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?

 Key question:  what is the role/scope of the power of the federal government?  Key decisions:  Marbury, McCulloch, Gibbons  John Marshall ( )  Influences early Court decisions in favor of stronger government; develops power of the Court from almost nothing…  Roger Taney ( )  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 14 th 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 ( ) 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