The U.S. Constitution: Judicial Review and the Fourteenth Amendment

law legal translation translation Nov 15, 2022
14th Amendment

Marbury v. Madison

The first and arguably most notable case in U.S. constitutional law is Marbury v. Madison, which established the principle of judicial review.  In 1800, after Thomas Jefferson defeated incumbent John Adams and prior to Jefferson’s entering office, President Adams attempted to secure control of the judiciary for the Federalist party[1] by creating new judgeships and filling them with Federalist appointees. Included in these efforts was the nomination of 42 new justices of the peace for the District of Columbia, which were confirmed by the Senate the day before President Jefferson’s inauguration. A few of the commissions, including Marbury’s, went undelivered when President Jefferson took office and ordered Secretary of State James Madison to withhold delivery of the commissions. Marbury filed a writ of mandamus[2] with the Supreme Court, requiring James Madison to deliver his commission.  The three questions brought before the Supreme Court in this case were: 1) Was Marbury entitled to the commission? 2) If so, was mandamus the appropriate remedy? 3) Was a writ of mandamus available under the Supreme Court’s original jurisdiction?  The Supreme Court’s opinion, written by Justice John Marshall, ruled that Marbury was entitled to the commission and that mandamus was the appropriate remedy.  However, the Supreme Court ruled that the Judiciary Act of 1789, which had included provisions expanding the Supreme Court’s original jurisdiction to include the issuance of writs of mandamus, was in violation of the Constitution’s Supremacy Clause (Tenth Amendment), which voided the Act.  Justice Marshall further stated that it is “emphatically the province and duty of the judicial department to say what the law is.”

Slavery, Native American Indians, and Manifest Destiny

An undeniably horrific aspect of U.S. history is slavery and the country’s treatment of Native American tribes.  While these topics are outside of our purview, they are worth the time and effort to conduct additional research.  If you are interested in learning more about slavery in the U.S., I suggest this book by Clint Smith, and if you are intrigued by Native American history, I recommend this book by Roxanne Dunbar-Ortiz.  Moving forward, I will only touch on these topics insofar as they are relevant for our purposes here. 

Slavery had been a hotly debated topic for centuries.  Although arguments in favor of or against slavery were incessant, the country quickly divided itself into free and slave states, with the free states in the north and the slave states in the south.  The country’s belief in manifest destiny—the idea that American expansion was justified, inevitable, and sanctioned by God, also justified the government’s relatively quick succession of westward movement, while forcedly removing Native American tribes from their lands and homes and engaging in war with Mexico.  Thomas Jefferson was the first to expand the country when he negotiated the Louisiana Purchase from Napoleon Bonaparte in 1803, which doubled the size of the country.  James Monroe followed in 1819, when he purchased Florida from Spain.  Texas became a state in 1845 and the country eventually gained control of the Oregon territories in a treaty with Britain in 1846.  In 1848, the Treaty of Guadalupe Hidalgo, which ended the Mexican American War, the U.S. “purchased” from Mexico for $15 million dollars the territories that are now Arizona, Colorado, New Mexico, Utah, Wyoming, and part of California.  By 1850, the U.S. controlled all land from the Atlantic to the Pacific oceans, and thirty-one territories had been admitted into the U.S. as states.  Every time a new state applied for admission, Congress would debate on whether the state should be a free or slave state.  This was a particularly weighty issue because not only did it touch on the so-called “popular sovereignty” mantra expounded by the politician Stephen Douglass, which referred to the "power of the people" to decide whether their territory should enter the union as a free or slave state, but there were fears that one too many free or slave states would disrupt the power balance in Congress.  A pattern would develop in which one state could not be admitted as a free state unless another were admitted as a slave state, and vice versa.  For example, the Missouri Compromise of 1820 admitted Missouri into the U.S. as a slave and Maine as a free state, and it also prohibited slavery in any of the Louisiana territories above the 36°30’ parallel.  This Compromise, however, would eventually be repealed by the Kansas-Nebraska Act of 1854, which not only divided the Nebraska territory into the states of Nebraska and Kansas, respectively, but forced the Native Americans living there, who had ceded their land to the U.S. government, to relocate.  The Kansas-Nebraska Act also had a profound and divisive impact on U.S. political history because it officially adopted Douglass' “popular sovereignty” punchline after the fact—meaning a state could choose to become a slave state despite slavery having been previously outlawed.  Nebraska was a northern state, so there was no debate at the time that it would enter the U.S. as a free state.  However, Kansas was a completely different matter and things would quickly grow extremely litigious.  First, it caused extensive infighting between the Whig party,[3] ultimately leading to its dissolution.  Second, opponents to the Kansas-Nebraska act eventually organized the Republican Party in Ripon, Wisconsin, which would become the leading anti-slavery party and be represented by Abraham Lincoln when he won the presidency in 1860.[4] The rift between pro and anti-slavery proponents eventually triggered the Civil War, which lasted from 1861-1865.  There are literally thousands of books and articles written on every single aspect of the war, from social, economic, financial, political, military, moral, and other viewpoints to the reasons why the south eventually lost, so there is no reason to discuss the war here.  You can find these on Amazon, Ebay, Barnes & Noble, or several other new and used book sites, or even at your local library.  For those of you who are interested in a more visual depiction of the war, I highly recommend Ken Burns’ Civil War documentary.  Although the Civil War is not relevant for our purposes here, the aftermath is. 

The period immediately after the Civil War is referred to as Reconstruction—defined as the rebuilding and reincorporating of the southern states that originally seceded back into the U.S.  This period also includes three amendments: the Thirteenth Amendment, which abolished slavery and involuntary servitude (except for prison); the Fourteenth Amendment, which declared that anyone born in the U.S. was a citizen and had all the rights reserved under the Constitution, including the Bill of Rights.  The Fourteenth Amendment also forbade the states from enacting any law that violated the federal constitution.  The Fifteenth Amendment prohibits any law that denies a citizen’s right to vote based on “race, color, or previous condition of servitude.”  While each amendment has tremendous historical significance, the Fourteenth Amendment is the most important here because it completely alters the power that the federal government has over the states.  Although the Supremacy Clause of the Tenth Amendment established a hierarchy of law, i.e., no state law may violate or contradict federal law, the Fourteenth Amendment expanded the Supreme Court's, and with it, the federal government's, authority over the citizens of the many states.  Prior to the promulgation of the fourteenth amendment, the federal government had little say over laws enacted by state legislatures, unless the Supreme Court ruled that a particular state law was inconsistent or had violated a federal law that governed the same subject matter.  Now, the Fourteenth Amendment barred state legislatures and judiciaries from making or enforcing “any law which shall abridge the privileges and immunities of citizens of the United States… [or from depriving] 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.”  This meant that the states could not only enact any law that violated federal law, but it also prohibited states from enacting any law or issuing any judicial decision that violated the rights and privileges protected under the federal constitution.  At the time, this language was specifically designed to protect newly freed slaves and other minorities from state governments that had previously attempted to enact laws seeking to restrict rights of former slaves and other minorities.  From the onset, it was one of the most controversial of all amendments, especially its first section, as it sought to protect civil rights.  Today, it is widely considered one of the most fundamental and important provisions of U.S. history. 


[1] A conservative political party considered the first party established in the U.S.

[2] A petition to order a public official to perform a statutory duty.

[3] A relatively conservative party developed in the 1830s as a response to the policies of then President, Andrew Jackson

[4] Approximately 20 miles from Fond du Lac, Wisconsin, where I was born and grew up.  Not at all important, but I thought I would share anyway.

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