Hatton W. Sumners
Supreme Court Case Book
First Amendment
Resources
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Special appreciation is extended to the following people and organizations:
The inspiration of all Law-Related Education projects: Dr. Isidore Starr.
Special thanks to the Scholar Staff:
Yvonne Greenwood
Professor Jerry Perry
Dr. Mel Hailey
Dr. Jerry Polinard
Special thanks to the State Bar of Texas Law-Related Education Department for their
support and skills in making this activity guide come to life. The staff includes:
Jan L. Miller, Director
Linda DeLeon, Office Manager
Developed in 1995 and revised in 2013 by the Law-Related Education Department,
State Bar of Texas. All rights reserved. Permission is granted for these materials to be
reproduced for classroom use. No part of these materials may be reproduced in any
other form or for any other purpose without the written consent of the Department of
Public Service / Law-Related Education, State Bar of Texas.
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Hatton W. Sumners
Supreme Court Case Book
First Amendment
Resources
Scale of Justice ............................................................................................................. 5
Supreme Court Graphic ................................................................................................ 6
Case Study Method: Five Easy Steps ........................................................................... 7
Constitutional Interpretation Cases
Marbury v. Madison (1803) ........................................................................................... 9
McCulloch v. Maryland (1819)....................................................................................... 15
Barron v. Baltimore (1833) ............................................................................................ 20
Sources
Sources: Freedom of Speech Cases............................................................................. 23
Sources: Freedom of Press........................................................................................... 29
Sources: Establishment of Religion Cases.................................................................... 30
Sources: Free Exercise of Religion Cases .................................................................... 34
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THE CASE STUDY METHOD: FIVE EASY STEPS
The case study method is a Law-Related Education teaching strategy, which uses real court
cases. It includes the following elements:
(1)
(2)
(3)
(4)
(5)
Identifying the facts of the case;
Developing the constitutional or legal question involved in the case;
Formulating arguments for both sides of the question;
Summarizing the court decision and the reason for the decision, as well as
the reasoning of any dissenting justices;
Evaluating the court’s decision.
1.
Facts of the Case
Students should read, listen to, or view the facts of the case. One method for ensuring that
students understand the facts is to put them in pairs and have one student summarize the
facts, while the other student listens carefully and periodically interjects with questions
designed to assist the summarizer in completely recounting the important facts. The
question, “What happened in this case?” is a good prompt for the summarizer.
Another technique involves having students work on the following series of questions:
•
•
•
What happened in this case? Where? When?
Who are the parties involved?
How did the lower courts rule in this case?
As a general rule, it is important to check for students’ understanding of the facts before
they work on the other elements. A quick whole-class discussion of the facts can clear up
misunderstandings and reinforce the work the students did in pairs/groups.
2.
Constitutional or Legal Question
It is important for students to understand the constitutional or legal question the court had to
answer in the case or it will be difficult for them to understand the implications of the court’s
decision. Developing the constitutional or legal question involved in the case is often
difficult. In many instances, you may simply decide to tell your students the question (or
issue). However, if you want your students to develop the question themselves, the
following can be a useful guide:
•
•
•
•
Who was the actor?
Who was the recipient of the action?
What is the action that caused the controversy?
What is the specific part of the Constitution/statute involved?
For example, in the famous case of Tinker v. Des Moines School District (1969) involving
students who wore black armbands to school to protest U.S. involvement in Vietnam, the
answers to the above questions would be:
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Actor = Board of Education
Recipients = students
Action = suspended from school for wearing armbands
Part of Constitution = freedom of speech of the First Amendment
Once the students have answered these questions, they should then develop the question
(or issue) the court had to address in the case. The question should include all of the
components. For example, in Tinker, the question before the Supreme Court was:
“Does a Board of Education [actor] violate the First Amendment freedom of
speech [part of Constitution] of students [recipients of action] when it
suspends the students from school for wearing black armbands [action]?”
The question should be phrased in such a way as to elicit a “yes” or “no” response. Using
the example above, a “yes” response would be a ruling for the students, and a “no”
response would be a ruling for the Board of Education.
3.
Formulating Arguments for Both Sides of the Issue
One way to begin this step is to have the students identify the values/goals of each side.
Rarely is a case strictly between good versus evil. More often, cases involve significant
conflicts between competing, equally important values (for example, freedom of speech
versus the right of privacy or order).
The constitutional or legal question that the students develop provides a good starting point
for the process of developing arguments. Students can be asked to formulate arguments in
support of both a “yes” and a “no” answer to the question. Several Law-Related Education
strategies (moot court simulations, for example) are useful to accomplish this.
Note: Before turning to the next part of the case study method—the actual court’s decision
and reasoning—a useful and fun activity is to ask the students how they would decide the
case if they were members of the court hearing it, and why.
4.
Court’s Decision and Reasons
The Court’s answer to the constitutional/legal issue stated in part two above is the focus
here. For example, in Tinker, the Supreme Court ruled that students’ constitutional rights
had been violated by the Board of Education.
By identifying the court’s reasons for its decision, as well as the reasoning of any dissenting
justices, students will be able to compare and contrast those reasons with their own.
5.
Evaluating a Decision
The final step involves reacting personally to the decision of the court. Especially in cases
that are significant and controversial, students both want and need the opportunity to
discuss what they think about the decision of the court.
Adapted from Constitutional Rights Foundation, Chicago, by Professor Jerry Perry.
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Constitutional
Interpretation Cases
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WILLIAM MARBURY v. JAMES MADISON,
SECRETARY OF STATE
5 U.S. (1 Cranch) 137, 2 L.Ed. 60
1803
The election of 1800 proved to be a disaster for the Federalist Party. Their candidate
for the Presidency, John Adams, was defeated by Thomas Jefferson (a member of the
anti-Federalist Republican Party), and control of both houses of Congress fell to the
Jeffersonians (Republicans). In an effort to retain what political advantage they could,
the Federalists sought to entrench themselves in the federal judiciary.
On February 3, 1801, the Federalist-controlled “lame duck” Congress passed the Circuit
Court Act of 1801, creating federal circuit courts designed to relieve Supreme Court
Justices from the burdensome task of “riding circuit” in their dual capacity as appellate
judges. This act doubled the number of federal judges, and they filled the new judicial
offices with Federalists. Oliver Ellsworth, then Chief Justice of the Supreme Court,
conveniently resigned, which allowed President Adams to name a new Chief Justice.
He appointed his Secretary of State, John Marshall, an arch political enemy though a
cousin of the President-elect.
Marshall also retained his post in the Adams
administration until it went out of office in March 1801.
Two weeks after it had passed the circuit court legislation, Congress passed another
act, which provided 42 justices of the peace for the District of Columbia. President
Adams sent his nominations for these judgeships to the Senate, and they were
confirmed on March 3. Republicans branded many of the new appointees “midnight
judges,” claiming that Adams had stayed up until midnight of his last day in office
signing the commissions for the prospective judges. The commissions were signed by
the President, and the Seal of the United States was affixed by Marshall as Secretary of
State late the same day. However, Adams’ term expired before all the commissions
could be delivered, and four undelivered certificates were returned to the Secretary of
State’s office.
When President Jefferson discovered that the four commissions had not been
delivered, he ordered his new Secretary of State, James Madison, not to deliver them.
One of the undelivered commissions would have made William Marbury a justice of the
peace in the District of Columbia. Marbury filed his suit directly with the Supreme Court
to force Madison to deliver his commission, basing his petition on Section 13 of the
Judiciary Act of 1789. This statute set up the federal judiciary, and Section 13 had
given the Supreme Court power to issue writs of mandamus (judicial orders that direct
government officers to perform specific acts that are ordinary duties of their offices).
As the political controversy grew over the case, Chief Justice Marshall knew that if he
ordered Madison to deliver the commissions there would be problems. The decision
would be unpopular, and there was a possibility that the executive branch would simply
ignore the order. Even so, to refuse to grant Marbury’s request might show the
powerlessness of the Supreme Court and indicate that the high executive officials were
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above the law. Marshall, the former Secretary of State under Adams, knew that he
must proceed carefully. President Jefferson and Congress had indicated a willingness
to impeach Federalist judges, and the Congress had even passed a law canceling the
1802 Term of the Supreme Court. Consequently, the Court did not hear this case until
1803, when it was clear that potentially serious confrontation had developed between
the executive and judicial branches.
•
ISSUE: Does Marbury have the right to the commission as justice of peace? If
he has that right, do the laws afford him a remedy? If so, is that remedy 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?
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MARBURY v. MADISON (1803)
Decision
With a bare quorum of four of the six justices participating, Chief Justice John Marshall
wrote for the Court. The first question answered was 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 commission.
...
Mr. Marbury, then, since his commission was signed by the president, and
sealed by the secretary of state, was appointed; and as the law creating
the office, gave the officer a right to hold for five years, independent of the
executive, the appointment was not revocable, but vested in the officer
legal rights, which are protected by the laws of his country. To withhold
his commission, therefore, is an act deemed by the court not warranted by
law, but violative of a vested legal right.
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 right....
If Marbury was entitled to his office under the law, and if the United States government
was bound to protect Marbury’s legal rights, then did the Supreme Court have the
authority to deal with Marbury’s request? Marshall wrote:
This, then, is a plain case for a mandamus, either to deliver the
commission, or a copy of it from the record; and it only remains to be
inquired, whether it can issue from this court?
The act to establish the judicial courts of the United States authorizes the
supreme court, “to issue writs of mandamus, in cases warranted by the
principles and usages of law, to any courts, appointed or persons holding
office, under the authority of the United States.” The secretary of state,
being a person holding an office, under the authority of the United States,
is precisely within the letter of this description. If this court is not
authorized to issue a writ of mandamus to such an officer, it must be
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because the law is unconstitutional, and therefore, absolutely incapable of
conferring the authority, and assigning the duties which its words purport
to confer and assign.
The constitution vests the whole judicial power of the United States in one
supreme court, and such inferior courts as congress shall, from time to
time, ordain and establish. This power is expressly extended to all cases
arising under the laws of the United States; and consequently, in some
form, may be exercised over the present case; because the right claimed
is given by a law of the United States.
In the distribution of this power, it is declared, that “the supreme court shall
have original jurisdiction, in all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be a party. In all
other cases, the supreme court shall have appellate jurisdiction.” It has
been insisted ... that as the original grant of jurisdiction to the supreme
and inferior courts, is general, and the clause assigning original jurisdiction
to the supreme court, contains no negative or restrictive words, the power
remains to the legislature, to assign original jurisdiction to that court, in
other cases than those specified in the article which has been recited;
provided those cases belong to the judicial power of the United States.
...If congress remains at liberty to give this court appellate jurisdiction,
where the constitution has declared their jurisdiction shall be original; and
original jurisdiction where the constitution has declared it shall be
appellate; the distribution of jurisdiction, made in the constitution, is form
without substance....
It cannot be presumed, that any clause in the constitution is intended to be
without effect; and therefore, such a construction is inadmissible, unless
the words require it....
When an instrument organizing, fundamentally, a judicial system, divides it
into one supreme, and so many inferior courts as the legislature may
ordain and establish; then enumerates its powers, and proceeds so far to
distribute them, as to define the jurisdiction of the supreme court, by
declaring the cases in which it shall take original jurisdiction, and that in
others it shall take appellate jurisdiction, the plain import of the words
seem to be, that in one class of cases, its jurisdiction is original and not
appellate; in the other, it is appellate, and not original. If any other
construction would render the clause inoperative, that is an additional
reason for rejecting such other construction, and for adhering to their
obvious meaning. To enable this court, then, to issue a mandamus, it
must be shown to be an exercise of appellate jurisdiction, or to be
necessary to enable them to exercise appellate jurisdiction.
... The authority, therefore, given to the supreme court by the act
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establishing the judicial courts of the United States, to issue writs of
mandamus to public officers, appears not to be warranted by the
constitution; and it becomes necessary to inquire, whether a jurisdiction so
conferred can be exercised.
Next, the Court considered the constitutionality of Section 13 of the Judicial Act of 1789.
Marshall continued:
The question, whether an act, repugnant to the constitution, can become
the law of the land, is a question deeply interesting to the United States;
but, happily, not of an intricacy portioned to its interest. It seems only
necessary to recognize certain principles supposed to have been long and
well established, to decide it....
This original and supreme will organizes the government, and assigns to
different departments their respective powers.... The powers of the
legislature are defined and limited; and that those limits may not be
mistaken or forgotten, the constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be
restrained? The distinction between a government with limited and
unlimited powers is abolished, if those limits do not confine the persons on
whom they are imposed, and if acts prohibited and acts allowed, are of
equal obligation. It is a proposition too plain to be contested, that the
constitution controls any legislative act repugnant to it; or that the
legislature may alter the constitution by an ordinary act.
Between these alternatives, there is no middle ground. The constitution is
either a superior paramount law, unchangeable by ordinary means, or it is
on a level with ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former part of the
alternative be true, then a legislative act, contrary to the constitution, is not
law; if the latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power, in its own nature,
illimitable.
...
If an act of the legislature, repugnant to the constitution, is void, does it
not, withstanding its invalidity, bind the courts, and oblige them to give it
effect? Or, in other words, though it be not law, does it constitute a rule as
operative as if it was a law? This would be to overthrow, in fact, what was
established in theory, and would seem, at first view, an absurdity too gross
to be insisted on....
Therefore, Chief Justice Marshall said 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
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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?
... [T]he framers of the constitution contemplated that instrument as a rule
for the government of courts, as well as of the legislature. Why otherwise
does it direct the judges to take an oath to support it?...
It is also not entirely unworthy of observation that in declaring what shall
be the supreme law of the land, the constitution itself is first mentioned;
and not the laws of the United States, generally, but those only which shall
be made in pursuance of the constitution, have that rank.
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.
The rule must be discharged.
Thus, Marshall declared the Supreme Court as the final judge of constitutionality, giving
it the right of judicial review.
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MCCULLOCH v. MARYLAND
17 U.S. 316, 4 L.Ed. 579
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.
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•
ISSUE: Does the United State Congress, under the “necessary and proper”
clause of Article I, have the power to act outside specific grants of authority set
forth in the Constitution?
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MCCULLOCH v. MARYLAND (1819)
Decision
Chief Justice John Marshall wrote the decision for the unanimous Court, holding that
Congress had the power to incorporate a national bank. Writing the Court’s decision,
Marshall began:
The first question made in the cause is, has Congress the power to
incorporate a bank?...
...The powers of the general government, it has been said, are delegated
by the states, who alone are truly sovereign; and must be exercised in
subordination to the states, who alone possess supreme domination.
It would be difficult to sustain this proposition. The convention which
framed the constitution was, indeed, elected by the State legislatures. But
the instrument, when it came from their hands, was a mere proposal,
without obligation or pretensions to it. It was reported to the then existing
Congress of the United States, with a request that it might “be submitted
to a convention of Delegates, chosen in each State, by the people thereof,
under the recommendation of its legislature, for their assent and
ratification.”
This mode of proceeding was adopted; and by the
Convention, by Congress, and by the State Legislatures, the instrument
was submitted to the people. They acted upon it, in the only manner in
which they can act safely, effectively, and wisely, on such a subject, by
assembling in Convention. It is true, they assembled in their several
States; and where else should they have assembled? No political
dreamer was ever wild enough to think of breaking down the lines which
separate the States, and of compounding the American people into one
common mass. Of consequence, when they act, they act in their States.
But the measures they adopt do not, on that account cease to be the
measures of the people themselves, or become the measures of the state
governments.
Marshall next discussed the extent of congressional power. He continued:
The government of the Union ... is emphatically, and truly, a government
of the people. In form and in substance it emanates from them. Its
powers are granted by them, and are to be exercised directly on them,
and for their benefit.
This government is acknowledged by all to be one of enumerated powers.
The principle, that it can exercise only the powers granted to it, would
seem too apparent to have required to be enforced by all those arguments
which its enlightened friends, while it was depending before the people,
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found it necessary to urge. That principle is now universally admitted. But
the question respecting the extent of the powers actually granted, is
perpetually arising, and will probably continue to arise, as long as our
system shall exist.
Although the specific powers of Congress do not include the power to charter a
corporation, the section enumerating these powers includes a statement giving
Congress the authority to make all laws “necessary and proper” for executing its
specified tasks. In Marshall’s opinion, this authority grants Congress additional powers.
He wrote:
... The word “necessary” is considered as controlling the whole sentence,
and as limiting the right to pass laws for the execution of the granted
powers, to such as are indispensable, and without which the power would
be nugatory. That it excludes the choice of means, and leaves to
Congress, in each case, that only which is most direct and simple.
Is it true that this is the sense in which the word “necessary” is always
used? Does it always import an absolute physical necessity, so strong
that one thing, to which another may be termed necessary, cannot exist
without that other? We think it does not. If reference be had to its use, in
the common affairs of the world, or in approved authors, we find that it
frequently imports no more than that one thing is convenient, or useful, or
essential to another....
[T]he Necessary and Proper Clause was not intended to limit Congress’s
power to legislate] for the following reasons:
1st. The clause is placed among the powers of Congress, not
among the limitations on those powers.
2nd. Its terms purport to enlarge, not to diminish the powers
vested in the government. It purports to be an additional power, not
a restriction on those already granted.
On the question of whether Maryland could tax the National Bank, the Chief Justice
wrote:
That the power of taxation is one of vital importance; that it is retained by
the states; that it is not abridged by the grant of a similar power to the
government of the Union; that it is to be concurrently exercised by the two
governments; are truths which have never been denied.... The states are
expressly forbidden to lay any duties on imports or exports, except what
may be absolutely necessary for executing their inspection laws. If the
obligation of this prohibition must be conceded--if it may restrain a state
from the exercise of its taxing power on imports and exports--the same
paramount character would seem to restrain, as it certainly may restrain, a
state from such other exercise of this power, as is in its nature
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incompatible with, and repugnant to, the constitutional laws of the Union....
On this ground the counsel for the bank place its claim to be exempted
from the power of a state to tax its operations. There is no express
provision for the case, but the claim has been sustained on a principle
which so entirely pervades the constitution, is so intermixed with the
materials which compose it, so interwoven with its web, so blended with its
texture, as to be incapable of being separated from it without rendering it
into shreds.
This great principle is, that the constitution and the laws made in
pursuance thereof are supreme; that they control the constitution and laws
of the respective states, and cannot be controlled by them....
That the power of taxing by the states may be exercised so as to destroy
it, is too obvious to be denied....
Chief Justice Marshall concluded his writing with:
The court has bestowed on this subject its most deliberate consideration.
The result is a conviction that the states have no power, by taxation or
otherwise, to retard, impede, burden, or in any manner control the
operations of the constitutional laws enacted by Congress to carry into
execution the powers vested in the general government. This is, we think,
the unavoidable consequence of that supremacy which the constitution
has declared.
We are unanimously of opinion that the law passed by the legislature of
Maryland, imposing a tax on the Bank of the United States, is
unconstitutional and void.
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BARRON v. THE MAYOR AND CITY COUNCIL OF BALTIMORE
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 that 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 vessels, and 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 the injury was a matter of
public nuisance. 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 prohibit the states as well as the national
government from taking private property, including interference with the property,
without just compensation?
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BARRON v. BALTIMORE (1833)
Decision
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. He began his decision 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
States.
...
... [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 government--not
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.
21
© State Bar of Texas
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© State Bar of Texas
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