Article VI of the Constitution of the United States - Essay Example

An Introduction to American Law Question Article VI of the constitution of the United s commonly referred as the supremacy clause proclaims the Law of the US and its constitution as the supreme law. This in essence means that any act by the federal government in the exercise of its constitutionally mandated powers prevails in the instance of conflict or inconsistency with state legislation (McAlinn et al. 403). The conception of the supremacy of the federal government resulted from Chief Justice John Marshall who served from 1801 to 1835. In the case of McCulloch versus Maryland, the judge ruled that the legislation taxing all banks in Maryland including a subsidiary of the National Bank was void. In his ruling Justice Marshall asserted that even as congress did not have the explicit power to authorize the incorporation of the national bank, the appropriate and essential clause offered a foundation for Congress to act. After establishing the legality of the exercise of this authority, the judge made a ruling that the federal government, even while being limited in its power had supremacy within the Union (McAlinn et al. 78-85). Following the Civil War, the judgments of the Supreme Court favored the states more by invoking the tenth amendment. The tenth amendment asserts that the federal government only has power which has been delegated to it by the states and the people. Since the 1930s, the court started invoking the supremacy clause more which gave the federal government wider powers than before. The court mandated that the federal government cannot be subjected to the legislation or policy of the states unless it wills to do so. The Supremacy clause puts it upon the states to make legislation while taking into account the policy of the federal government. In this regard two issues of importance have to be taken into account; the legality of action by congress according to its constitutionality mandated powers; whether the intention of federal policy is to override state policy (McAlinn et al. 267-273). In the instance of Congress overreaching its mandate its action is void and supremacy does not apply. Congress usually makes policy that is not geared towards the preemption of state policies except on limited number of issues. Congress may also make policies that are geared towards coexistence of state and federal policy. Some of the Union policies may be preemptive for reasons of fostering uniformity of national policy. A good example is the Wagner Act of 1935 which guides all state law regarding labor unions and relations between employee and employer. A watershed case in the issue of the supremacy clause and the tenth amendment is the 1956 case of Pennsylvania versus Nelson. This case made provisions for assessment criteria in instances of the federal government preempting the states without an explicit stating of intent. The criteria asks questions on; whether federal law is so pervasive so as to lead to the presumption that Congress left the states with no leeway but to apply it as it; whether Union interest is so dominant that there is a presumption of an exclusion of enforcement of state law on an issue and lastly if the state laws present reasonable danger of conflicting with federal programs (McAlinnet al. 200-212). Question 4 The case of the father promising to pay $5000 dollars to his son if he refrained from taking Marijuana is very similar to the Hamer v. Sidway case. The contention by the defendant is that there is no consideration to support the promise made by the plaintiff making the promise unenforceable. The defendant would assert that the plaintiff benefited from his non usage of Marijuana. The father would argue on the basis that with or without the promise, the son benefitted from his abstinence from Marijuana. The father would also argue that he received no consideration from the promise and thus there is no contract. Such an agreement however lacks a basis in law since it would make contracts of mutuality unenforceable (McAlinn et al 156-8). In the enforcement of mutual contracts, courts typically do not consider the benefit accrued to the promise or whether it presents profit to any other person. Consideration is usually apportioned on the basis that there is a promise, or something has been done, forborne or that the promise has undergone any suffering. It is usual for the court to assume that the waiver of a right to do or not to do something upon being requested by another is adequate consideration. The son it must be assumed used to smoke Marijuana or could have if he wanted to. He abstained from smoking Marijuana for his duration of his college studies based upon the promise of $5000 that would be given to him by his father. Whether the son struggled with his abstinence from Marijuana is open to speculation. It is important to note that the son’s freedom to indulge in whatever he chose had been curtailed by his father’s promise. Since the son has fully performed what was required of him by his father, whether he benefited from abstinence or not is of no consequence to the court’s determination (McAlinn et al. 98-105). Another perspective that would take the benefit of the son into consideration would also look into how the father benefited from a legal perspective. A court in the ruling concerning the case will find that the contract presented consideration on the part of the son who gave up his right to indulging in Marijuana for the period of his college studies. The father therefore has to give the son the $ 5000. In the determination of the ethical considerations, The Hamer v. Sidway case would also apply in determining that the father had also accrued some benefit from his son not smoking Marijuana. The son not smoking Marijuana which is a banned substance benefited the father since he did not have to worry about his son getting arrested and to add to that the reputation of the family was protected. Question 5 The establishment clause provides that Congress is forbidden from making laws with regard to the establishment of any religion. The law forbids the compulsion of a person into joining, supporting or maintaining any religion. The law also forbids the state from giving out money form the public treasury in support of religious institution (McAlinn et el., 398-402). In order for an action undertaken to be considered not to be in violation of the establishment clause, there are three criteria used often referred top as the lemon test. The action must have secular intent; its primary or elemental effect should not serve to inhibit or advance religion; or foster entanglement of government and religion which is considered excessive. The definition of secular purpose is a controversial issue in the United States. The most used case is the Jackson v. Benson case of 1998 in which the court held that according low income parents a chance to educate their children in private schools which were funded by religious institutions was secular since its elemental purpose was fostering education rather than education. Funding of the Wiccans by the school funds the Wiccans in the university directly and is therefore a violation of the establishment clause. The primary effect of the funding of the Wiccans by the state university would be to advance the religion. A funding of the Wiccans is similar to the Board of Education of Kiryas Joel v. Lumet since it would promote the beliefs of the Wiccans as a group. This has to be contrasted with the State ex rel. Wisconsin Health Facilities Authority v. Lindner in which funding was channeled in order to benefit the public and not the religious group. Funding for the Wiccans would not violate the establishment clause if it is intended for public causes such as public health. Another principle of the lemon test is the excessive entanglement criteria. An act of government may not have the effect of advancing or inhibiting religion or may have a secular purpose, yet be considered to lead to excessive entanglement between the government and religion. A good example of the application of the principle of excessive entanglement is the 1995 case of Pritzlaff v. Archdiocese of Milwaukee. A priest was accused of negligence by a woman who had him on retainer. In its ruling the court refused to consider the matter as this would entail the court setting the standards for a priest which would in effect be excessive entanglement (McAlinn et al., 378-80). The provision of funds to the Wiccan would however not amount to excessive entanglement since the University would not be engaged in running the affairs of the Wiccans. In recent times, court decisions have tended to include other aspects in determining violations of the establishment clause. The court focuses on whether the effect of practice is the endorsement of a particular religion or coerces people to support or engage in religion. The provision of funds to the Wiccans is an endorsement of the Wiccan religion and therefore is a violation of the establishment act. In more recent decisions such as the2000 case of Mitchell v. Helms, the court took into consideration the objective impact and the subjective intention of an action. The subjective intention is intended to determine if it advances or gives endorsement to a religion. The objective effects are studied according to the effects an action would have on an ordinary individual. Would an action coerce or intimidate a citizen into supporting or shunning religious activity or religion (McAlinn et al., 69-89). The funding of the Wiccans would have the effect of creating animosity between the Wiccans and other religions and between those who believe in religion and those who don’t. Funding the Wiccans is thus a violation of the Establishment Clause. Work Cited McAlinn, Gerald., Rosen Daniel and Stern John. An Introduction to American Law. Durham, NC: Carolina Academic Press, 2005. Print. Read More