Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (27 page)

Although Marshall believed that Marbury had a legitimate right to his commission, he went on to conclude that the Supreme Court had no legal authority to force Secretary of State Madison to issue the commission to him. Although a portion of the Judiciary Act of 1789 had given the Court the right to issue writs of mandamus, Marshall and his fellow justices ruled that that portion of the act was “repugnant to the Constitution.” And then he made a bold leap, pronouncing:

With that statement, the Supreme Court held the Judiciary Act of 1789 to be unconstitutional and, in the process, asserted the power of judicial review—the right of the Supreme Court to strike down an act it believes to be unconstitutional. In asserting that right, the Supreme Court set the judicial branch, which had been viewed by the framers of the Constitution as the least powerful and least consequential of the three branches of government, on a course to becoming a genuinely coequal branch of government.

The decision in
Marbury v. Madison
was carefully crafted so as not to appear to assert a sweeping power of judicial review over all pieces of congressional or state legislation, and because the specific issue involved was a relatively narrow one, Marshall’s ruling provoked little opposition. Indeed, the Supreme Court in subsequent years would only sparingly use its newly claimed power of judicial review over laws passed by Congress. It would not strike down another federal law until its ruling in the
Dred Scott
decision in 1857.

MCCULLOCH V. MARYLAND (1819).
AS WE HAVE SEEN in chapter 5, the proposal by Secretary of the Treasury Alexander Hamilton to create a Bank of the United States, subsequently enacted by Congress and signed into law by President Washington, provoked two competing constitutional doctrines: the “strict constructionist” doctrine articulated by Thomas Jefferson and the “broad constructionist” doctrine favored by Hamilton.

In 1816 Congress reaffirmed the broad-constructionist principles underlying the creation of the First Bank of the United States by offering a new charter to a Second Bank of the United States. The state of Maryland attempted to challenge the constitutionality of the bank by imposing a tax on its Baltimore branch that would have effectively made it impossible for it to do its business. The Supreme Court, with John Marshall writing the decision, ruled that Maryland did not have the right to interfere with the bank’s operations and, more important, also affirmed the constitutionality of the bank by using a broad-constructionist reasoning that there were “implied powers” in addition to those explicitly enumerated in Article II of the Constitution.

The
McCulloch
case was just one of many cases in which rulings of the Marshall court served to promote the nation’s economic development while at the same time fashioning a new conception of federalism by strengthening the power of the federal government at the expense of the state governments. Among the most important of these cases are
Fletcher v. Peck
(1810),
Dartmouth College v. Woodward
(1819), and
Gibbons v. Ogden
(1824).

 

 

DRED SCOTT V. SANDFORD (1857).
THE FRAMERS OF the Constitution in Philadelphia had conspicuously failed to deal with what historian Bernard DeVoto called the “paradox at the nation’s core”: the existence of the institution of chattel slavery in a nation founded on principles of liberty and equality. The consequences of that failure became all the more acute in the aftermath of America’s war with Mexico (1846-48). At the conclusion of that war, the ambitiously expanding nation found itself with vast quantities of new territory acquired from the vanquished Mexican government. The question facing the U.S. government was, what would be the status of slavery in these newly acquired territories? This was an issue that had divided North and South since 1819, when Missouri, a slaveholding territory, had applied for admission to the union. Although the United States Congress had fashioned some temporary compromises between the interests of North and South (the Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854), it was becoming increasingly clear that the issue of the status of slavery in the territories had put the two sections of the country on a collision course.

The Supreme Court’s ruling in the
Dred Scott
case may well be the worst decision in the history of the Court. It was a bad decision not merely because of its dubious constitutional logic (although there was some of that) but, more importantly, because it was rendered on the assumption that nine unelected judges could resolve an issue—that of slavery in the territories—that democratic majorities in the United States Congress had found themselves unable to resolve and that deeply divided the people of the country as a whole. Seven of the nine justices (five southern and two northern) ruled against the petition of Dred Scott, a Missouri slave who had been taken by his owner first into the free state of Illinois and then later into the free territory (under the terms of the Missouri Compromise) of Wisconsin. Scott claimed, therefore, that he should be considered a free man. The justices ruled that because Scott was legally a form of property, he had no right to sue in a federal court and therefore was not entitled to his freedom. That could have been the end of the case, and although it would have denied Scott the freedom he sought, it would not have shaken the very foundations of the American union. But the justices did not stop there. Abandoning long-held traditions of “judicial restraint” (the principle that justices should generally defer to the legislative branch in their rulings and that they should as much as possible base their decisions on existing legal precedents), the justices in the majority in the
Dred Scott
decision went on to rule that the part of the Missouri Compromise prohibiting slavery north of the 36°30’ latitude line violated Fifth Amendment protections of the ownership of property. By its expansive definition of the right to own slave property, the
Dred Scott
decision opened up the possibility that the right to own slaves could not be constitutionally prohibited in any territory of the United States. Any decision by the Supreme Court on an issue as explosive as that involving slavery in the territories would have been a controversial one, but the court, by abandoning principles of judicial restraint, made an already difficult situation even more so. The decision was hailed as a great victory by southern pro-slavery advocates, but it also served to heighten the sectional conflict between North and South and accelerated the course of the nation toward civil war.

 

 

PLESSY V. FERGUSON (1896).
THE AMERICAN CIVIL WAR remains the most traumatic event in the nation’s history. It was the result at least in part of the failure of the Constitution to provide a workable mechanism for resolving the increasingly bitter divisions between North and South over the issue of slavery. But one consequence of that bloody war, in which nearly six hundred thousand Americans lost their lives, was the opportunity to eliminate that paradox at the nation’s core—the opportunity not only to abolish slavery but also to insert into the Constitution fundamental protections for the rights of freed slaves. The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments was an important step in transforming the egalitarian rhetoric of the preamble of the Declaration of Independence into binding constitutional law. The language of the Fourteenth Amendment in particular, with its stipulation that no state can deprive “any person of life, liberty, or property, without due process of law” and its guarantee of “equal protection of the laws” to all citizens, seemed to offer the promise of an America whose Constitution and laws would finally be in harmony with the egalitarian rhetoric that had justified the revolt against British rule.

But those amendments were not in themselves sufficient to protect the rights of freemen, and in the face of continuing intransigence in the South, a northern, Republican-controlled Congress embarked on an attempt to “reconstruct” the states of the former Confederacy and, in the process, to ensure that the civil rights of newly freed slaves were not violated. The so-called era of Reconstruction had run its course by the mid-1870s, and as the commitment of white Americans to equal rights for all waned, many of the post- Civil War statutes aimed at ensuring equal protection under the law came under attack. The ruling in
Plessy v. Ferguson
was the culmination of that unfortunate trend.

During that same period, Congress and the courts were confronted with additional challenges with respect to civil rights. With the readmission of all the states of the former Confederacy, the guarantees of equal rights to freed slaves provided by the Fourteenth and Fifteenth Amendments were gradually weakened. Perhaps reflecting some fatigue from the political and sectional battles of the Reconstruction era, the rulings of the Supreme Court during the last three decades of the nineteenth century tended to weaken America’s commitment to the Fourteenth Amendment’s promise of equal protection under the law.

In the
Slaughter-House Cases
(1873),
United States v. Cruikshank
(1876), the
Civil Rights Cases
(1883), and finally in
Plessy v. Ferguson
(1896), the court steadily narrowed the extent to which the provisions of the Fourteenth Amendment could be used to prevent state governments or private companies and institutions from infringing on the rights of American citizens.

The decision in
Plessy
turned on the constitutionality of an 1890 Louisiana statute requiring separate railway cars for black passengers and white passengers. In 1892 Homer Plessy, a light-skinned African American working in concert with a group of African American professionals in New Orleans who wished to test the constitutionality of the law, boarded a “whites only” car and was promptly arrested. After the case had worked its way through the lower federal courts, which consistently ruled against Plessy, the Supreme Court agreed to hear the case in 1896.

In a seven-to-one decision, with one justice not participating, the Court rejected Plessy’s contention that enforcing separation of the races in the railway cars was a violation of the “equal protection” clause of the Fourteenth Amendment. Justice Henry Billings Brown, who wrote the majority opinion, maintained that the “enforced separation of the two races” did not necessarily “stamp the colored race with a badge of inferiority.” Then, revealing the full extent of the racial assumptions underlying the decision, he wrote:

Justice John Marshall Harlan, the only justice to side with Plessy, wrote an impassioned dissent. He scornfully rejected the argument supporting “separate but equal” facilities for the two races, and then asserted that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Harlan’s powerful dissent notwithstanding, the decision in
Plessy
would put into place the doctrine of “separate but equal,” one that would serve to justify both state-sponsored and privately imposed segregation across a wide range of areas, from restaurants to public accommodations to public schools.

 

 

SCHENCK V. UNITED STATES (1919) AND GITLOW V. NEW YORK (1925).
These two cases each deal with the free speech guarantees of the First Amendment, but the Gitlow case raised an additional question that has had important ramifications for constitutional interpretation up to the present day.

During the presidential administration of Woodrow Wilson, in the aftermath of World War I, the Supreme Court made one of its most important rulings dealing with issues of national security and free speech. In
Schenck v. United States
, the court upheld the Espionage Act of 1917, a congressional statute aimed at punishing anyone engaged in actions that might “be used to the injury” of the United States war effort. In that case, the Court ruled that the actions of Charles Schenck, a member of the Socialist Party who had distributed pamphlets opposing the draft during World War I, had produced such injury and therefore were not protected by the free speech guarantees of the First Amendment. In that decision Justice Oliver Wendell Holmes, Jr., noted that the right of free speech is not an absolute one, using the following example: “Free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic.” Holmes then offered a means of resolving the potential conflict between First Amendment guarantees of free speech and the need for public order: the question to be determined, Holmes reasoned, was whether the actions or words being employed “might create a clear and present danger” to cause “substantive evils.” In general, the courts have tended to interpret the meaning of “clear and present danger” in a way that gives government greater powers to restrict free speech during times of war.