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Marbury vs. Madison

The concept of judicial review was established in a Supreme Court decision made early in our country’s history—a decision in the case known as Marbury vs. Madison. Judicial Review means that we intend to live by the principles of the Constitution, and that we believe that judges trained in the law are best qualified to uphold these principles; for judicial review gives the judicial branch of our government—and the Supreme Court in particular—the right to determine the constitutionality of all laws.

In this landmark case, Chief Justice John Marshall found himself in a political dilemma involving the relationship of authority between the judicial and executive branches of government. The program explains how Marshall’s historic decision managed to both satisfy President Jefferson and permanently strengthen the power of the Supreme Court.

Questions for Discussion, Review and Research

1. By what means can the President and Congress check the power of the Supreme Court? 2. In what manner, other than by judicial review, could we as a nation determine the constitutionality of a law? 3. The judicial appointments of the late Adams administration were made in a “lame duck” session lasting from November to early March. What amendment has made it impossible for the same kind of thing to happen today? 4. Is there a way to prevent judges from writing their own preferences and possibly their prejudices into their legal opinions? 5. What is meant by the terms “separation of powers”? What do you consider the most important powers of Congress, the Supreme Court, and the executive branch, as stated in the Constitution? Why do you think so? 6. What might have happened if Marbury had brought his suit in a lower federal court, and had appealed the decision to the Supreme Court? 7. What is the meaning of “original jurisdiction,” as applied to the Supreme Court? If original jurisdiction of the Court were not spelled out in the Constitution, would the policies and practices of the Court be changed?

•McCulloch Vs. Maryland

The powers of the federal government are defined according to our interpretation of the Constitution. The extent of these powers is now always spelled out and it is sometimes necessary to determine if certain powers may or may not be implied. In our history, the question of implied powers has long been the subject of dispute between those who support a strong federal government and those who believe in the sovereignty of the state. One groundbreaking dispute over this issue was the case known as McCulloch vs. Maryland—a case that began after the War of 1812, when the founding of a National Bank caused this heated national controversy to come to a head.

Questions for Discussion, Review and Research

1. What is your understanding of “The Supremacy Clause” (Article 6, Section 2)? 2. Does the Tenth Amendment conflict with the “elastic clause” of Article 1, Section 8? 3. How did Justice Marshall’s opinion in the McCulloch case help to give truth to the term “elastic clause”? 4. Why does the states’ rights issue still create political, economic and social problems? 5. Does the Constitution get its authority from the states or from the people? Is there a difference? 6. What are some of the long-range effects of the federal supremacy over the states? 7. What are the meanings of the terms “loose construction” and strict construction” of the Constitution? How did they apply to the case of McCulloch vs. Maryland? How do they apply today?

•Scott vs. Sandford (The Dred Scott Decision)

The requirement that judges restrain their personal feelings and prevent outside factors from influencing their judicial decisions can be traced back to English common law. This practice is known as judicial restraint, and the abandonment of this essential principle is at the heart of a controversial case known as The Dred Scott Decision.

The Dred Scott Decision involved slavery and states’ rights, two subjects that elicited strong opinions from almost all Americans—subjects that even U.S. justices seemed unable to confront with professional open-mindedness and judicial restraint. Ultimately, the course of this case testified to the breakdown of compromise between North and South, a breakdown that led the country to civil war.

Questions for Discussion, Review and Research

1. If the Supreme Court had exercised judicial restraint in deciding the Dred Scott case, what kind of decision (or decisions) might it have reached? 2. Why has it been said that the Dred Scott decision destroyed any chance for moderates on both sides to reach an agreement on the slavery issue? Do you agree with the statement? 3. Was Chief Justice Taney correct in his assertion that the authors of the Constitution did not consider blacks, whether slave or free, to be United States citizens? 4. What aspect of the decision was most upsetting to opponents of slavery? What were the implications of the decision in regard to the right to own slaves even in states where slavery was forbidden? 5. Why was the transfer of the Scotts’ ownership from Mrs. Emerson to her brother in New York important in getting the case into the federal courts? What part of the constitution covers this?

•Plessy vs. Ferguson

During the period following the Civil War, the United States gave legal justification to racial segregation—revealing that although the country was ready to abolish slavery, it was not prepared to accept the concept of equal rights for blacks; the Supreme Court’s decision in Plessy vs. Ferguson underscored this fact.

After Lincoln’s death, the Fourteenth and Fifteenth Amendments to the Constitution were passed in order to provide “equal protection of the law” for all U.S. citizens. These amendments, however, were largely undermined by the passage of state laws discriminating against blacks and other minority groups. The principle of “separate but equal”—invoked in the case of Plessy vs. Ferguson—set a precedent for the ruling of segregation cases over the next sixty years.

Questions for Discussion, Review and Research

1. What protection does the Fourteenth Amendment give to minorities? To all citizens? 2. Before the Fourteenth Amendment was passed, would the Supreme Court have heard the case? Why, or why not? 3. How does one explain the fact that the lone dissent of Justice Harlan became the unanimous view of the Court fifty-eight years later? 4. How would you answer the legal arguments of the majority opinion in Plessy vs. Ferguson? 5. One of the points raised by Plessy’s counsel was that Plessy was only one-eighth black and looked white. Was this argument relevant? 6. Was Justice Harlan correct in stating that the real intent of “Jim Crow” laws differed from the intent expressed by those who made them?

•Brown vs. Board of Education

The Supreme Court continued uphold racial segregation under the principle of “separate but equal” until the 1950’s. At this time, they began to reassess whether or not “equal protection of the law,” as guaranteed by the Fourteenth Amendment, was in fact being carried out. Segregation in public schools—and the discriminatory nature of segregation—was questioned for the first time in Brown vs. Board of Education. Segregation was pronounced demoralizing and injurious to the education of a black child. The concept that segregation was detrimental to public education established the grounds for winning the suite, which proved to be an important achievement in the struggle for civil rights.

Questions for Discussion, Review and Research

1. To what extent did the Supreme Court go beyond law to determine that segregation in education was contrary to the Fourteenth Amendment? 2. Why as the Court’s order to integrate “with all deliberate speed” been a source of confusion and controversy? 3. Should a private club retain the right to refuse membership on the basis of race, religion or sex? 4. In 1948, in the case of Shelley vs. Kraemer, the Missouri Supreme Court upheld a private restrictive covenant that barred Negroes from holding real property in certain sections of St. Louis. The Court ruled that it was private, voluntary agreement among individual citizens. Do you think the decision was correct? Explain your view. 5. In 1938, Lloyd Gaines brought suit when he was denied admission to the Missouri University Law School because he was black. Missouri had offered to pay his tuition at an out-of-state law school. What do you think the court’s decision should have been? 6. What are the pros and cons of busing as a means of desegregating schools?

•Gideon vs. Wainwright and Miranda vs. Arizona

In all police arrests, the accused has the right to remain silent and to be provided with an attorney before and during questioning. He or she must also be informed of these rights, in order to exercise the “privilege against self-incrimination.” The provision of these rights is a result of fairly recent Supreme Court decisions based on the Fifth and Sixth Amendments to the Constitution. Although the purpose of these rulings is to aid suspects who may be poor, inexperienced or ignorant of the law, some people argue that these rulings provide a kind of protection for the professional criminal as well. In examining these two key Supreme Court decisions, this program explores an issue that remains a subject of controversy today: balancing the fight of the accused with those of society.

Questions for Discussion, Review and Research

1. Why is Clarence Earl Gideon’s self-prepared petition in forma pauperis such a good example of democracy in action? 2. Before appealing to the United States Supreme Court, Gideon had to apply for a writ of habeas corpus in Florida. Why? 3. At the time of the Gideon case, the federal courts, and all but thirteen states, provided counsel to poor defendants. To what extent do you think this affected the public reception of the Supreme Court’s decision? 4. Since the Gideon decision, the Supreme Court has also ruled that a poor defendant may have a psychiatrist appointed to help him in his defense, if he so requests. Do you consider this a proper extension of the principle in Gideon? 5. What are our basic fair trial rights according to the Constitution and its amendments? 6. In light of the Gideon and Miranda decisions, has the question of whether the Bill of Rights applies to state laws and procedures been settled? 7. Would you be satisfied if three police officers involved in a case swore that the defendant’s confession was voluntary? 8. Some people, including some justices of the Supreme Court, believe that the Miranda decision should be reversed. Do you agree?



The founding fathers created the Bill of Rights, but left succeeding generations of Americans the task of interpreting what these liberties meant. Our rights have most often been determined by court decisions; and the final word rests with the Supreme Court.

Privacy, often defined as the right to be left alone, is an abstract concept until a live legal issue is presented. In Roe v. Wade the issue was this: should a woman have the right to terminate her pregnancy, or can the interests of the state government prevent such freedom of choice?

The opinions of the justices can serve as the basis for student discussion views on the ethical and legal issues involved. A civics class may wish to use the roe case to discuss the far-reaching role of government. American history classes may find the Roe case useful in analyzing civil rights as they are interpreted now, and as they are interpreted now, and as they might be interpreted in the future.

• Summary of Content

The twentieth century, particularly the most recent decades, has seen a rising in the concern for women’s rights. The success of advocacy for women’s rights can be measured not only by such advances as the right to vote and the right to be admitted to all professions, but also to the increased presence of women in elected and appointive government offices. Thus, it was hardly a surprise when, in the early 1970’s, a case dealing with the right of a woman to end her pregnancy reached the Supreme Court. A pregnant, single woman brought the challenge to the state law of Texas, which limited the right of abortion to those women whose life was threatened by childbearing.

The Supreme Court’s 7-2 decision in Roe v. Wade was an attempt to balance the individual’s right to privacy against declared interests of the state in preserving maternal health and potentiality of life, as represented by the fetus. The Court avoided the problem of determining when life actually begins by dividing a pregnancy into three trimesters. The first trimester left the abortion decision to the woman and her physician. The second trimester gave the state the power to regulate abortions “in ways that are essentially related to maternal health.” During the third trimester, the Court held that a state government might forbid abortion, in the interest of maternal health, or in preserving “the potentiality of human life.”

Anti-abortion groups saw the Court’s decision as undue interference with existing state laws. Those in favor of women’s free choice welcomed the decision as a step in the continuing struggle for women’s’ total emancipation.

• Topics for Essays and Debate

1. The United States Constitution does not expressly speak of a right to privacy. Therefore, it does not exist, and the Supreme Court cannot create it.

2. No individual should be totally free from state government regulation if the state can show a legitimate compelling interest for its actions.

3. Human life begins at the moment of conception, the union of egg and sperm. Abortion of the fetus is equivalent to murder. Do you agree or disagree?

4. To divide a woman’ pregnancy into three distinct trimesters was not the intent of the Ninth and Fourteenth Amendments to the United States Constitution.

5. The right to privacy is implicit in the Constitution and the Bill of Rights, regardless of whether or not it is directly stated. The right of privacy includes the right of a woman to decide whether or not to bear a child.

• Questions for Discussion, Review and Research:

1. The Supreme Court has totally disregarded the rights of the unborn fetus. Do you agree? Why?

2. Why did the Supreme Court refuse to state when life begins?

3. A pregnant woman’s privacy must be balanced against the fact that she hold potential life within her. Do you agree? Why?

4. Under what circumstances, if any, should a woman be legally forced to have a child that she does not wish to bear?

5. The Court’s decision saves the lives of women from medical quacks and back-alley abortion. It is therefore justified. Do you agree or disagree? Why?

6. How does one determine which privacy rights are implied, if the constitution does not state this in expressed words?

7. May a husband obtain a court injunction against his pregnant wife, to prevent her from destroying the child he has fathered?

8. Should a pregnant girl under the age of 18 need parental consent to have an abortion? (See Bellotti v. Baird (Belotti I)), 428 U.S. 132 (1976).

9. The decision in Roe v. Wade was reached in part as a result of a 1965 Supreme Court Decision on reproductive rights (Griswold v. Connecticut) concerning a Connecticut law that made it a crime for couples to practice contraception equivalent to that on matters of abortion? Why, or why not?



One of the central concepts of the Constitution is the separation of powers among the legislative, executive and judicial branches of government. But two hundred years of American history have shown that the respective powers of the three branches sometimes overlap and conflict.

U.S. v. Nixon is an example of just such a conflict. It provoked an assertion by the President that he must have strict confidentiality of his correspondence and other materials in order to operate the office of the Chief Executive effectively. When these materials were used as evidence necessary in a criminal trial, the question presented to the Supreme Court wasw: Which brach should prevail?

U.S. v. Nixon can be used in an American history or government class to demonstrate that the separation of powers is not a static concept, but one that is continually evolving and developing.

• Summary of Content

The Framers of the Constitution wanted to create a government where the three branches, legislative, executive, and judicial would be as distinct as possible yet cooperate for the effective function of government. Their view of history had tught them that the concentration of power in the hands of the few led to tyranny, and the loss of personal liberties. But try as they might, the framers could not prevent some overlapping powers. In this case, President Nixon claimed the right to executive privilege, and refused to surrender documents in his possession despite a Federal court subpoena.

In reaching its decision, in this case, the Supreme Court drew upon the famous statement of Justice John Marshall in Marbury v. Madison, 1803: “It is emphatically the province and the duty of the court to say what the law is.” The Court also stressed the need for the accused in a criminal case to have access to every person’s evidence, since to do otherwise would injure the integrity of the justice system. At the same time, while rejecting President Nixon’s claim to executive privilege, in this case, the Court acknowledged a limited right of executive privilege in instances where national security or military and diplomatic confidentiality might demonstrably require it.

• Topics for Essays and Debate

1. The Supreme Court oversteps its Constitutional bounds when it claims that it is the final judge of the limits of executive privilege.

2. The President must of necessity be totally immune from the actions of the courts.

3. Congress may not force the President to incriminate himself by subpoenaing information which may be used in an impeachment proceeding against him.

4. The President is no more above the law than any private citizen. Any legal requirement, including the requirement to supply information under a subpoena, applies to the President just as it does to a private citizen..

• Questions for Discussion, Review and Research:

1. How can judges determine if subpoenaed material from a President is, or is not, harmful to the national interest?

2. The Court’s decision U.S. v. Nixon says that while the President is not above the law, he is unique within the law. Do you agree or disagree? Why or why not?

3. Is the Supreme Court the proper government agency to define the limits of executive privilege?

4. Why did the Supreme Court reject the concept of “absolute executive privilege?”

5. If Congress were to legislate guidelines to limit the concept of executive privilege, what would be your recommendations?

6. Should the President be absolutely immune from liability for civil damages resulting from his official acts? (See Nixon v. Fitzgerald, 457 U.D. 731, (1982).

7. Nixon accepted the decision of the Supreme Court, despite the fact that it led to his removal from office. What do you think would have happened if he refused?