What should the role of the Supreme Court be in establishing what is constitutional and unconstitutional? This question has been debated throughout history among Americans on issues ranging from a national bank, racial equality, and—over the past 50 years—abortion. In a constitutional system where there are multiple branches and levels of government, power is divided, and questions exist over who holds what authority. The country continues to be divided on the constitutionality of numerous governing policies. Is the Supreme Court in the best position to grapple with these issues?
Have students read the following excerpts. Once finished, hold a classroom debate in which students defend who they believe should be the final arbiter in the United States concerning the constitutionality of laws.
Marbury v. Madison (1803) Unanimous Opinion
The landmark Supreme Court case Marbury v. Madison established the precedent that the Supreme Court holds the power of judicial review, or the authority to determine if laws are unconstitutional or not.
“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 of the very essence of judicial duty.”
Andrew Jackson’s Bank Veto Message, July 10, 1832
The question over the efficacy and constitutionality of a national bank was one of the major topics during the early nineteenth century. In the 1819 case of McCulloch v. Maryland, the Supreme Court ruled that a national bank was constitutional. However, a little over a decade later, President Andrew Jackson vetoed a bill to renew the charter the national bank, deeming the institution to be unconstitutional.
“It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”
Abraham Lincoln’s First Inaugural Address, March 4, 1861
The Supreme Court ruled in the infamous Dred Scott case in 1857 that under the Constitution, Blacks could not become American citizens. In his first Inaugural Address, on the eve of the Civil War, newly elected President Abraham Lincoln addressed the decision.
“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Planned Parenthood v. Casey (1992), Plurality Opinion
In the case of Planned Parenthood v. Casey, the Supreme Court upheld the decision it made in Roe v. Wade that a woman had a constitutional right to abortion even as it upheld state regulations on the practice, undermined some of the core holdings in Roe, and appealed to the authority of the Court and precedent. The plurality hoped that its decision would help bring an end to the contentious debate on abortion.
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Lead your class in a debate around the question: Should the Supreme Court be the final arbiter of the Constitution? Explain to students that this debate is not over abortion itself but rather over what the role of the Court should and shouldn’t be in determining the constitutionality of laws, as well as the pros and cons of it doing so. Before beginning, establish the following rules for civil discourse with students.
- Each side should take turns to speak
- Each side should actively listen to the other side to constructively respond
- Each side should use a respectful tone
Use the following questions to guide the conversation:
- Why is it important in a constitutional form of government to have a final arbiter in disputes?
- What options exist for who the final arbiter could be?
- Which of the above passages do you believe best describes who the arbiter should be? Why?
- What are the pros and cons of having the Supreme Court be the final arbiter? What about other entities like state governments or the American people?
Marbury v. Madison (1803)
Case background and primary source documents concerning the Supreme Court case of Marbury v. Madison. Setting the precedent of Judicial review, this lesson focuses on the question of whether or not the Supreme Court should have the power to overturn unconstitutional federal laws.
Marbury v. Madison | BRI’s Homework Help Series
Marbury v. Madison was the Supreme Court case that established judicial review. William Marbury was a judge appointed at the end of John Adams’ presidency, but never got his official commission papers. Once Thomas Jefferson became president, James Madison refused to deliver the commission papers. Marbury took his case to the Supreme Court and wanted a Writ of Mandamus, requiring Madison to deliver the papers. Ultimately, the court stated that Marbury was entitled to his papers, but it was unconstitutional for the courts to issue a Writ of Mandamus. Thus, judicial review was created and the principle of checks and balances was strengthened.
Roe v. Wade (1973)
Case background and primary source documents concerning the Supreme Court case of Roe v. Wade. Dealing with a citizen's Constitutional right to privacy and liberty, this lesson asks students to evaluate the Court's constitutional reasoning in Roe v. Wade.
Roe v. Wade | Homework Help from the Bill of Rights Institute
Do women have a right to privacy when deciding whether to have an abortion? In 1969, a woman under the alias “Jane Roe” challenged a Texas law that outlawed abortions. The case eventually reached the Supreme Court, where Roe argued that the Constitution protects a woman’s right to privacy in having an abortion. In a 7-2 decision, the Court ruled the right to an abortion fell within the right to privacy protected by the 14th Amendment’s Due Process Clause. Like other Supreme Court cases related to the Due Process Clause, incorporation played a part in the Roe v. Wade ruling. Incorporation suggests that states must adhere to the protections granted in the Bill of Rights. To this day, the ruling in Roe v. Wade remains one of the most controversial Supreme Court decisions.