"Do you ever have one of those
days when everything seems
unconstitutional?"
AP Government and Politics
Wilson: Chapter 14
Is the Supreme Court the “weakest” of all
branches?

Key question:
 What is the role/scope of the power of the
federal government?

Key decisions:
 Marbury, McCulloch, Gibbons

John Marshall (1801-1835)
 Influences early Court decisions in favor of
stronger government; develops power of the
Court from almost nothing…

Roger Taney (1836-1864)
 Takes over after Marshall…moves court in
different direction
 Away from federal power, more towards states’
rights
 Key decision: Dred Scott

Key question:
 When would the economy be regulated by the states, and
when it would be regulated by the national government?
▪ Rise of national economy coincides with final decision on national
supremacy (Union victory)
 Key decisions: Slaughterhouse cases

Idea of 14th amendment “personhood” began to be
applied to businesses as well
 This increases the number of cases coming to Court, as
businesses begin challenging regulations
▪ Begins a more activist period on the Court (at least from the
perspective of striking down laws)

Not pro- or anti-business
 Difficulty was in determining what were reasonable
restrictions on businesses

After the New Deal, Court steps away from deciding
constitutionality of regulations
 Leaves these up to legislatures
 Key event: the “switch in time that save nine”
▪ FDR attempts to “pack the Court”; rather than have 6 justices added,
Court (Owen Roberts) begins to rule more favorably toward ND
programs

The Warren Court (1953 to 1969)
 Concerned primarily with promoting individual rights
▪ Some of the most famous decisions in our history dealing with civil
liberties and individual rights
 Brown, Miranda, Mapp, Gideon, Griswold, Engel, Loving,
others

From the early 1990s to the current day, the Court
has taken a more conservative approach to many
issues.

The Rehnquist Court (1986-2005) and the Roberts
Court (2005 – Present)
 Both have consisted of conservative majorities
▪ Have tended towards enabling states to determine more laws
on their own (Morrison, Lopez, Gonzales v. Oregon), and a
stricter construction of the Constitution.

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.

The case that “gave” the federal courts the power
to determine whether actions/laws of states or the
federal government violated the Constitution
 Between a nominated justice of the Peace under John
Adams (F – Marbury) and the new Secretary of State
under Jefferson (D-R – Madison)

Court ruled that part of the Judiciary Act of 1789
(granting the Court the power to issue writs of
mandamus) was unconstitutional
 The Commission for Marbury did not have to be
delivered (victory for Jefferson) but Courts gain power of
judicial review

The powers of the legislature are defined and limited; and that those limits
may not be mistaken or forgotten, the constitution is written. . . .

Certainly all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and
consequently the theory of every such government must be, that an act of
the legislature, repugnant to the constitution, is void. . . .

It is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. 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; if both the law and the
constitution apply to a particular case, so that the court must either decide
that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. . . .