various internet sources such as Yelp and all kinds of blogs and information pages about drugs. Would it still be constitutional for the Congress to regulate prescription drug safety, if there are other, perhaps better ways to accomplish the same purpose? Why or why not?
(transparently obvious reference to the Hamilton-Jefferson debate over whether “necessary” in the necessary and proper clause meant “indispensible” or “helpful,” and the fact that as a result of McCulloch, Congress had broad choice of means. That is why the word “indispensible” was included in the first line of the question. In McCulloch the court chose “helpful,” and left the degree of necessity to Congress. Nonetheless, many people did not see this, and went on to discuss the comparative merits of different sources of drug information as if this is something we had discussed in class, and some concluded that regulating the safety of prescription drugs was unconstitutional, despite the Pure Food and Drug Act being on the books since 1902, and it being common knowledge that the government regulates all kinds of drugs including prescription. McCulloch and this part of the question were about the fact that Congress is given a broad choice of means to achieve its goals, and these means need not be the best means, or even very good means, as long as they are reasonably related to the goal. After that, it is not for the court to investigate the merits of policy alternatives . )
C. Many states have their own standards for the safety of prescription drugs as well as licensing pharmacists. However, federal law completely regulates the sale and distribution of prescription drugs in the US. What would the constitutional result be and why if a state passed a law allowing its licensed pharmacists to sell prescription drugs that are lower than federal standards?
(was about federal preemption of state laws in conflict with a valid federal law. Most people saw this part, though many missed mentioning McCulloch or the Article VI supremacy clause.)
D. In order to regulate the safety of prescription drugs, the Congress thinks it would be helpful if private blogs and websites and publications such as Consumer Reports totally refrain from publishing any reports about the safety of prescription drugs so that only government reports are available. This would cause less confusion to the public. If Congress banned such publications would it be constitutional? Why or why not?
(required remembering that part of the McCulloch formula for finding constitutionality is that the action not be prohibited by the Constitution. In the case of speech or press, we had already given this example in class and in the HO-commerce cannot be regulated so as to override speech or press rights.
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