Marbury v Madison 1803: Supreme Court can strike down unconstitutional laws
Judicial Review
Where the Supreme Court gets its power to nullify laws
Chief Justice Marshall established judicial review — the Court's power to declare laws unconstitutional. Not in the text of the Constitution — inferred from its logic. Foundation of constitutional law.
14th Amendment
14th Amendment: due process + equal protection — applies Bill of Rights to states
14th Amendment
Ratified 1868 — the most litigated amendment in history
Due Process Clause: government can't take life, liberty, or property without fair process. Equal Protection Clause: states must treat similarly situated people equally. Basis of most civil rights law.
Constitutional Interpretation
Strict construction: read as framers intended. Loose: read as living document.
Constitutional Interpretation
Two major schools of thought on reading the Constitution
Originalism (strict): interpret as framers intended. Living document (loose): interpret according to current context. Shapes judicial appointments and landmark rulings like Roe, Heller, Obergefell.
Due Process Clause
Due process: procedural (fair process) vs substantive (protection from unjust laws)
Due Process Clause
Two types of due process — both in the 14th Amendment
Procedural due process: government must follow fair procedures before taking life, liberty, or property. Substantive due process: some rights are so fundamental that government can't take them regardless of procedure used.
First Amendment Freedoms
First Amendment: five freedoms — religion (establishment + free exercise), speech, press, assembly, petition
First Amendment Freedoms
Five freedoms protected by the First Amendment
Establishment Clause: government cannot establish or favor a religion. Free Exercise Clause: government cannot prohibit religious practice. Freedom of speech: not absolute — incitement, true threats, obscenity not protected. Freedom of press. Right to peaceable assembly and to petition the government.
Religion
Establishment + free exercise clauses
Speech
Not absolute — incitement unprotected
Press
Free from prior restraint
Assembly
Peaceable assembly protected
Petition
Right to petition the government
Landmark Federalism Cases
Federalism landmark cases: McCulloch v Maryland (federal supremacy), Gibbons v Ogden (commerce clause)
Landmark Federalism Cases
Two cases that defined the balance of federal vs state power
McCulloch v Maryland (1819): Congress has implied powers beyond those enumerated; states cannot tax federal government. 'Necessary and proper' clause interpreted broadly. Gibbons v Ogden (1824): federal commerce power extends to navigation and interstate commerce — broadly interpreted. Together established national government supremacy.
Selective Incorporation
Incorporation doctrine: 14th Amendment gradually applied Bill of Rights to states case by case
Selective Incorporation
How the Bill of Rights was extended to apply against state governments
Bill of Rights originally applied only to federal government (Barron v Baltimore, 1833). 14th Amendment (1868) due process clause gradually used to 'incorporate' most Bill of Rights provisions against states. Not all rights incorporated — right to jury trial in civil cases, grand jury indictment. Nearly all criminal procedure rights now apply to states.
Three levels of judicial review for equal protection cases
Rational basis: law must be rationally related to legitimate government interest — very deferential. Intermediate scrutiny: law must be substantially related to important government interest (sex discrimination). Strict scrutiny: law must be necessary for compelling government interest, narrowly tailored (race, national origin, fundamental rights) — government almost always loses.
4th Amendment: no unreasonable searches. Warrant required unless exception. Exclusionary rule: evidence excluded if illegally obtained.
4th Amendment and Search
The right against unreasonable search and seizure
Warrant requires: probable cause + particularity (describe place to be searched, items to be seized). Exceptions to warrant requirement: consent, exigent circumstances (emergency), search incident to arrest, plain view, automobile exception, stop and frisk (Terry stop). Exclusionary rule: illegally obtained evidence cannot be used.
5th Amendment Rights
5th Amendment: no self-incrimination, grand jury, double jeopardy, due process, takings clause
5th Amendment Rights
Five separate protections in one amendment
Grand jury: federal felonies require grand jury indictment. Self-incrimination: cannot be compelled to testify against yourself — Miranda warnings required before custodial interrogation. Double jeopardy: cannot be tried twice for same offense after acquittal. Due process: federal government. Takings: private property taken for public use requires just compensation.
Grand jury
Federal felonies
Self-incrimination
Miranda rights
Double jeopardy
No retrial after acquittal
Due process
Federal government
Takings
Just compensation required
Commerce Clause
Congress Controls Commerce — broadest federal domestic power
Article I, Section 8 — Congress can regulate interstate commerce
The Commerce Clause is the constitutional basis for most federal domestic legislation
Article I gives Congress power to regulate commerce among the states. Expanded post-New Deal: Wickard v. Filburn (wheat for personal use still affects interstate commerce). Lopez (1995) and Morrison (2000) imposed limits — must substantially affect interstate commerce. Basis for Civil Rights Act, drug laws, environmental regulation.
Channels
Roads, waterways, airspace of interstate commerce
Instrumentalities
Trucks, planes, internet used in commerce
Activities
That substantially affect interstate commerce
14th Amendment
DEEP — Due process, Equal protection, Everyone born here is a citizen, Privileges
14th Amendment — four clauses that revolutionized constitutional law
The 14th Amendment applies the Bill of Rights to states and is the most litigated amendment
Citizenship: all persons born or naturalized in the US are citizens (overturned Dred Scott). Due Process: states cannot deprive of life, liberty, or property without due process — incorporates most Bill of Rights protections against states. Equal Protection: states must treat similarly situated persons similarly — basis for desegregation, gender equality, marriage equality.
Due Process
Procedural and substantive — applies Bill of Rights to states
Equal Protection
Brown v. Board, Obergefell — landmark cases built on this
Citizenship
Birthright citizenship — overturned Dred Scott decision
Judicial Review
Marbury Made it — Marshall established courts can strike down laws
Marbury v. Madison (1803) — not in the Constitution, created by courts
Judicial review gives courts final authority over constitutional questions — not written in Constitution
Chief Justice Marshall: the Constitution is supreme law; courts interpret law; therefore courts must be able to void laws that conflict with the Constitution. Applied to federal AND state laws (via 14th Amendment). Gives federal judiciary enormous policy-making power.
Marbury
1803 — Marshall's most consequential decision
Power
Strike down laws inconsistent with the Constitution
Scope
Federal and state laws — all subject to constitutional review
Separation of Powers
LEC — Legislative makes laws, Executive enforces, Courts interpret
Three branches — each with distinct powers and checks on the others
No single branch is supreme — each can check the others through constitutional mechanisms
Legislative (Congress): makes laws, controls budget, declares war, confirms appointments, impeaches. Executive (President): enforces laws, commands military, vetoes, appoints, conducts foreign policy. Judicial (Courts): interprets laws and Constitution via judicial review. Key checks: veto and override, advice and consent, impeachment, appointments power.
Congress checks President
Override veto, impeach, confirm appointments, declare war
President checks Congress
Veto bills, call special sessions, recommend legislation
Courts check both
Judicial review of laws and executive actions
🎓 Common Exam Questions
Q: What is judicial review, where did it come from, and what is its significance?
A: Judicial review — the power to strike down laws that violate the Constitution — was established in Marbury v. Madison (1803). Chief Justice Marshall's logic: the Constitution is supreme law; courts interpret law; therefore courts must be able to void laws that conflict with it. Not written in the Constitution — inferred by Marshall. It established the US as a constitutional democracy where no branch is above the law and gave the federal judiciary enormous power to shape policy over two centuries.
Q: Explain the three levels of Equal Protection scrutiny and when each applies.
A: Rational basis review: applies to most laws including economic regulation. Government needs only a legitimate interest and the law must be rationally related — very deferential, almost always upheld. Intermediate scrutiny: applies to sex-based classifications. Government must show an important interest substantially related to means. Strict scrutiny: applies to suspect classifications like race and national origin, and fundamental rights. Compelling interest plus narrowly tailored means — almost always fatal to the law. The higher the scrutiny the more likely courts strike down the law.
Q: What does the First Amendment protect and what are its main limits?
A: The First Amendment protects freedom of religion (Establishment plus Free Exercise Clauses), speech, press, assembly, and petition. Core protection is political speech — government cannot restrict based on viewpoint or content. Unprotected categories: incitement to imminent lawless action (Brandenburg), true threats, obscenity (Miller test), defamation, fraud, fighting words, child pornography. Government can regulate time, place, and manner if content-neutral, narrowly tailored, and alternative channels remain open.
Q: How does federalism work in the US and what powers do states retain?
A: US federalism divides sovereignty between national government (enumerated powers plus Necessary and Proper Clause) and states (reserved powers via 10th Amendment). Federal powers: regulate interstate commerce, tax and spend, conduct foreign affairs, raise armies. State police power: health, safety, welfare, morals. Supremacy Clause: valid federal law preempts conflicting state law. Commerce Clause is the broadest domestic federal power — expanded dramatically post-New Deal. Fiscal federalism: federal grants with conditions shape state policy.
Q: What are the key criminal procedure protections of the 4th, 5th, and 6th Amendments?
A: 4th Amendment: protects against unreasonable searches — warrant required (probable cause plus particularity) with exceptions including consent, exigent circumstances, plain view, automobile, and search incident to arrest. Exclusionary rule: illegally obtained evidence excluded. 5th Amendment: grand jury for federal felonies, no double jeopardy, no compelled self-incrimination (Miranda rights required before custodial interrogation), due process, just compensation for takings. 6th Amendment: speedy public jury trial, right to confront witnesses, right to counsel (government must provide if defendant cannot afford one — Gideon).