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.