1. Chapter 14 The Development of the Judiciary

2. Judicial Review Right of federal courts to declare laws of Congress and acts of the executive branch unconstitutional Right of federal courts to declare laws of Congress and acts of the executive branch unconstitutional The Court has declared over 160 federal laws unconstitutional The Court has declared over 160 federal laws unconstitutional Comparative Comparative No high court in Britain—Parliament is supreme No high court in Britain—Parliament is supreme Australia, Canada, & India have similar courts Australia, Canada, & India have similar courts

3. Two Views of the Court Strict-constructionist Strict-constructionist Loose-constructionist (activist) Loose-constructionist (activist) This does not necessarily coincide with liberals and conservatives!! This does not necessarily coincide with liberals and conservatives!!

4. The Court According to Our Founding Fathers Did not see the Court as a means of public policy Did not see the Court as a means of public policy Role was to solve disputes between people— contracts Role was to solve disputes between people— contracts Judges would apply existing laws as precedents Judges would apply existing laws as precedents Federalist 78 Federalist 78 Judiciary is “least dangerous” to political rights Judiciary is “least dangerous” to political rights “liberty can have nothing to fear from the judiciary alone” “liberty can have nothing to fear from the judiciary alone”

5. 3 Historical Phases of the Court 1. 1787-1865 Legitimacy of federal government v. state government Legitimacy of federal government v. state government 2. 1865-1937 Relationship between government and economy Relationship between government and economy 3. 1938-present Personal liberties and social equality Personal liberties and social equality

6. Phase 1: National Supremacy

7. Chief Justice John Marshall Lays the Foundation Marbury v. Madison (1803) Marbury v. Madison (1803) Judicial review Judicial review “necessary and proper” upheld “necessary and proper” upheld McCulloch v. Maryland (1819) McCulloch v. Maryland (1819) State may not tax an enterprise (bank) created by federal government State may not tax an enterprise (bank) created by federal government “supremacy clause” upheld “supremacy clause” upheld

8. Supremacy of Federal Government Upheld Gibbons v. Ogden (1824) Gibbons v. Ogden (1824) commerce clause of the Constitution grants the federal government the power to determine how interstate commerce is conducted commerce clause of the Constitution grants the federal government the power to determine how interstate commerce is conducted No monopoly could be given for steamboat travel on a river that was between 2 states No monopoly could be given for steamboat travel on a river that was between 2 states

9. But the Decisions Were Not Necessarily Enforced… Jeffersonian Republicans Jeffersonian Republicans Jacksonian Democrats Jacksonian Democrats Worcester v. Georgia (1832) Worcester v. Georgia (1832) Cherokees do not have to move Cherokees do not have to move Trail of Tears Trail of Tears

10. A Move Towards States Rights Marshall replaced by Roger B. Taney Marshall replaced by Roger B. Taney Dred Scott v. Sanford (1857) Dred Scott v. Sanford (1857) Slaves not citizens therefore they cannot sue in court Slaves not citizens therefore they cannot sue in court

11. Phase 2: Government & the Economy

12. When Should the Economy be Regulated by the States or the Nation? These years showed a strong attachment of the Court to private property These years showed a strong attachment of the Court to private property 14 th Amendment seen as also protecting private property 14 th Amendment seen as also protecting private property No state shall “deprive any person of life, liberty, or property, without due process of law” No state shall “deprive any person of life, liberty, or property, without due process of law” This is what turns the Court onto a course of judicial activism! This is what turns the Court onto a course of judicial activism!

13. Cases Limiting Regulation Pollock v. Farmers’ Loan & Trust (1895) Pollock v. Farmers’ Loan & Trust (1895) Unconstitutional to impose federal tax on income from interest earned from stocks & from banks Unconstitutional to impose federal tax on income from interest earned from stocks & from banks Hammer v. Dagenhart (1918) Hammer v. Dagenhart (1918) Production is not commerce Production is not commerce “the powers not expressly delegated to the national government are reserved" to the states and to the people “the powers not expressly delegated to the national government are reserved" to the states and to the people Actually prevented limitation of child labor Actually prevented limitation of child labor

14. Cases Authorizing Regulation Munn v. Illinois (1877) Munn v. Illinois (1877) states may regulate the use of private property "when such regulation becomes necessary for the public good” states may regulate the use of private property "when such regulation becomes necessary for the public good” Mugler v. Kansas (1887) Mugler v. Kansas (1887) State prohibition does not infringe on Fourteenth Amendment rights State prohibition does not infringe on Fourteenth Amendment rights Reserved powers from Hammer v. Dagenhart Reserved powers from Hammer v. Dagenhart

15. Cases Authorizing Regulation Plessy v. Ferguson (1896) Plessy v. Ferguson (1896) Separate but equal facilities are constitutional Separate but equal facilities are constitutional Not in violation of 14 th Amendment—no one has been violated of life, liberty, or property Not in violation of 14 th Amendment—no one has been violated of life, liberty, or property Segregation does not equal inferiority Segregation does not equal inferiority From 1887 to 1910 the Court upheld state regulations 80% of the time! From 1887 to 1910 the Court upheld state regulations 80% of the time!

16. Phase 3: Personal Liberties and Social Equality

17. The Focus Changes Stayed clear of regulation Stayed clear of regulation Moved to support of free speech Moved to support of free speech Began when FDR attempted to “pack” the Court Began when FDR attempted to “pack” the Court Has become extremely activist since the arrival of Chief Justice Earl Warren in 1953 Has become extremely activist since the arrival of Chief Justice Earl Warren in 1953 Federal government increasingly able to regulate anything from economy to liberties Federal government increasingly able to regulate anything from economy to liberties

18. Since 1992 The Court has backed away from so much regulation The Court has backed away from so much regulation Restoration of states rights Restoration of states rights United States v. Lopez (1995) United States v. Lopez (1995) possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce the law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity the law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity