# Congress and the Bill of Rights **URL:** \ **Category:** Factual Questions\ **Created:** [May 16, 2002, 9:32pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449 "2002-05-16T21:32:45Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [May 16, 2002, 9:32pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/1 "2002-05-16T21:32:45Z")
What was the first decision of the United States Supreme Court to invalidate an act of Congress on the ground that it violated a specific provision of the Bill of Rights? What was the first decision of the United States Supreme Court to invalidate an action by the President on the ground that it violated a specific provision of the Bill of Rights? (You’d be surprised how difficult it is to research this.) ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [May 17, 2002, 2:15am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/2 "2002-05-17T02:15:00Z")
The pivital case to start the ball rolling is _Marbury v Madison_ (1803) . “_The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since._” Source – [http://www.jmu.edu/madison/marbury/background.htm](http://www.jmu.edu/madison/marbury/background.htm) That same page also says, “\*The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. \*” So in one fell swoop, you can start your search only back to 1857. You could also go to [http://www.findlaw.com/casecode/constitution/](http://www.findlaw.com/casecode/constitution/) and do a systematic search of the first ten amendments and see if you can find the first court case (1857?) to answer your first question. ---
**Author:** ![Tedster](https://avatars.discourse-cdn.com/v4/letter/t/4491bb/32.png) [@Tedster](https://boards.straightdope.com/u/Tedster)\ **Post date:** [May 17, 2002, 3:50am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/3 "2002-05-17T03:50:48Z")
Before the Court so slyly reserved for itself the final arbitration of All That Is Constitutional via _Marbury_, what was the mechanism or theory behind what was Constitutional or not? ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [May 17, 2002, 4:04am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/4 "2002-05-17T04:04:18Z")
> [@](#): > > The principle on which Marshall gave the decision had been stated several times before, for the state courts had announced it when declaring statutes void and, among others, Hamilton had clearly set forth the doctrine in The Federalist. From [http://www.bartleby.com/226/0607.html](http://www.bartleby.com/226/0607.html) I’ll leave it to Constitutional scholars to debate whether it was a good thing. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [May 17, 2002, 4:04am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/5 "2002-05-17T04:04:28Z")
Since Marbury v Madison was so early on after the adoption of the Constitution, there isn’t much to go on. I believe each branch of government basically decided for themselves. This didn’t end the question for all time. President Jackson ignored the courts when he created the Trail of Tears. Or am I mis-remembering? ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [May 17, 2002, 4:18am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/6 "2002-05-17T04:18:25Z")
For a relatively easy read of cases that affect particular amendments of the constitution try [http://www.access.gpo.gov/congress/senate/constitution/toc.html](http://www.access.gpo.gov/congress/senate/constitution/toc.html) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 17, 2002, 4:38am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/7 "2002-05-17T04:38:23Z")
> [@](#): > > \*Originally posted by Tedster \* > \*\*Before the Court so slyly reserved for itself the final arbitration of All That Is Constitutional via _Marbury_, what was the mechanism or theory behind what was Constitutional or not? \*\* Slyly is right. Marshall was a fox. Prior to marbury it was up in the air. There is no provision for judicial review in the constitution. Jefferson felt that the people were the ultimate arbitrers of what was constitutional and what wasn’t through the power of the ballot box. He thought the executive had just as much right to refuse to enforce an unconstitutional law as did the judiciary to decide on it, and if the people don’t agree the bum gets voted out. But prior to (and long after) Marbury, whether or not a branch was acting unconstitutionally didn’t come up. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 17, 2002, 5:39am UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/8 "2002-05-17T05:39:26Z")
The first Presidential case may have been Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 1952. Presidential seizure of steel for the war violates takings clause of the 5th amendment. Still not sure about the first case invoving an act of congress. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 17, 2002, 2:24pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/9 "2002-05-17T14:24:37Z")
Good Lord, what am I thinking? The first case to declare an act of Congress unconstitutional due to a provision of the bill of rights WAS that second case in 1857…Dred Scott v. Sandford. The Dred Scott decision held unconstitutional the Missouri Compromise of 1820 partially on the grounds that it violated the due process clause of the 5th amendment. I should’ve answered this in about 2 seconds. Sheesh, prav, wake up! ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 17, 2002, 5:31pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/10 "2002-05-17T17:31:58Z")
Good work, **Pravnik**! I knew that the second case to declare a federal law unconstitutional was _Scott v. Sandford_ (and that deserves a [sic] since the respondent’s name was actually Sanford; the trial court reporter erred). But I hadn’t realized that the Fifth Amendment was the grounds. It might be noted that judicial review fits very well into the scheme of how courts operate, and that the courts have never arrogated to themselves _exclusive_ right to determine constitutionality, only the finality of such determination. In short, the Congress can decide that a bill should not be passed specifically because it is unconstitutional – and there have been cases where that argument was made in open debate. The President can refuse to enforce a law because it is in his opinion unconstitutional. The job of the courts is to apply _the law_ to the case or controversy brought before them. Quite simply, what “the law” means does not equate to statute – it means the corpus of legality established through constitution-making, legislation, promulgation of regulations, formal opinions by jurisconsults, case law, and so on. Bottom line: did the cop who ticketed me for driving 75 in a 65 MPH zone act in accordance with the law? Am I guilty of a violation of the General Statutes of North Carolina based on the evidence brought before the court? This is a case where it can be decided by application of a statute. But maybe someone has been locked up for several weeks while the investigators attempt to find enough evidence to prove their moral conviction that this guy was indeed the man who robbed the 7-11. Is he entitled to his freedom, at least until they scare up that evidence and take him to trial? The Sixth and Fourteenth Amendments and the writ of habeas corpus, a piece of the Common Law, are what are applicable. In short, if the Constitution is the fundamental law of the U.S., to which all other laws are to conform, and _in the case before the court_ it appears to the court that the application of the statute in question does not so conform, the court’s adherence to the enforcement of _the law_ (the abstract concept, as opposed, in this case, to the statute) requires that they ignore the statute to enforce the law – specifically, as it’s set forth in the Constitution. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 17, 2002, 8:43pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/11 "2002-05-17T20:43:50Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*Good work, **Pravnik**! I knew that the second case to declare a federal law unconstitutional was _Scott v. Sandford_ (and that deserves a [sic] since the respondent’s name was actually Sanford; the trial court reporter erred). But I hadn’t realized that the Fifth Amendment was the grounds. > \*\* Thanks 🙂 I did the same thing more or less, “Okay, Marbury, then Dred Scott, that wasn’t it…what was it?” It wasn’t till I got up this morning that I remembered there were 5th amendment issues in Dred Scott. From a modern perspective it’s sort of understandable to forget, I suppose, since it’s a property right we don’t recognize anymore; the right of San(d)ford (good eye on that, by the way) to not be divested of his slave without due process. Nice judicial review breakdown- ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 17, 2002, 8:50pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/12 "2002-05-17T20:50:13Z")
> [@](#): > > \*Originally posted by Telemark \* > \*\*Since Marbury v Madison was so early on after the adoption of the Constitution, there isn’t much to go on. I believe each branch of government basically decided for themselves. > > This didn’t end the question for all time. President Jackson ignored the courts when he created the Trail of Tears. Or am I mis-remembering? \*\* No – you’re right. But I’d echo **samclem** ’s response – judicial review didn’t come out of nowhere. Some of the framers, including Hamilton, considered it implicit in the constitutional framework ~25 years before _Marbury_. –Cliffy ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [May 17, 2002, 10:25pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/13 "2002-05-17T22:25:07Z")
I forget the exact wording, but the constitution gives the courts the right to enforce the constitution and the _laws pursuant thereto_. Now any logician will tell you that this leaves all laws judged not pursuant thereto in limbo. Nothing is actually said about them. On the other hand, the court has, under this clause, no power to enforce laws not pursuant thereto. It is at least a very defensible position (especially to a strict constructionist, if any) that what the courts have not been granted power to do, they should refrain from doing. Incidentally, what was clever about Marbury vs. Madison was that the specific act that was declared unconstitutional was a law that granted certain powers to the judiciary. Specifically, of issuing a writ on the president. It seemed to have been forgotten during the Clinton era, although suddenly rediscovered since Bush. I suppose some constitutional scholar will explain to me why they could subpoena Clinton, but not Tom Ridge. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 18, 2002, 5:05pm UTC](https://boards.straightdope.com/t/congress-and-the-bill-of-rights/109449/14 "2002-05-18T17:05:06Z")
**Hari Seldon** , executive privilege wasn’t in issue in _Marbury v. Madison._ The question was whether section 13 of the [Judiciary Act, 1789](http://usinfo.state.gov/usa/infousa/facts/democrac/8.htm) was unconsitutional because it expanded the original jurisdiction of the Supreme Court, not whether it intruded on executive privilege. Section 13 of the Judiciary Act provided, in part: > [@](#): > > s.13 … > > The Supreme Court shall … shall have power to issue … writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States. . . . A writ of mandamus is a special remedy of public law, similar to an injunction, by which the court orders a public official to do something. In _Marbuy_, Mr. Marbury sought a writ of mandamus against the Secretary of State, James Madison, to compell Madison to deliver Marbuy’s commission as a federal magistrate. The issue was whether that grant of power to the Supreme Court violated the second paragraph of Article III, by expanding the original jurisdiction of the Supreme Court. The U.S. Constitution provides that the Supreme Court is primarily an appellate court, as set out in the second paragraph of [Article III](http://caselaw.lp.findlaw.com/data/constitution/article03/) of the Constitution: > [@](#): > > In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have **original** Jurisdiction. **In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction,** both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Court held that the grant of the mandamus power to itself was in fact unconstitutional, because the second paragraph of Article III established the original jurisdiction of the Supreme Court. Congress could not expand that original jurisdiction. Note that this specific decision, as **Polycarp** points out, is very much the sort of things that courts normally do: they decide if they have the jurisdiction to hear a case, under the applicable laws. Part of Marshall C.J.'s craftiness was to set forth the doctrine of judicial review in a case where the precise point in issue was at the heart of what courts normally do, concerning their own powers to decide cases. If you’re establishing a potentially controversial principle, such as judicial review, it certainly makes sense to do it in a case that’s at the heart of your own functions. However, to get back to your original question, _Marbury_ does not prohibit Congress from giving the lower federal courts the power to issue mandamus to an executive officer, nor does it prevent the lower courts from issuing such mandamus. Under Article III, Congress can give the lower federal courts extensive original jurisdiction - it’s just that Congress can’t give extensive original jurisdction to the Supreme Court. It’s primarily an appellate court.