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    Prepared by

    Yvonne Greenwood, Coordinator

    State Bar of TexasLaw-Related Education

    1-800-204-2222 ext. 2120

     All rights reserved. Permission is granted for these materials to be reproduced for classroom use only. No part of these materials may be reproduced in any other form or for any other purpose without the written consent of Law-Related Education, State Bar of Texas. (2008)



     Page # TEKS/TAKS Objectives 3

     Cases & Activities:`

    Barron v. Baltimore (1833) 4 Marbury v. Madison (1803) 6 McCulloch v. Maryland (1819) 10 McCulloch v. Maryland Case Studies 14 Gibbons v. Ogden (1824) 19 Scott v. Sandford (1857) 22 Learning Stations Scott v. Sandford 30 Plessy v. Ferguson (1896) 32 Brown v. Board of Education (1954) 35 Brown v. Board of Education Activity 40 California v. Bakke (1978) 43 Gratz v. Bollinger (2003) 48 Grutter v. Bollinger (2003) 51 Everything Else Being Equal 56 Baker v. Carr (1962) 63 Reynolds v. Sims (1964) 68 Wesberry v. Sanders (1964) 70 Drawing Discriminating Districts 71 Reynolds v. U.S. (1878) 73 Everson v. Ewing. (1947) 76 Engel v. Vitale (1962) 79 Wisconsin v. v. Yoder (1972) 81 Schenck v. U.S. (1919) 86 Why Can‘t You Say That? 88 Abrams v. U.S. (1919) 109 Gitlow v. New York (1925) 112 Tinker v. Des Moines (1969) 114 Korematsu v. U.S. (1944) 119 Miranda v. Arizona (1966) 131




    TAKS Objective 8.19: Government. The student understands the impact of landmark Supreme Court cases. The student is expected to

    (A) summarize the issues, decisions, and significance of landmark Supreme Court

    cases including Marbury v. Madison, [McCulloch v. Maryland, and Gibbons v.

    Ogden]; and

    (B) evaluate the impact of selected landmark Supreme Court decisions including Dred

    Scott v. Sandford on life in the United States.

TAKS Objective US17: Government. The student understands the impact of constitutional thissues on American society in the 20 century. The student is expected to th(A) analyze the effects of 20-century landmark U.S. Supreme Court decisions such

    as Brown v. Board of Education, [Regents of the University of California v. Bakke,

    and Reynolds v. Sims].

    TEKS Objective Govt. 14: Citizenship. The student understands rights guaranteed by the U. S. Constitution. The student is expected to

    (B) analyze issues addressed in selected cases such as Engel v. Vitale, Miranda v.

    Arizona, and Schenck v. U.S. that involve Supreme Court interpretations of rights

    guaranteed by the U. S. Constitution.

*[ ]Denotes cases that will not be tested on TAKS.

    Additional applicable TEKS objectives in studying U. S. Supreme Court cases:

    5.17 A & B, 5.19 A, 5.21 B & C, 5.25 D & E, 5.27 B; 6.2 A & B, 6.11 C, 6.21 B, D & E, 6.23 A & B; 7.14 A & B, 7.16 A & B, 7.17 B & C, 7.21 B, D & E, 7.12 A & B; 8.7 B, 8.16 D, 8.17 B & C, 8.19 A & B, 8.20 D, 8.22 A & B, 8.24 C, 8.30 D & E, 8.32 A & B; U.S. Hist. 7 A, C & D, 16 B, 17 A, 18 A & B, 24 G, 26 A & B; Whist. 17 A & B, 25 D, G & H, 27 A & B; Govt. 2 C & D, 3 A & B, 8 D & F, 9 C, E & F, 10 C & D, 14 A, B, C, D. E & F, 17 A & B, 18 C, 21 C, 23 A & B



    32 U.S. (7 Pet.) 243, 8 L.Ed. 672

     Supreme Court of the United States 1833

    John Barron was the surviving co-owner of a wharf located in Baltimore on the Patapsco River. The wharf was a highly productive one in the eastern section of Baltimore. At the time of its construction by Craig & Barron, the wharf had the deepest water in the harbor.

     The City of Baltimore, while paving streets and regulating grades for paving, redirected the course of several streams which fed water into that part of the harbor where the wharf was situated. The water in front of the wharf became so shallow that it ceased to be useful for large vessels. As a result, the wharf lost income and became of little or no value.

    Barron brought suit against city officials seeking compensation for the loss of value to his property. He presented evidence to prove the original and natural course of the streams and the actions of the city that caused his financial loss. The city denied that the plaintiff had shown any cause of action, asserting that any injury Barron had suffered was the accidental result of necessary governmental action in the public interest. A county court awarded Barron $4,500 in damages, but an appellate court reversed this decision. Barron appealed to the Supreme Court on a writ of error.

    ; ISSUE: Does the Fifth Amendment‘s Takings Clause prohibit the states as well as

    the national government from taking private property, including interference with

    the property, without just compensation?


     BARRON v. BALTIMORE (1833)


    Speaking for all his colleagues, Chief Justice John Marshall delivered the opinion of the Court. The Court held that the guarantees of the Bill of Rights applied only to the national government, not to the states. Consequently, the Court dismissed the case without any decision on the merits since the Supreme Court lacked jurisdiction. (In other words, since the case did not involve any question of federal law and the Bill of Rights applied only to the national government and not the states, the United States did not have jurisdiction.) He began his opinion by suggesting that the answer to this case was inherent in the very nature of the Constitution:

    The Constitution was ordained and established by the people of the United

    States for themselves, for their own government, and not for the government

    of the individual States.... The people of the United States framed ... a

    government for the United States as they supposed best adapted to their

    situation, and best calculated to promote their interests. The powers they

    conferred on this government were to be exercised by itself; and the limitations

    on power, if expressed in general terms, are naturally, and, we think,

    necessarily applicable to the government created by the instrument. They are

    limitations of power granted in the instrument itself; not of distinct governments,

    framed by different persons and for different purposes.

    If these propositions be correct, the fifth amendment must be understood as

    restraining the power of the general government, not as applicable to the



    ... [I]t is universally understood, it is a part of the history of the day, that the

    great revolution which established the Constitution of the United States was

    not effected without immense opposition. Serious fears were extensively

    entertained that those powers which the patriot statesmen who then watched

    over the interests of our country, deemed essential to union, and to the

    attainment of those invaluable objects for which union was sought, might be

    exercised in a manner dangerous to liberty. In almost every convention by

    which the Constitution was adopted, amendments to guard against the abuse

    of power were recommended. These amendments demanded security

    against the apprehended encroachments of the general governmentnot

    against those of the local governments.

    In compliance with the sentiment thus generally expressed, to quiet fears thus

    extensively entertained, amendments were proposed by the required majority

    in Congress, and adopted by the States. These amendments contain no

    expression indicating an intention to apply them to the State governments.

    This court cannot so apply them.



    5 U.S. (1 Cranch) 137, 2 L.Ed. 60


    The election of 1800 proved to be a disaster for the Federalist Party. Federalist John Adams was not reelected to the office of President (he lost to Thomas Jefferson, a member of the ―Jeffersonian,‖ or Republican, Party). More Republicans were elected to both the

    House of Representatives and the Senate than Federalists. To keep as much political power as possible, the Federalists then tried to take over the federal court system through the appointment of federal judges. To become a federal judge, one must be appointed by the President and approved by the Senate, according to Article III of the Constitution.

    In the Federalist effort to control federal courts, Oliver Ellsworth, then Chief Justice of the Supreme Court, resigned. This allowed President Adams to name a new chief justice before leaving office. Adams appointed his Secretary of State, John Marshall, an arch political enemy (and a cousin!) of President-Elect, Thomas Jefferson. Marshall also retained his post in the Adams administration until it went out of office in March 1801. So at the same time, John Marshall was Secretary of State and Chief Justice of the Supreme Court.

    After the elections of 1800 but before going out of office in March 1801, the Federalist-controlled Congress passed a law that created a new intermediate level for federal courts, called ―circuit courts.‖ These new courts were designed to relieve Supreme Court justices from the ordeal of ―riding circuit‖ (the justices actually rode horseback into the

    area to which each justice was assigned and heard cases in the circuit). This act doubled the number of federal judges, and Federalists were appointed judges in these new courts.

    During that same period, Congress passed another act, which provided forty-two justices of the peace for the District of Columbia. President Adams sent his nominations for these judgeships to the Senate, and they were approved on March 3. Republicans called many of the new appointees ―midnight judges,‖ claiming that Adams had stayed up until midnight

    of his last day in office making these appointments. Although the appointments were made by the President and approved by the Senate, four of the certificates of appointment were undelivered and returned to the Secretary of State‘s office.

    With President Jefferson now in office, he ordered his new Secretary of State, James Madison, not to deliver the remaining four certificates. One of the undelivered certificates would have appointed William Marbury a justice of the peace in the District of Columbia. Marbury filed a lawsuit directly with the Supreme Court to force Madison to deliver his commission and make him a justice of the peace. He based his lawsuit on the Judiciary Act of 1789, which originally set up the federal judiciary. Section 13 of that statute gave the Supreme Court power to issue writs of mandamus (judicial orders that direct government

    officers to perform acts that are duties of their offices).

    The political controversy grew over the case, and Supreme Court Chief Justice Marshall knew that there would be problems no matter how the Court decided. To refuse to grant


    Marbury‘s request might show the powerlessness of the Supreme Court and indicate that high executive officials were above the law. Congress had even passed a law canceling the 1802 Term of the Supreme Court, and therefore the Court did not hear this case until 1803.

     By then it was clear that potentially serious problems had developed between the President and the courts.

     ISSUE: Does Marbury have the right to become a justice of peace? If he has that ;

    right, do the laws provide a way for him to get the appointment? If so, is that method

    a writ of mandamus? Is Section 13 of the Judiciary Act of 1789, which gives the

    Supreme Court power to issue writs of mandamus, unconstitutional under Article III

    of the Constitution?


     MARBURY v. MADISON (1803)


    Only four of the six Justices on the Supreme Court participated in this decision. Chief Justice John Marshall wrote the opinion, first answering whether Marbury had the right to his judicial commission. The Court concluded that he did have this right. Marshall wrote:

    Some point of time must be taken when the power of the executive over an

    officer, not removable at his will, must cease. That point of time must be when

    the constitutional power of appointment has been exercised. And this power

    has been exercised when the last act, required from the person possessing

    the power has been performed. This last act is the signature of the



    Mr. Marbury, then, since his commission was signed by the president, and

    sealed by the secretary of state, was appointed ....

    The next question brought up by the Chief Justice was, ―If [Mr. Marbury] has a right, and that right has been violated, do the laws of his country afford him a remedy?‖ To this, the Chief Justice wrote:

    The government of the United States has been emphatically termed a

    government of laws, and not of men. It will certainly cease to deserve this high

    appellation, if the laws furnish no remedy for the violation of a vested legal


Next, the Court considered the constitutionality of Section 13 of the Judicial Act of 1789.

    Chief Justice Marshall wrote that Section 13 of the Judiciary Act of 1789, which gave the

    Supreme Court the power to issue writs of mandamus, was an unconstitutional extension of

    the Court‘s original jurisdiction under Article III of the Constitution. The Chief Justice refused to accept a power that had been given to the Court by the legislature. In so doing, he announced that the Court would exercise a much greater power, that of judicial review. The Chief Justice wrote:

    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.

    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 the very essence of judicial duty.


    If, then, the courts are to regard the constitution, and the 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.

    ... The judicial power of the United States is extended to all cases arising under

    the constitution. 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?


    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.

    Thus, Marshall declared the Supreme Court as the final judge of constitutionality, giving it the right of judicial review.

The importance of the case, Marbury v. Madison, is not whether William Marbury became

    a justice of the peace (he did not) but rather that the United States Supreme Court has the final say in whether or not a law violates the United States Constitution.



    17 U.S. 316, 4 L.Ed. 579

    February Term 1819

    In 1790, Alexander Hamilton, the first Secretary of the Treasury, recommended to Congress that the federal government establish a national bank. Congress passed the bill in 1791. After passage, the bill was sent to President George Washington for his approval and signature.

    Before signing the bill, Washington consulted his Secretary of State, Thomas Jefferson. Jefferson was opposed to the creation of such a bank, arguing that the federal government had not been given the authority under the Constitution to charter a bank. This power, he thought, belonged to the states under the Tenth Amendment. Hamilton, however, encouraged Washington to sign the bill, arguing that the federal government had broad powers. Washington evidently listened to Hamilton because he signed the bill and approved the bank charter on February 25, 1791.

    By 1819 the Bank of the United States had capital of approximately $35 million. It was by far the largest corporation in the United States with eighteen branches in various cities around the country.

     The role of the bank was to be an agent of the federal government, regulate the currency, and act in many ways as any private bank.

    For a variety of reasons, the bank did not enjoy popularity with the people. First, people generally did not like banks, especially large banks. Second, many people argued that the role of the federal government should be small and limited. In most areas, they thought that the state government should remain sovereign and the federal government only act in those areas where the Constitution had granted specific authority. The final reason was that the Bank of the United States was in competition with local banks. Because of its size, the Bank of the United States took business away from those local banks.

    The tight credit policies of the bank contributed to a depression and caused many states to react against what they saw as ―the monster monopoly.‖ Two states prohibited the bank from operating within their jurisdiction, and six other states taxed the bank operations within their jurisdiction.

    In 1818 the Maryland Assembly passed a statute taxing all banks operating in Maryland that were not chartered by the state. The statute levied approximately a 2 percent tax on the value of all notes issued by the bank, or a flat annual fee of $15,000, payable in advance. James W. McCulloch was the cashier of the Baltimore branch of the Bank of the United States and refused to pay the tax. Since the bank failed to pay the tax, the state of Maryland brought suit against McCulloch (on behalf of the bank) to collect the money. When the highest court in Maryland ruled that McCulloch had to pay the tax, McCulloch and the bank appealed to the United States Supreme Court.

    ; ISSUE: Does the United States Congress, under the Necessary and Proper Clause of Article

    I, have the power to act outside specific congressional authority set forth in the Constitution?


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