# US Constitutional Law/Printable version

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# Introduction

In 1787 the Constitutional Convention drafted a proposed new charter for the government of the United States. The Constitution was designed to make the federal government a more effective means to avoid wasteful tariff competition among the 13 states and to pay off the national debt. The Articles of Confederation's shortcomings led to the question to be settled is "Who gets the last word?" In the pre-amble it clearly states "We the People" and that is the understanding that led to the use of separate ratifying conventions in each state.
While some view Constitutional law, like Larry Kramer, as more than just the courts's review of the actions of government, most people limit the topic to just the work of the courts and mainly the United States Supreme Court at that.
After covering the origin of Judicial Review, there are two main areas of ConLaw: Rights of persons and citizens - and - powers of government.

# The Constitution
### History

The Articles of Confederation were flimsy at best in securing the desired amount of control between States and unified government. Throughout the years that the Articles of Confederation were in effect, the supreme level of government was debatably the States. The States had the control to not allow the Confederation's mandates to be acted upon, for instance, taxing was a recommendation from the Articles government. States didn't need to collect taxes for the Confederation if they wanted to and the economy suffered as a result. In New York, documents from New Jersey and other States were not accepted as valid, which created a large conflict on its own which could have potentially turned deadly. With all this being said, it was necessary for a group of delegates to come together and receive what they had created.
In 1787, a group of delegates gathered not to draft a new Constitution, but rather revise the Articles of Confederation. After some deliberation of what needed to change, the group thought of the idea to draft an entirely new document, which would be more powerful than the last. Not every delegate enjoyed entertaining this thought though. The Southern States were opposed to too much Government because of the fact that the proposed Congress was meant to be both based on population and equal representation, while the North appreciated a divided Congress, because smaller States in population would be able to have the same representation as a Virginia, (Very large state). This created the modern Congress system of 2 Senators from each state, and 435 Congressmen that are divided by region from each state.
It is important to know that the delegates thought of themselves as citizens of their state, not citizens of the Confederation of America.
Long story short, proposals were made to have Congress set up in ways of population compared to equal representation. The result was the Virginia plan, where a bicameral legislature was added. Presidential powers were debated, and a oath of office was added. One prevailing opinion which was very influential was one of James Madison, who in his Federalist papers, proposed a opinion that the branches of Government (Legislative, Executive, and Judcial) needed to be checked against each other in order to ensure that "tyranny of the Majority" would not create a tyrannical government which they claimed they had seen from Britain. James Madison was also a interesting figure in the fact he believed that the government should be out of the hands of the people. For that reason, only the House of Representatives and President were voted upon by the people. During that time, the Senate was voted and installed by the state legislatures until the 17th Amendment. With the idea of the power of government being out of the hands of the people, it would be much harder for one branch to become tyrannical.
During this time, factions formed. Though these were not parties just yet, the factions worked similarly in the way that ideologies formed. Many Northern delegates were Federalists, while many Southern delegates were Anti-Federalists. The reason for this was because Federalists promoted a stronger federal government while Anti-Federalists promoted State interests more.
A major point left out of debate were Women's rights, because of the idea that Women shouldn't be tainted with the dirtiness of politics. Slaves were brought up though, because in a house of population, they could be counted. If slaves in Southern States were counted as population, States like Virginia would be able to have a majority in the House of Representatives. Eventually the 3/5ths compromise was made, and for every slave, they were counted as 3/5ths of a person. For tax reasons, this would make a State like Virginia pay more taxes, but they would also have more voting power.
Congress and the Executive were placed at higher positions than the Judcial at the beginning. Congress could raise an army, Executive could command it, but Judcial had no was to enforce their laws, therefore in Andrew Jackson and Abraham Lincoln's presidency, laws and rulings were not followed. Judcial didn't even have the power to exercise Judcial review until a few years later, for that reason, some appointees to the Supreme court sometimes turned their recommendation down in order for their appointment at a lesser state Supreme court which was seen as more prestigious at that time. The Judcial power comes from Article 3 of the Constitution.
With the fear that the government would become too powerful, mostly lying with the Legislative, the 1st Article lists what the Legislative can do, but also what they cannot do. If the Legislative could only do what was listed in Article 1 § 8, they would be severely prohibited though. That is why there are enumerated powers, concurrent powers, implied powers, and reserve powers. We will discuss Reserve Powers in the Bill of Rights section below. Enumerated powers are those that are listed in Article 1 § 8, those include raising an army, taxing, and approving Executive nominees. Concurent are those shared by States and federal. Taxing is an example. Implied powers are those that are discussed in the elastic clause, "Necessary and proper", which have given laws such as declaring War, for which a president has 60 days to convince Congress to declare War. The Legislative could be the most powerful branch, because they control the law making, and they have a force to back them. This is particularly why they have strong checks and balances against them. These include Judcial Review, and the Executive's signature to enact a law.
The Executive branch is quite powerful as well, and their role is discussed in Article 2 of the Constitution. They controlled an army and could have War, (only was it in the 1970's that the 60 day declaration of War was put into place). The Executive can approve a law, or veto it to send it back to Congress for a 2/3rd vote, which is very difficult to achieve. They can issue Executive orders, which command their cabinet to change practices in government organizations such as the CDC or FBI. They send Congress a recommendation for a budget and hold a strong hold of foreign diplomacy. The Executive has its limitations though. When a new supreme court justice is appointed, the Senate must approve of the recommendation, this is true for the lesser Circuit courts of the US as well. The President can be impeached by the Congress and needs approval to ratify treaties. The founding fathers certainly did not expect to see the Executive branch become so powerful as it has today. Throughout times of War and blatant disregard for the law, the Executive has gained many powers that were not expected.
Now that the first 3 Articles have been discussed, we must move to the 4th, which is state and government relations. There are three major details that need to be discussed, Full faith and credit, extradition, and Privileges and immunities. Full faith and credit means federal documents are accepted everywhere, IE. Drivers License. Extradition means crimes committed by a person in one state shall be seen as crimes in another state, in this sense, if someone kills someone in Boston and is found in Houston, they shall be extradited to Boston for trial. Privileges and immunities means every person shall be treated with the same laws. If a man from Wisconsin goes to Montana, a Montana man shall be treated with the same laws and the Wisconsin man. The 4th Article also ensures States shall be protected from invasion. The 4th Article is important because it makes the States more connected than before. Instead of people thinking of themselves as New Yorkers, they started thinking of themselves as Americans, because the laws were treated the same everywhere and federal documents were applied everywhere.
The Fifth Article deals with the amending process. There is a 2 ways to propose ratification and 2 ways to approve it. To propose it, 2/3rds of both houses must approve it, or 2/3rds of state legislators in a national convention. The 2 ways to approve, 3/4th of state legislatures, or 3/4th of state delegates at national convention. The amending process is done mostly in one way and the way of the state convention has never been used because of how dangerous it could be. To open up the Constitution and be able to change anything would be extremely powerful, thus it has never been used.
Article Six deals with supremacy. The Article States that the law of the Federal US is supreme to States. It also establishes that no religious test shall be taken for people seeking office. This would be affirmed in the First Amendment Establishment clause which makes no national religion.
Article Seven deals with ratification. Ratification of the Constitution would by law need 9 out of the 13 States, which was not easily obtainable. In reality though, the Government needed 13/13 States to ratify, so that the Government could actually have control. With all the compromises made, many of the States joined without too much of a hiccup. A problem did arise when many southern States came together to state that in order of ratification, they needed to have 12 Amendments immediately passed. Eventually, the Federalists and Anti Federalists came together and agreed to ratify 10 of the twelve Amendments. These became the Bill of Rights, which will be discussed below. With 12 out of the 13 States ratifying the Constitution, the law had been set. There was only one state left, Rhode Island, which was semi forcefully made to sign the Constitution after they realized they had no other choice economically and politically. Though the Constitution had been ratified, there were still many problems left unsolved, such as slavery. The three Branches were not equal, the checks and balances were unstable and a War was to come along with economic problems with the French. The Constitution was not a final document to end all the problems, but it allowed the Government to take the necessary control and continue the American life.

### Bill of Rights

The Bill of Rights consists of 10 Amendments to the Constitution which were ratified in order to ensure 13/13 of the states would approve of the Constitution.
Amendment 1:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This means the US shall have no national religion, but allows for private citizens to have any religion they please. Free speech, with limitations on seditious, obscene, hate, etc. Free press, including prior restraint, (Government cannot prohibit news from publishing unless in a matter of utmost national security (NY Times v US)). Right to assemble, with limitation on hours, traffic control, application process. Petition to the government, IE. calling Senator and telling him what you think about a certain bill. This amendment has now moved to expression, IE. a Nazi has the right to practice their beliefs as long as it is not violent (National Socialist Party of America v. Village of Skokie (1973)).
Amendment 2:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This is the amendment which protects the right to bear arms. There is restrictions though. You cannot own a automatic weapon or a bump stock without proper licensing by the ATF.
Amendment 3:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Mostly a law to deal with the British troops quartering in your home. This is not common today.
Amendment 4:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Unlawful search and seizure not tolerated but if there is probable cause, it is allowable. Search warrant is needed to search a home without probable cause. One interesting thing about this is that if a authority uses a warrant to search for firearms in your home and finds cocaine instead, they need a additional warrant to seize that property. Learn more with (Mapp v Ohio).
Amendment 5:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This is a loaded amendment. It includes imminent domain, where property given to the government must receive just compensation. It also includes no double jeopardy (meaning tried for the same crime twice) along with the right to remain silent to not incriminate yourself.

# Judicial Review
## Introduction

The people hold in high regard the Supreme Court's ability to review the laws of Congress and the actions of the federal government. However, this action is not expressly written in the Constitution. Article III of the Constitution, which expresses the power of the Supreme Court, does not state that the Supreme Court has the power to review the law. Instead, there are some underlying implications made through case law, thought experiments, and Article VI Clause 2 that thereby gives the Supreme Court this power.

### Dr. Bonham’s Case

8 Co. Rep. 107a, 114a C.P. 1610. Full text available here
Parliament passed a law authorizing the College of Physicians in London [CPL] to fine -and possibly imprison- anyone who practiced medicine in London for more then a month who was not a CPL graduate. Continued defiance of the law carried the possibility of immediate imprisonment and an additional fine. The CPL collected half of every fine imposed. Dr. Thomas Bonham graduated from medical school in Cambridge; and was charged with the unlicensed practice of medicine in London. He was fined, imprisoned, and sued to get his release.
Before moving into Coke’s opinion some old uses of contemporary words need to be accounted for. The CPL is a “censor” in that it is restricting the practice of medicine, in the same way that today one thinks of a censor as restricting the free flow of information. The CPL also acts as a “party” to the case, because it stands to benefit from any judgments against unlicensed doctors. Lord Coke begins his analysis by saying that no one can be both a “censor” and a “party” to the same case.
Now Coke runs into a problem because CPL is authorized by statue to operate in both capacities. Coke’s solution is to find that “…in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void” [original spelling]. Notice what Coke is doing; the British Parliament was seen as a democratically elected body, and the judiciary was not. In order to claim the authority to overturn an act of Parliament, Coke is implicitly asserting the supremacy of the judiciary over the legislature.

### Policy Analysis
## The Federalist # 78 - The Judiciary Department

Link to Full Text
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of the proposed government...
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body...
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws...
PUBLIUS.

### Why The Federalist Matters
## Marbury v. Madison

U.S. Supreme Court MARBURY v. MADISON, 5 U.S. 137 (1803) 5 U.S. 137 (Cranch)
Mr. Chief Justice MARSHALL delivered the opinion of the court.
By the constitution of the United States, the president is invested with certain important political powers, in the [5 U.S. 137, 166] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the court. [5 U.S. 137, 167] The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the president according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.
The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority, If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority.
So, if he conceives that by virtue of his appointment he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.
That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.
It is then the opinion of the court,
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law?
If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is [5 U.S. 137, 171] again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right to be done to an injured individual, than if the same services were to be performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that in 1792 an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, congress passed an act in February 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures as might be necessary to obtain an adjudication of the supreme court of the United [5 U.S. 137, 172] States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.
When the subject was brought before the court the decision was, not, that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case-the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of all claims of that description; and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.
It is to deliver a commission; on which subjects the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so [5 U.S. 137, 173] appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by another person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'
The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.
The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present [5 U.S. 137, 174] case; because the right claimed is given by a law of the United States.
In the distribution of this power it is declared that 'the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.'
It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. [5 U.S. 137, 175] If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to [5 U.S. 137, 176] appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro- [5 U.S. 137, 177] hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
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.
This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
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. [5 U.S. 137, 178] 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.
If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.
The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'
If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?
'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.

### Analysis & Background
## Criticisms
### The Counter-Majoritarian Difficulty
# Introduction to Governmental Structure

The U.S. Constitution, ratified on June 21, 1788, contained no Bill of Rights.

# Freedom of Religion

Can I smoke peyote as part of my religion (even if it violates Federal drug laws)? What about practicing bigamy? Do I have to pledge allegiance to the flag if my religion forbids it? And what about prayer -- can I do it in a school? What about at a town council meeting? In deciding these kinds of cases, the Supreme Court has, over time, developed principals to regulate conflicts between religion and law.
Religious freedom is guaranteed by the U.S. Constitution in the First Amendment as quoted above. It has two components, corresponding to the two clauses in the amendment's text: the separation of church and state, which is proclaimed in the Establishment Clause ("Congress shall make no law respecting an establishment of religion") and the freedom of each individual to exercise their religion, expressed in the Free Exercise clause ("or prohibiting the free exercise thereof"). This dual guarantee protects the individual from a government institutionalization of religion, and at the same time protects individuals from a government hostile to their religion. However, the fifteen word guarantee in the First Amendment wouldn't reach it's full potential until the 20th century.
The freedom of religion is guaranteed by the Constitution in the First Amendment. The text of the constitutional prohibition against religious establishment is called the Establishment Clause; the text of the guarantee of the "free exercise" of religion is the Free Exercise Clause. Initially, these First Amendment freedoms meant that the national government could not abridge the religious rights of individuals. In the early 20th century, these freedoms were "incorporated against the states" through the Fourteenth Amendment [see Incorporation and Cantwell v. Connecticut, 310 U.S. 296 (1940)]

## Established religion
### History

By the early 18th century, all 13 American colonies were founded and had a state-supported religion. On December 15, 1791, the First Amendment was ratified along with the other 9 amendments of the Bill of Rights. The First Amendment, forbade congress from passing laws to establish a national religion. However it did not forbid states from establishing a state religion. By 1833, with Massachusetts's passing Amendment IX to its constitution, all the states had disestablished religion.

## Free Exercise

From a casual reading of the amendment, the free exercise clause implies that individuals are free to follow a religion's customs since laws cannot prohibit it as such. Indeed, if Congress were ever to make a law that explicitly prohibits the religious practice in name is itself unconstitutional. However, the Supreme Court has limited the interpretation where the law is facially neutral.
The interpretation regarding the free exercise clause has historically shifted continuously between the "action-belief" distinction and the "compelling interest" requirement. The Supreme Court often changes its understanding of this clause that the current doctrine may not be reliably stated without stating a possible exception. For the most part, The Supreme Court assumes the doctrine of Action-Belief more than the compelling interest requirement.

### Action-Belief Doctrine

The early doctrine, Belief-Action, held that belief and opinion is constitutionally protected but action is not. This early doctrine was likely established in Reynolds v. United States, 98 U.S. 145 (1879). The Supreme Court addressed many questions but of interest to us is this: Should the accused have been acquitted if he married the second time [while still married to the first wife], because he believed it to be his religious duty? The Supreme Court answered the question as such:
   ...The only defen[s]e of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.
While Reynolds made it clear the Action-Belief doctrine of the Supreme Court, due to the large amount of cases of polygamy due to the religious practice from mostly members of the Church of Jesus Christ of Latter-day Saints (LDS), informally known as Mormons, Congress passed legislation that effectively barred bigamists, polygamists, and any person cohabiting with more than one woman from suffrage or jury duty. This 1882 Congressional legislation was sustained by the Supreme Court in Murphy v. Ramsey, 114 U.S. 15 (1885).
Later, Congress enacted legislation that allowed the expropriation of property and the repeal of the charter of the church for the purposes of disallowing polygyny practices. The Supreme Court also sustained this in The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), stating that since Congress acquired the territory through treaty, created legislation that made it so that the established corporations will be following the laws of the U.S. and Utah formerly, and the LDS was public corporation, Congress had the full right to repeal the charter of the corporation, id. pp. 44-46, and abrogate its property as such, id. p. 47.

### Compelling Interest Doctrine
# Freedom of Speech

The Freedom of Speech is guaranteed by the Constitution in the First Amendment. The Supreme Court of the United States perhaps protects this aspect of the First Amendment the most among all the clauses found therein, with Freedom of the Press being tied with it. Nevertheless, the Supreme Court has found that there are exceptions to this freedom in very limited contexts. In some other instances, the Supreme Court has defined certain other aspects of speech to be constitutional where a first glance may appear to not be.
Do we have the right to contribute money to political campaigns on the basis of freedom of speech? Do students have the right to display a banner that reads "Bong Hits 4 Jesus" at a corporate-sponsored rally in which the school gave permission to attend? What limitations, if any, do commercials have when advertising? Do we have the right to sit during the pledge of allegiance even when compelled to by law or government actor? Am I allowed to burn the flag in a public event? Do I have the right to ignore loyalty oaths or affirmations if it is against my beliefs?
These were questions addressed by the Supreme Court on some occasion or other, and these are not all the questions addressed by the Supreme Court. Here is a wikipedia page that lists more cases that the Supreme Court has addressed.

## Public School Students

* ↑ https://undergod.procon.org/religion-in-the-original-13-colonies/
* ↑ https://malegislature.gov/Laws/Constitution#partTheFirst
* ↑ http://www.statelegalhistory.com/home/1-new-england-legal-history/1-2-new-england-1787-1833-the-early-national-era/1-2-1-new-england-1787-1833-the-end-of-state-supported-religion