The Court's first task was to define its role, to establish the doctrine and scope of judicial review by the Court of laws enacted by Congress and the states and in particular its right to declare unconstitutional laws which in the view of a majority of the Court at any time conflicted with the Constitution. That principle evolved gradu completelyy, at first in rather tentative form by the Court front to the time John marshal became Chief Justice in 1801 and then through a series of decisions during his term (1801-1835).
Marshall proceeded cautiously, opining in Marbury v. Madison in 1803 that the Court had the power, even if it was not ready to exercise it, to declare an Act of Congress invalid. accordingly in Fletcher v. Peck (1810), the Court enunciated that same power with take to be to state laws. In Martins v. Hunter's Lessee (1816), Justice Story said the " bulk in enacting the Constitution, wanted to modify state sovereignty" (41). there then followed a series of decisions which limited the power of the states to arbitrate with private property rights under the supremacy, arrest and commerce articles. McCloskey says that "the contract clause became a mighty instrument for the judicial guard of property rights against state abridgement" (49). The booster cable contract clause object lesson was Da
Through its torrid defense of liberty of contract, which as McCloskey points out was often evince in torturous logic, the Court proceeded on a case by case basis to facilitate the rapid blowup of industry which was at its peak in the period leading up to World War I. Levinson says that "the Court has seldom lagged far behind or far ahead of America" and that it "seldom overestimated its power resources" (209). Court interpretations of the sweep of the commerce clause were particularly ambiguous, the extent of which varied according to the predelictions of the Court.
Laissez Faire v.
Social Regulation (1866-1937)
At first, even after it decided in 1925 that the Bill of Rights use to the states through the 14th Amendment, it still accepted various limitations on the right of free speech, such as Justice Holmes' " classify and present danger test" (115). After 1931, the Court go consistently in the direction of holding almost all state restraints on free speech and religion as presumptively illegal. At the same time, the Court in the fifties tended to backtrack and to acquiesce in federal laws controlling house servant subversion until it finally invalidated state loyalty oaths in Pennsylvania v. Nelson (1956).
McCloskey, Robert G., Revised by Levinson, Sanford. The American
One senses in Levinson a lack of comfort over some of the trends in the Court in the post-war period. He says that "the autocratic Court in the groundbreaking era has not met it" [the above challenge] (213). He says that recent Courts entertain been "composed of relative non-entities" and that appointees have been drawn almost only when from judges of lower courts (221). He does not fully inform why this is so, saying it is "a mystery" why Supreme Court appointments have been drawn from such a peg down base (220). His analysis of this topic is a bit shallow.
A similar trend was evident in the expansion of the rights of sorry suspects in state as well as federal trials. The exclusionar
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