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The Marshall & Taney Courts 1801-1863

The Marshall & Taney Courts 1801-1863. Contrasting Approaches to Constitutional Interpretation. Comparing the Court’s First Two Important Eras. The Civil War Amendments 1865-1870. Constitutional Watershed in American Federalism § Dred Scott Overtuned. 13th Amendment [1865].

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The Marshall & Taney Courts 1801-1863

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  1. The Marshall & Taney Courts1801-1863 Contrasting Approaches to Constitutional Interpretation

  2. Comparing the Court’s First Two Important Eras

  3. The Civil War Amendments 1865-1870 Constitutional Watershed in American Federalism§ Dred Scott Overtuned

  4. 13th Amendment [1865] • Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. • Section 2. Congress shall have power to enforce this article by appropriate legislation.

  5. 14th Amendment, ¶§ 1 [1868] • 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.

  6. 15th Amendment [1870] • Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. • Section 2. The Congress shall have power to enforce this article by appropriate legislation.

  7. The Judiciary & the Welfare State 1900-1942 Economic Regulation

  8. Dual Federalism • The Constitution is a compact among sovereign states, which having ceded a portion of their sovereignty to the national government, have retained the rest. • To the powers of the national government and of the states are mutually exclusive, conflicting, and antagonistic. What belongs to the nation is forbidden to the states and vice versa. • The layer cake metaphor for federalism. • Narrow interpretation enumerated powers including Necessary and Proper. • Broad interpretation of the Tenth Amendment. • 1835-1864 (Taney Court), 1895-1937. • Modest revival in 1970s and 1990s.

  9. MEMBERSHIP OF THE U.S. SUPREME COURT1932-1937 *The fearsome foursome of substantive due process–a remarkably consistent voting bloc: Willis Van DeVanter (Republican, Wyoming, Chair of Republican National Committee, Taft) James C. McReynolds (Democrat, Tennessee, U.S. Attorney General, Wilson) George Sutherland (Republican, Utah, state senator, Harding) Pierce Butler (Democrat, Minnesota, railroad attorney, Harding)

  10. THE SUPREME COURT'S RESPONSE TO ECONOMIC REGULATIONBEFORE AND AFTER THE SWITCH IN TIME THAT SAVED NINE[Cases won by the government, i.e., where regulation was sustained, are printed in bold blue type.]

  11. The Judiciary & the Welfare State 1900-1937 The Foreign Policy Exception

  12. Key Cases • MISSOURI V. HOLLAND (1920): Article VI establishes the supremacy of treaties over state law, even when those treaties require exercise powers not expressly granted to the federal government. If the treaty is valid, the implementing statute is valid as necessary and proper. • U.S. V. CURTISS-WRIGHT EXPORT CORP. (1936): the view that the federal government has only enumerated powers “is categorically true only in respect of our internal affairs.” Courts describes the “plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.” • U.S. V. BELMONT (1937) : executive agreements are not treaties requiring Senate approval, but they have the force of treaties domestically.

  13. Rise & Fall of the Warren Court 1953 - 1969

  14. Preferred Freedoms • All constitutional rights are not equal. • Rights of speech, press, association, and assembly are so fundamental to democratic processes that any legislation infringing them must be accorded strict scrutiny [judicial activism]. • Preference for the individual over the government when government action intrudes on fundamental rights. • Particular solicitude toward (a) individual political rights, (b) the processes of democratic government, or (c) the well-being of persistent minorities. • Fundamental rights don't include the economic rights, which were the darlings of the Lochner Court.

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