The Last Word: Assignment 19 for Wednesday "Do you ever have one of those days when everything seems unconstitutional?"

AP Government and Politics Chapter 9 "Do you ever have one of those days when everything seems unconstitutional?"

 Article III calls for Supreme Court, and “inferior courts” as Congress may from time to time establish  What kinds of things are notably absent?  Two important aspects that keep Court independent: ▪ Life tenure, no reduction in compensation

 **Why is it important to have one “court of last resort”?  **Why must “all possible care” be taken to defend the judicial branch?  **How could “permanent tenure” help the judicial branch remain independent?  **How does having a fixed salary that cannot be lowered contribute to the independence of judges?

 How does Congress answer the question left unanswered by the Framers in Article III?  More on structure later

th amendment: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 Key question:  Role/scope of the power of the federal government? – Limited but expanding  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 interpretation of the federal powers given in the Constitution. ▪ Consistent with a few surprises: Citizens United, ACA cases

The Last Word: Assignment 19 for Wednesday "NBC has suspended Brian Williams for six months without pay. Williams said he's not worried because soon his veterans benefits will kick in." –Conan O'Brien "A lawmaker in Tennessee is pushing to make the Bible the official state book. It would replace Tennessee's current state book, the menu at Cracker Barrel." –Seth Meyers "It was revealed that back in 2011 Michael Jordan was signing a poster for Obama's 50th birthday but spelled the president's name wrong. The president made sure Jordan's name was spelled right when he had him audited by the IRS." –Jimmy Fallon "According to a recent survey, 12 percent of Americans say that it's fine to cheat a little on your taxes. While the other 88 percent know not to talk to a guy with a clipboard asking them if they cheat on their taxes." –Jimmy Fallon "I like Mitt Romney. He looks like the guy who comes with the picture frame." –David Letterman "President Obama unveiled a $4 trillion budget for 2016 that would increase taxes on the wealthy and spend more money on education. He also made a snowball and put it in the oven, just to see which would last longer, his budget or the snowball." –Jimmy Fallon

 The ability of the federal courts to rule a law of Congress or the states, or an action by federal or state government (read: executive branch), 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 this suggest 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“.

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 first major case that tested the ability of the Court to rule on a law that Congress passed…  Between a nominated justice of the Peace under outgoing president John Adams (F – Marbury) and the new Secretary of State under Jefferson (D-R – Madison)  Rdg

 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....

 Marbury was, in fact, entitled to the commission  However, the Court does NOT have the power of mandamus (as given by the Judiciary Act of 1789), because that power was NOT “warranted” by the powers set out in the Constitution.  Thus, Marbury does NOT get the job, and the Court reserves the right to rule laws unconstitutional (in this case, one LIMITING their own power, in the short run)