US Constitution 101, page 5
Marbury v. Madison
In 1800, Thomas Jefferson was elected president in an election that he and his supporters called the “Revolution of 1800.” When Jefferson took office, he and his right-hand man, Secretary of State James Madison, had to decide what to do with undelivered judicial commissions left by John Adams’s administration. Having defeated Adams in a hotly contested election, Jefferson instructed Madison not to deliver the commissions, which would have given federal judgeships to their political opponents. One of these judges was William Marbury, who was unhappy to learn that he would not be receiving the commission that President Adams had promised.
Marbury took his complaint directly to the Supreme Court on the basis of Section 13 of the Judiciary Act of 1789. This act gave the Court original jurisdiction (the authority to be the first court to hear a case) in cases involving writs of mandamus. A writ of mandamus is a court order to a government official requiring the official to take a specific action. Chief Justice John Marshall, who had been John Adams’s secretary of state, was placed in a difficult position because Madison, as a member of the executive branch, might have been inclined to ignore a writ of mandamus from the Court, which had no power to enforce it.
Chief Justice Marshall, always the clever legal thinker, decided to sidestep the issue between Marbury and Madison, choosing instead to rule on the constitutionality of the Judiciary Act of 1789, which gave the Supreme Court a very limited sphere of original jurisdiction over cases in which a state or foreign ambassador was a party. In Marbury v. Madison (1803), the Court ruled Section 13 of the Judiciary Act of 1789 to be unconstitutional and therefore void. In the opinion of the Court, Marshall asserted the Supreme Court’s right to have the final word in disputes concerning the Constitution.
It is emphatically the province and duty of the judicial department to say what the law is…. If two laws conflict with each other, the courts must decide on the operation of each.
—John Marshall, Marbury v. Madison (1803)
The Marbury v. Madison ruling is often considered to be the most significant Supreme Court decision ever made, as the Court now claimed the power to strike down laws (or portions of laws) that conflicted with the Constitution.
Interchangeable Terms
When reading about the Supreme Court, the words decision, ruling, and holding come up often. These terms all describe the same thing: the judgment of the Court in favor of one party or the other in a legal case.
JUDICIAL OPINIONS
The Supreme Court’s decisions are not handed down without explanation. These decisions are accompanied by judicial opinions, in which the justices explain their reasoning. Some justices disagree with the Court’s decision; others may agree with the decision but have a different rationale for reaching the same conclusion. Each justice may present their opinion on any decision in a number of ways.
Majority Opinion
The majority opinion serves as the official opinion of the Court and is written by one justice who is joined by the majority. Since the Supreme Court has nine justices, it takes at least five justices’ signatures to make it the majority opinion.
Concurring Opinion
A justice writes a concurring opinion to express agreement with the opinion of the Court but also to explain their own separate reasoning process in arriving at the same decision. It is permissible for a justice to sign the majority opinion and contribute a concurring opinion. In complex court rulings, a concurring opinion may only agree with a portion of the ruling and disagrees with (or dissents from) most aspects of the majority opinion.
Dissenting Opinion
A dissenting opinion expresses the disagreement of one or more justices with the Court’s decision. Although dissenting opinions have no official legal weight, they can be extremely useful when the Court is considering overturning a decision, as it did when Brown v. Board of Education (1954) overturned the Plessy v. Ferguson (1896) decision.
EQUAL PROTECTION OF THE LAWS The Game-Changing Fourteenth Amendment
When the Constitution was ratified, Americans were concerned that the new federal government established by the Constitution would become a threat to the rights of the people and the states. However, the American Civil War (1861–1865) prompted Americans to reevaluate the relationship between the states and the federal government. Congressional Republicans (with a large majority in both houses) wanted the federal government to protect the rights of Americans from state governments that would deny citizenship and basic rights to entire classes of citizens (in this case, Black people in the South). The desire for the federal government’s involvement in guaranteeing civil rights culminated in the ratification of the Fourteenth Amendment, which guarantees the rights of citizenship, due process, and equal protection of the laws to all native-born and naturalized Americans.
UNDERSTANDING THE FOURTEENTH AMENDMENT
After the ratification of the Thirteenth Amendment, which abolished slavery in the United States, the legal status of recently freed men and women in the South was uncertain. The Supreme Court’s Dred Scott decision had ruled out granting citizenship to African Americans, and no rule in the Constitution expressly prohibited states from treating formerly enslaved people as something less than citizens. Several Southern states passed “Black Codes,” which restricted the civil liberties of African Americans, denying them basic rights, such as bearing arms and forming religious associations without a permit from the state. The Fourteenth Amendment was drafted in response, granting them the benefits of full citizenship.
The Fourteenth Amendment is the longest and most complex of all of the constitutional amendments. While most amendments were drafted with a single objective in mind, the Fourteenth Amendment sought to fundamentally redefine citizenship, expand civil rights protections, and alter the relationship between the federal and state governments. Its most significant clauses, which have been the subject of landmark Supreme Court cases, are in Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
—Section 1, Fourteenth Amendment of the Constitution
SIGNIFICANT CLAUSES
The most significant clauses of the Fourteenth Amendment are the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.
Citizenship Clause
The Fourteenth Amendment’s Citizenship Clause confers citizenship upon everyone born in the United States. When the Fourteenth Amendment was ratified, granting birthright citizenship regardless of the citizenship status of the parents was rare, but it guaranteed that African Americans in the South would have equal rights. Although birthright citizenship is normal in the Americas today, few other nations grant this citizenship when neither parent is a citizen of the country.
Privileges or Immunities Clause
Article IV of the original Constitution contains a Privileges and Immunities Clause which reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” but there was no language to enforce this. Citizenship is understood to come with privileges, like voting rights and the right to free speech, and immunities, like protections from cruel and unusual punishments. The framers of the Fourteenth Amendment wanted to clarify that all Americans are entitled to these rights and that Congress (according to Section 5 of the Fourteenth Amendment) may pass laws to protect the privileges and immunities of American citizens.
The Fourteenth Amendment’s Privileges or Immunities Clause (not to be confused with the Privileges and Immunities Clause in the original Constitution) reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The inclusion of the phrase “No State shall” represents a remarkable turning point in the Constitution when compared to the Bill of Rights, which sought to limit the ability of the federal government to infringe upon the rights of Americans. The Fourteenth Amendment places the same limitation on state governments.
Due Process Clause
The Fourteenth Amendment’s Due Process Clause reads: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Fifth Amendment specifically prevents the federal government from taking a person’s life, liberty, or property without due process of law. The Fourteenth Amendment applies the restrictions at the state level.
Equal Protection Clause
The Fourteenth Amendment’s Equal Protection Clause prohibits states from denying anyone “the equal protection of the laws.” The Equal Protection Clause represents the first time that the Constitution required state governments to treat everyone equally under the law. The original Constitution, ratified when many states sanctioned slavery and required property ownership to vote, did not require state governments to treat all citizens equally. Famous court cases like Brown v. Board of Education (1954) were decided based on the Equal Protection Clause.
Subsequent Sections
While Section 1 of the Fourteenth Amendment is the most relevant to guaranteeing civil rights and due process to Americans, Sections 2, 3, and 4 of the Fourteenth Amendment address important matters of constitutional law, including discrimination in voting, disqualification for office holding, and the payment of the national debt.
THE INCORPORATION DOCTRINE Applying the Bill of Rights to the States
Although the Fourteenth Amendment states that all Americans have a constitutional right to “equal protection of the laws,” it does not clearly define which rights are included under the umbrella of equal protection. Similarly, the Fourteenth Amendment’s prohibition on state seizures of life, liberty, or property without due process of law is ambiguous about the extent to which the process can differ from state to state. Requiring every state’s justice system to be the same destroys the idea of federalism. However, equal protection and due process require some degree of standardization. Over the years, the Supreme Court has applied the incorporation doctrine to decide which of the provisions of the Bill of Rights are applicable to state governments.
WHAT IS THE INCORPORATION DOCTRINE?
The incorporation doctrine is the idea that the Fourteenth Amendment makes many of the provisions of the Bill of Rights binding on the states. The Supreme Court has chosen to incorporate specific provisions of the Bill of Rights selectively through decisions about individual cases. When using selective incorporation, the Court considers whether incorporation of a right is necessary for Americans to enjoy the Fourteenth Amendment’s guarantee of due process rights and the equal protection of the laws.
Barron v. Baltimore (1833)
In an 1833 case, the Supreme Court rejected John Barron’s claim that the city of Baltimore’s construction projects had negatively impacted his business, depriving him of property without due process of law. In its unanimous ruling, the Court rejected Barron’s claim that the Fifth Amendment’s Due Process Clause applied to the states. Before the Fourteenth Amendment, the Barron case exempted the states from the Bill of Rights.
Incorporated Amendments
The Supreme Court has incorporated every clause of the First, Second, Fourth, and Eighth Amendments, and most of the Fifth and Sixth Amendments, as being binding on the states through the Fourteenth Amendment. The incorporation of the First Amendment began with Gitlow v. New York (1925), in which the Supreme Court provided guidelines by which the states could (and could not) regulate free speech. The Gitlow decision was the first time the Supreme Court incorporated freedom of speech and the press onto the states.
Over the years, the Supreme Court has incorporated most of the Bill of Rights’ protections for criminal defendants as binding on the states. For example, Gideon v. Wainwright (1963) incorporated the right to an attorney for state criminal defendants, and in the controversial Miranda v. Arizona (1966) case, the Supreme Court ordered a retrial for Ernesto Miranda, who had confessed to rape before being informed of his right to remain silent.
The process of selective incorporation, which requires a case to be brought before the Supreme Court for a right to be incorporated, can sometimes create confusion. Before the landmark District of Columbia v. Heller (2008) decision, the Supreme Court had never ruled definitively on whether the Second Amendment protects an individual’s right to bear arms or whether it only applied to individuals serving in a state militia. After the Heller decision, the Supreme Court took two more years to incorporate the Second Amendment into the states in McDonald v. Chicago (2010). Provisions of the Bill of Rights that have not yet been incorporated may be incorporated by a future Supreme Court ruling.
Total Incorporation
Some legal scholars have argued for the doctrine of total incorporation, which would incorporate every provision of the Bill of Rights as applicable to both federal and state governments. Although the Supreme Court rejected the doctrine of total incorporation, most of the provisions of the Bill of Rights have been incorporated as binding upon the states.
Unincorporated Amendments
The Supreme Court has never incorporated the Third, Seventh, Ninth, and Tenth Amendments to apply to the states. The Third Amendment has never been the subject of a case before the Supreme Court, and this is not likely to change. The Seventh Amendment’s guarantee of a jury trial in federal civil cases has also not been incorporated, allowing states to determine when jury trials are legally necessary in civil cases.
Additionally, the Fifth Amendment has been partially incorporated, but states can decide whether or not to require that grand juries be convened to examine evidence prior to indicting someone with a crime. Similarly, states are not bound by the Sixth Amendment’s requirement that juries be composed of people who reside in the locality where the alleged crime was committed. This enables state authorities to move a trial when there is doubt as to whether a local jury will administer impartial justice.
Although some efforts have been made to incorporate the Ninth Amendment (namely in cases involving a right to privacy), the Supreme Court has never done so, choosing instead to stick to incorporating rights that are specifically enumerated in the Bill of Rights. And, finally, because of the Tenth Amendment’s purpose in protecting the rights of the states against federal overreach, it is difficult to imagine a scenario in which it would be incorporated.
FREEDOM OF RELIGION The Establishment and Free Exercise Clauses
The first right protected in the Bill of Rights is freedom of religion. Although Article VI of the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” there is no language in the original Constitution that expressly prohibits the federal government from mandating religious expression, favoring one religion over another, or prohibiting the activities of a religious minority. The First Amendment solves this problem with two religion clauses that prevent the federal government from establishing a religion and preventing interference with the free exercise of religion.
THE DEVELOPMENT OF RELIGIOUS FREEDOM
The First Amendment’s religion clauses are the result of a long history that began with religious persecution in England, continued with the expansion of religious toleration in the thirteen colonies, and ended with complete religious freedom after the American Revolution.
Religious Persecution in England
Religious freedom in America is rooted in England’s storied history of religious disputes. In 1534, King Henry VIII renounced Catholicism and created the Anglican Church, a faith he forced on all of his subjects. Over the next century, English monarchs persecuted Catholics and other religious dissenters, including Puritans and Quakers. Many journeyed to the colonies to escape religious persecution.
Toleration in the Colonies
Each of the thirteen colonies developed their own distinct ideas of religious toleration over time. Colonies in New England, such as Massachusetts, established churches and punished religious dissenters. Roger Williams, for example, was exiled for preaching against any kind of religious coercion by government authorities. Maryland, founded as a haven for Catholics, allowed all Christians to settle there as long as they believed Jesus to be the Son of God by the standard Trinitarian definition. However, it was a capital offense in the Maryland Colony to deny the divinity of Jesus. William Penn, who established the Pennsylvania Colony, established a policy of full religious toleration in accordance with his Quaker beliefs. In Georgia, only Catholicism was prohibited as a religion (the English feared that Catholic colonists might join the Spanish if the colony were invaded from neighboring Spanish Florida). By the time of the American Revolution, most of the colonies practiced religious toleration while requiring colonists to support an established church through taxes.
