Table of Contents
TOPIC 1 - Understanding the US Supreme Court.............................2
TOPIC 2 - Interpreting the Constitution: gun control and the Second
Amendment................................................................................ 23
METHODS OF CONSTITUTIONAL INTERPRETATION................................23
SECOND AMENDMENT........................................................................25
TOPIC 3 – State Sovreignity and Federalism Through the Lens of
Criminal Law..............................................................................57
TOPIC 4 - Protecting Property: The Takings Clause and Procedural
Due Process...............................................................................81
TOPIC 6 – The First Amendment, Part I: Fundamental Principles...110
TOPIC 7 - The First Amendment II: Censorship and the problem of
“hate speech”..........................................................................146
TOPIC 8 – STRUCTURAL PROTECTION OF FREEDOM......................170
TOPIC 10 - Dealing with discrimination: equal protection, race, and
the legal battles over affirmative action.....................................220
TOPIC 11 – Discrimination in Other Contexts – Sex and Sexual
Orientation............................................................................... 247
TOPIC 12 - The right to privacy and the battle over abortion........274
1
, TOPIC 1 - Understanding the US Supreme
Court
Structure of 1. President (executive power)
the 2. Congress (two bodies: Senate – with 2 members from each state –
government and the House of Representatives (with 535 members appointed by
the population) (legislative power)
3. Judiciary.
In our democracy, only two of the three branches are set up to reflect the will
of the people:
Elected officials in Congress, representing the will of the people,
make the laws.
The executive branch, led by the president, enforces the laws –
basically acting on the will of the people.
The constitution requires the congress to establish a Supreme Court.
SUPREME COURT
General The Constitution requires that Congress establish a Supreme Court (9
Justices). The President nominates a candidate to the Court. The U.S. Senate
(consisting of 100 members – two Senators from each State) must confirm
the nomination.
The role of the Supreme Court: Final arbiter of the Constitution’s meaning,
ensures laws align with the Constitution.
Constitutional Article III of the Constitution establishes the judiciary. Congress has the
Basis authority to set the number of Justices, which has been nine since 1869.
Lifetime Justices serve for life, unlike the President or Senators who have set terms.
Appointment
Power of the Supreme Court
Adversarial U.S. law follows an adversarial system where opposing parties present their
Legal System case to a neutral party (judge or jury).
Adversarial v. Adversarial system (like many common law countries) as opposed to the
Inquisitorial inquisitorial system used in many civil law countries.
System
The inquisitorial process can be described as an official inquiry to ascertain
the truth, whereas the adversarial system uses a competitive process
between prosecution and defence to determine the facts. The inquisitorial
process grants more power to the judge who oversees the process, whereas
the judge in the adversarial system serves more as an arbiter between
2
, claims of the prosecution and defence.
The role of the jury is to find facts. The role of the judge or judges is to
impartially apply the law to the facts of the case.
Judicial Alexis De Tocqueville described the U.S. Supreme Court as a remarkably
Power and powerful institution, asserting that “a more imposing judicial power was
independence never constituted by any people.”
Chief Justice John Marshall (1805) emphasized that judicial decisions are
influenced by political theories and perspectives, acknowledging political
factors in the Court's functioning.
Judges as Servants of the Law: Judges are likened to umpires—"they
apply the rules, but do not make them." This highlights the limited and
impartial role of judges in the legal system.
Judicial Role The judge’s role is to apply the law impartially, like an umpire in a game.
Judicial Established in Marbury v. Madison (1803). This case set the precedent for
Review judicial review, where the Court has the power to interpret the Constitution
and invalidate unconstitutional laws.
Marbury v. Facts Issue Holding Notes
Madison President Adams Whether he had (1) Yes, since the seal of First established the
rushed to nominate right to his the US has been affixed to judicial review
federalists for judicial commission? If his commission making it power of the SC.
positions before the yes, what about final. (SC can assess
end of his term. Some the legal (2) Right to seek relief in constitutionality of
were not given remedy? Can court. laws)
commissions before the relief be (3) Relief sought by “The power that the
the lapse of the term, issued by the Marbury appropriate (i.e., SC established was
including Marbury. Supreme court federal court to issue writ profoundly more
When President in this particular of mandamus to require important every
Jefferson took office, case? Secretary to do his duty). act of Congress can
he decided not to (4) SC cannot issue the in an appropriate
proceed with the relief. Constitution allows case be reviewed by
commission to those SC to issue writ of the SC to assess its
nominated by mandamus to person constitutionality”
President Adams. holding an office under
Marbury brought authority of US (such as
action against the Secretary) BUT giving SC
Secretary before the original jurisdiction over
Supreme Court to actions for writs of
require delivery of his mandamus directly
commission; under the conflicts with Article III
Court’s original and is therefore
jurisdiction. unconstitutional. In most
cases SC has an “appellate
jurisdiction”, with very
limited number of actions
falling under the SC’s
original jurisdiction.
SC avoided a
constitutional
confrontation; it held that
3
, did not have the power to
hear the case, and
therefore it could not
award the relief requested.
“Either the Constitution is
superior law or it is of the
same authority of ordinary
legislation. The former is
the whole point of a
written constitution. It is
the judiciary’s job to
interpret the laws.”
Quotes from Marbury v. “The very essence of civil liberty certainly consists in the right of every
Madison individual to claim the protection of the laws, whenever he receives an injury.
One of the first duties of government is to afford that protection. 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.”
"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 emphatically the province and the duty of the Judicial Department to say
what the law is."
Levels of Judicial review Levels of judicial review test (what courts use to determine the
test constitutionality of a statute or ordinance)
a) Strict scrutiny (violating a fundamental right such
as the right to vote, race discrimination, etc.)
Government’s interest must be compelling
(essential, such as national security)
Government’s action must be "narrowly
tailored" to achieve that interest (least
restrictive means) but effective in doing so
There must be no other less discriminatory
way to achieve that goal
Burden of proof is on the
government
b) Intermediate scrutiny (statute negatively affects
certain protected classes such as sex/gender
discrimination)
Must advance an important government
interest (not required to be compelling)
Statute must be “substantially related” to
the interest
Burden of proof is on the
government
4
TOPIC 1 - Understanding the US Supreme Court.............................2
TOPIC 2 - Interpreting the Constitution: gun control and the Second
Amendment................................................................................ 23
METHODS OF CONSTITUTIONAL INTERPRETATION................................23
SECOND AMENDMENT........................................................................25
TOPIC 3 – State Sovreignity and Federalism Through the Lens of
Criminal Law..............................................................................57
TOPIC 4 - Protecting Property: The Takings Clause and Procedural
Due Process...............................................................................81
TOPIC 6 – The First Amendment, Part I: Fundamental Principles...110
TOPIC 7 - The First Amendment II: Censorship and the problem of
“hate speech”..........................................................................146
TOPIC 8 – STRUCTURAL PROTECTION OF FREEDOM......................170
TOPIC 10 - Dealing with discrimination: equal protection, race, and
the legal battles over affirmative action.....................................220
TOPIC 11 – Discrimination in Other Contexts – Sex and Sexual
Orientation............................................................................... 247
TOPIC 12 - The right to privacy and the battle over abortion........274
1
, TOPIC 1 - Understanding the US Supreme
Court
Structure of 1. President (executive power)
the 2. Congress (two bodies: Senate – with 2 members from each state –
government and the House of Representatives (with 535 members appointed by
the population) (legislative power)
3. Judiciary.
In our democracy, only two of the three branches are set up to reflect the will
of the people:
Elected officials in Congress, representing the will of the people,
make the laws.
The executive branch, led by the president, enforces the laws –
basically acting on the will of the people.
The constitution requires the congress to establish a Supreme Court.
SUPREME COURT
General The Constitution requires that Congress establish a Supreme Court (9
Justices). The President nominates a candidate to the Court. The U.S. Senate
(consisting of 100 members – two Senators from each State) must confirm
the nomination.
The role of the Supreme Court: Final arbiter of the Constitution’s meaning,
ensures laws align with the Constitution.
Constitutional Article III of the Constitution establishes the judiciary. Congress has the
Basis authority to set the number of Justices, which has been nine since 1869.
Lifetime Justices serve for life, unlike the President or Senators who have set terms.
Appointment
Power of the Supreme Court
Adversarial U.S. law follows an adversarial system where opposing parties present their
Legal System case to a neutral party (judge or jury).
Adversarial v. Adversarial system (like many common law countries) as opposed to the
Inquisitorial inquisitorial system used in many civil law countries.
System
The inquisitorial process can be described as an official inquiry to ascertain
the truth, whereas the adversarial system uses a competitive process
between prosecution and defence to determine the facts. The inquisitorial
process grants more power to the judge who oversees the process, whereas
the judge in the adversarial system serves more as an arbiter between
2
, claims of the prosecution and defence.
The role of the jury is to find facts. The role of the judge or judges is to
impartially apply the law to the facts of the case.
Judicial Alexis De Tocqueville described the U.S. Supreme Court as a remarkably
Power and powerful institution, asserting that “a more imposing judicial power was
independence never constituted by any people.”
Chief Justice John Marshall (1805) emphasized that judicial decisions are
influenced by political theories and perspectives, acknowledging political
factors in the Court's functioning.
Judges as Servants of the Law: Judges are likened to umpires—"they
apply the rules, but do not make them." This highlights the limited and
impartial role of judges in the legal system.
Judicial Role The judge’s role is to apply the law impartially, like an umpire in a game.
Judicial Established in Marbury v. Madison (1803). This case set the precedent for
Review judicial review, where the Court has the power to interpret the Constitution
and invalidate unconstitutional laws.
Marbury v. Facts Issue Holding Notes
Madison President Adams Whether he had (1) Yes, since the seal of First established the
rushed to nominate right to his the US has been affixed to judicial review
federalists for judicial commission? If his commission making it power of the SC.
positions before the yes, what about final. (SC can assess
end of his term. Some the legal (2) Right to seek relief in constitutionality of
were not given remedy? Can court. laws)
commissions before the relief be (3) Relief sought by “The power that the
the lapse of the term, issued by the Marbury appropriate (i.e., SC established was
including Marbury. Supreme court federal court to issue writ profoundly more
When President in this particular of mandamus to require important every
Jefferson took office, case? Secretary to do his duty). act of Congress can
he decided not to (4) SC cannot issue the in an appropriate
proceed with the relief. Constitution allows case be reviewed by
commission to those SC to issue writ of the SC to assess its
nominated by mandamus to person constitutionality”
President Adams. holding an office under
Marbury brought authority of US (such as
action against the Secretary) BUT giving SC
Secretary before the original jurisdiction over
Supreme Court to actions for writs of
require delivery of his mandamus directly
commission; under the conflicts with Article III
Court’s original and is therefore
jurisdiction. unconstitutional. In most
cases SC has an “appellate
jurisdiction”, with very
limited number of actions
falling under the SC’s
original jurisdiction.
SC avoided a
constitutional
confrontation; it held that
3
, did not have the power to
hear the case, and
therefore it could not
award the relief requested.
“Either the Constitution is
superior law or it is of the
same authority of ordinary
legislation. The former is
the whole point of a
written constitution. It is
the judiciary’s job to
interpret the laws.”
Quotes from Marbury v. “The very essence of civil liberty certainly consists in the right of every
Madison individual to claim the protection of the laws, whenever he receives an injury.
One of the first duties of government is to afford that protection. 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.”
"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 emphatically the province and the duty of the Judicial Department to say
what the law is."
Levels of Judicial review Levels of judicial review test (what courts use to determine the
test constitutionality of a statute or ordinance)
a) Strict scrutiny (violating a fundamental right such
as the right to vote, race discrimination, etc.)
Government’s interest must be compelling
(essential, such as national security)
Government’s action must be "narrowly
tailored" to achieve that interest (least
restrictive means) but effective in doing so
There must be no other less discriminatory
way to achieve that goal
Burden of proof is on the
government
b) Intermediate scrutiny (statute negatively affects
certain protected classes such as sex/gender
discrimination)
Must advance an important government
interest (not required to be compelling)
Statute must be “substantially related” to
the interest
Burden of proof is on the
government
4
