AP Government and Politics
Wilson: Chapter 14
"Do you ever have one of those days when
everything seems unconstitutional?"
Is the Supreme Court the “weakest” of all
branches?

The ability of the federal courts to rule a law of Congress or the states, or
an action by federal or state government, unconstitutional.
 Not unique, but uncommon in the world.
 Not created by the Constitution explicitly, and its use under the Constitution
was not the first time it had been used.
▪ Used before 1787 by state courts to strike down state laws that violated state
constitutions.
▪ Was first used in Marbury vs. Madison (1803)
 Does it suggest that the framers did not intend to give the courts such a
power? Not necessarily, although that is one explanation for its absence.
 It is also possible that the framers thought the power of judicial review was
sufficiently clear from the structure of government that it need not be
expressly stated.

Why should the federal courts have the right of judicial review?
 Because the Constitution is the “supreme law of the land”, there must be some
person or group who judges when that law has been violated; it cannot be
Congress or the President, because they are the ones who need to be
controlled by their actions…
 “Active” vs. “Passive” branches

In his opinion for the Court in West Virginia v. Barnette (1943),
Justice Robert Jackson explained why judicial review is used
to protect minorities against the possible tyranny of majority
rule.

He wrote, "The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be
applied by the courts.

One's right to life, liberty, and property, to free speech, a
free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they
depend on the outcome of no elections“.

There are generally two ways that judges can look at
the Constitution when making a decision:
 Strict construction (aka, judicial restraint, or originalism)
▪ This is the belief that laws should not be struck down by the court
unless the text of the Constitution specifically forbids them;
▪ Typically, a restraint position would not void a law unless the conflict with the
Constitution was explicit, or required little interpretation.
 Activism (or judicial activism)
▪ Belief that the job of the court is to apply the Constitution to current
circumstances, and consider the political, legal, economic or religious
circumstances of the day when making decisions.
▪ Typically, an activist position would void laws by pointing to the “spirit” or
values embodied in the Constitution as applied to current circumstances
Many people know the first Supreme Court decision to declare an act of
Congress unconstitutional (It's Marbury, of course), but few people could
identify the Court's first decision declaring Executive Branch action to be
unconstitutional.
Little v Barreme (1804), called the Flying Fish case, involved an order by
President John Adams, issued in 1799 during our brief war with
France, authorizing the Navy to seize ships bound for French ports. The
president's order was inconsistent with an act of Congress declaring the
government to have no such authorization. After a Navy Captain in
December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's
order, the owners of the ship sued the captain for trespass in U. S. maritime
court.
On appeal, C. J. Marshall rejected the captain's argument that he could
not be sued because he was just following presidential orders. The Court
noted that commanders "act at their own peril" when they obey invalid
orders--and the president's order was outside of his powers, given the
congressional action.

Text that is at issue:
 Prop 8:
▪ …SEC. 7.5. Only marriage between a man and a woman is valid or
recognized in California.
 The US Constitution, 14th amendment:
▪ No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.