United states supreme court

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Prepared by

Yvonne Greenwood, Coordinator

State Bar of Texas—Law-Related Education

1-800-204-2222 ext. 2120


1All 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


Cases & Activities:`

Barron v. Baltimore (1833)


Marbury v. Madison (1803)


McCulloch v. Maryland (1819)


McCulloch v. Maryland Case Studies


Gibbons v. Ogden (1824)


Scott v. Sandford (1857)


Learning Stations Scott v. Sandford


Plessy v. Ferguson (1896)


Brown v. Board of Education (1954)


Brown v. Board of Education Activity


California v. Bakke (1978)


Gratz v. Bollinger (2003)


Grutter v. Bollinger (2003)


Everything Else Being Equal


Baker v. Carr (1962)


Reynolds v. Sims (1964)


Wesberry v. Sanders (1964)


Drawing Discriminating Districts


Reynolds v. U.S. (1878)


Everson v. Ewing. (1947)


Engel v. Vitale (1962)


Wisconsin v. v. Yoder (1972)


Schenck v. U.S. (1919)


Why Can’t You Say That?


Abrams v. U.S. (1919)


Gitlow v. New York (1925)


Tinker v. Des Moines (1969)


Korematsu v. U.S. (1944)


Miranda v. Arizona (1966)




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

  1. summarize the issues, decisions, and significance of landmark Supreme Court cases including Marbury v. Madison, [McCulloch v. Maryland, and Gibbons v. Ogden]; and

  2. 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 issues on American society in the 20th century. The student is expected to

  1. analyze the effects of 20th-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

  1. 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?



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 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.

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?



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 commission.


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 right....
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?



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, 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.

2d. 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 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.


Case Studies

Learning Objectives: The student will

    1. Examine the “Necessary and Proper” Clause of Article I in the U.S. Constitution;

    2. Apply the ruling in the Supreme Court case, McCulloch v. Maryland

to other situations.
TEKS/TAKS: 8.19 A; U.S. Hist. 18 A, 26 A & B; Govt. 8 D, 9 A, B, C, E & F; 23 A & B
Vocabulary: Corporation, depression, monopoly, national bank, Necessary and Proper Clause
Teaching Strategy:

  1. Go over any unfamiliar words listed in vocabulary above.

  2. Show Attachment 1 (Article I, Section 8, Clause 18 of the U. S. Constitution—the Necessary and Proper Clause). Ask volunteers what they think the writers of the Constitution wanted this clause to mean.

  3. Pass out the case McCulloch v. Maryland. Ask several students to read orally the facts of the case as other class members follow along with their copies. Ask students to decide exactly what question the Supreme Court was being asked to answer (issue). Discuss the case and have students give their opinion of its outcome.

  4. Either explain the Court’s decision to the class or have them read the provided decision.

A simple summary of the decision would be: Unanimously, the Court upheld the power of Congress to create a national bank. Chief Justice John Marshall, writing for the Court, explained that the Constitution does not need to expressly grant Congress the power to establish a bank. Such expressly listed Congressional powers as the power to tax, to spend money, to borrow money, and to support the Army and Navy implied the Congress had the power to do so. The Court also ruled that the states could not tax the bank because to do so would interfere with national supremacy. Marshall wrote, “The power to tax involves the power to destroy ….”

  1. Ask students to come up with constitutional principles established by this case.

(First, the “implied powers doctrine” allows broad interpretation of the Necessary and Proper Clause to let Congress choose the means it wishes to carry out the powers the Constitution expressly gave it. Secondly, “national supremacy” forbids the states to interfere in the constitutional operations of the national government.)

  1. Put the class into groups of three to five students each. Pass out the case studies and have groups follow directions on the handout. Emphasize that reasons must be included with each answer.

  1. Compare different group decisions as a class. The cases are hypothetical, but a key has been provided for guidance to the teacher.

  1. Ask students to explain how this 1819 Supreme Court case still affects their lives today.

Attachment One



The Congress shall have the Power –-

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



Directions: Working in groups, read each of the following hypothetical cases involving congressional actions. Using the Constitution and the decision in McCulloch v. Maryland, decide which congressional action(s) would be allowed and which would not be allowed. EXPLAIN YOUR ANSWERS BY QUOTING FROM THE McCULLOCH v. MARYLAND DECISION AND SPECIFIC SECTIONS IN THE CONSTITUTION THAT WOULD POSSIBLY APPLY TO THE QUESTION ASKED.
Case One: In order to maintain military strength, Congress passes a law, which allows the United States to draft eighteen-year-olds into military service.

Case Two: Congress believes that all citizens must have military training and passes a law requiring all ministers, priests, and rabbis in the country to give sermons supporting military training.

Case Three: With the U. S. government experiencing financial trouble, Congress passes a law allowing the president to appoint citizens “Lords and Ladies of the United States.” In return, these “Lords and Ladies” agree to donate large sums of money to the United States treasury.

Case Four: A backlog of cases clogs the federal court system. In order to reduce the buildup, Congress creates a series of special courts to hear certain kinds of cases.



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