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Full text of "Teachers Guide to Equal Justice Under Law"

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dfAmenca's great Chief Justice, 
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Committee on the Bicentennial of Independence and the Constitution 
Judicial Conference of the United States 



Dear Educator: 

The programs in ''Equal Justice Under Law'' and this 
teaching guide focus upon certain landmark cases which arose early 
in our history and in which Chief Justice John Marshall played a 
major role as judge. 

They are designed to promote constructive thinking about 
the United States Constitution, particularly as it contemplates 
enforcement by the courts of the separation of powers at the federal 
level, the division of powers between state and federal government^ 
as well as the specific constitutional prohibitions and limitations 
upon the exercise of official authority. 

This judicial role in implementing the constitutional design 
to provide an effective government^ but to avoid the exercise of 
arbitrary official power as well, is as important today as it was early 

in our history. 



U},^ ^ ^V^^yv ^X..^^//-r--^--^./-i 




Warren E. Burger Clement R Haynsworth Byron R White 

Chief Justice of the Chief Judge, Fourth Circuit Associate Justice, 

United States Court of Appeals U.S. Supreme Court 

Chairman, Judicial Chairman. Bicentennial Chairman, Bicentennial 

Conference Committee, Judicial Films Subcommittee. 

Conference Judicial Conference 




Table of Contents 

MARBURY V. MADISON pg. 4 

McCULLOCH V. MARYLAND pg. 8 

GIBBONS V. OGDEN pg. 12 

UNITED STATES v. BURR pg. 16 

Concluding Activities, Bibliographies and Glossary pg- 22 




Who determines what the Constitution means — what is and 
is not constitutional? 

In this 1803 case, the Supreme Court established its 
responsibility to review the constitutionality of acts of Congress. 
President John Adams appointed Federalist William Marbury as 
justice of the peace, but failed to deliver Marbury's official 
commission before President Jefferson and the Democratic- 
Republicans took over the administration. Marbwy asked the 
Supreme Court to order Jefferson's Secretary of State, James 
Madison, to deliver the commission. Marbury 's demand 
precipitated a confrontation between Chief Justice Marshall and 
President Thomas Jefferson, The Supreme Court held that it did 
not have jurisdiction and declared that the law permitting the 
Court to hear the case was unconstitutional 



Chief Justice John Marshall 



MAIffiURYvMADISON 



STUDENT 
OBJECTIVES 

1. To understand how judicial review of 
federal legislation was established in the 
United States. 

2. To underst;and Chief Justice Mar- 
shall's interpretation of the constitu- 
tional basis for judicial review of acts 
of Congress. 

3. To understand the Federalist and 
Democratic- Republican positions on ju- 
dicial review. 

4. To place the case in its political and 
historical context. 

5. To understand the basic structure of 
the American judiciary. 



BEFORE VIEWING 
Discussion Questions 

1. What are the distinct functions of the 
three branches of government? 

What limits are placed on the functions 
and power of each branch? (Art. I, II 
& III) 

2. What are t,he three levels of the fed- 
eral judiciary that were introduced by 
the Judiciary Act of 1789? 

3. What happens when the Supreme 
Court of the United States decides that 
a law is unconstitutional? 

4. What were the differences between 
the Federalist and the Jeffersonian- Re- 
publican views of government? 




Other Activities 

L Rfiview the steps in the process of 
judicial review: 

(1) Congress or a state legislature 
passes a statute; 

(2) a citizen challenges its constitu- 
tionality in a federal or state court; 

(3) the decision may be appealed to 
a higher court and may ultimately 
reach the Supreme Court. 

Propose a hypothetical law that may be 
unconstitutional. Role-play each step in 
the process. 

2. Research the Constitutional Conven- 
tion on the subject of judicial review. 
Analyze the views of the major factions. 
Role-play a debate on the relation be- 
tween the branches of the government 
that includes Jefferson, Madison, Hamil- 
ton, William Branch Giles, Gouvemeur 
Morris and Rufus King. 

3, Research the election of 1800. The 
class can recreate or develop a media 
campaign that simulates the issues and 
tone of the 1800 election. Included may 
be press releases, editorials, posters, 
brief speeches and campaign slogans. If 
videotape equipment is available, stu- 
dents may create brief tele\dsion com- 
mercials or televise a debate between 
candidates, using the rules developed 
by the League of Women Voters for the 
1976 presidential campaign (or those 
used in 1960). 



Thomas Jefferson 



AFTER VIEWING* 
Discussion Questions' 

The Constitutional Issue 

1. How does each branch of government 
decide whether a law is constitutional? 

If Congress passes a bill, do its mem- 
bers consider the law to be constitution- 
al? If the President signs a bill and a 
department carries it out, does the ex- 
ecutive branch assume the law is con- 
stitutional? 

2. How can the Supreme Court declare 
a law unconstitutional? 

What is the process for judicial review? 
What are the steps for appeal to the Su- 
preme Court? What is the result of the 
Counts declaring an act of Congress null 
and void? 

3. \Maat is the Jeffersonian-Republican 
position? 

Why did Jefferson and other Republicans 
disagree with the Court's decision that 
it could review the* constitutionality of a ■ 
law passed by Congress? What are Jef- 
ferson's arguments against the Supreme 
Court s power to declare a law unconsti- 
tutional? To whom is Congress account- 
able? 

4. What legal arguments did Chief 
Justice Marshall develop to support the 
principle of judicial review? 

Why does the Constitution take prece- 
dence over laws passed by Congress? 
What does the supremacy clause mean 
(Art. VI, Sec. 2)? 

What are Chief Justice Marshall's argu- 
ments for allo\^dng the Supreme Court to 
determine the constitutionality of a law, 
rather than another branch of the fed- 
eral government? Whom does the inde- 
pendence of the Coun protect? 

5. What were the intentions of the fram- 
ers of the Constitution regarding judi- 
cial review? 

What were the views of Hamilton (ex- 
pressed in the Federalist Papers) and 
Madison? How do Jefferson and Mar- 
shall interpret the intentions of the 
framers? How well did these two men 
know the writers of the Constitution and 
their intentions? Should either Jefferson 
or Marshall, or the present Supreme 
Court, be bound by the intentions of the 
writers of the Constitution? 

6. What are some of the precedents for 
judicial review of the constitutionality 
of an act of Congress? 

Were any state courts empowered by 
state constitutions to determine on ap- 
peal the constitutionality of laws passed 
by state legislatures? 



7. What other process for determinmg 
the constitutionality of a law is possible 
or advisable besides that of judicial 
review? 

How would it function? How would it 
protect democracy, indi\ddual rights 
against the state, or ensure that the 
Constitution is not \dolated? What did 
Jefferson suggest? 

The Political Struggle 
1. The Balance of Power 
What constitutional means does Con- 
gress have to balance the power of the 
federal judiciary? 

Which branch appropriates funds for 
the courts? What is the role of Congress 
in reviewing and impeaching presiden- 
tial appointments? Which branch deter- 
mines the jurisdiction of the courts and 
the number, of judges? 
What constitutional means does the 
executive branch have to check the pow- 
er of the judiciary? 

Who appoints members of the federal 
judiciary? Can other branches refuse to 
enforce a Supreme Court decision? 
Jefferson argued that the Supreme Court 
was not democratic. Are American courts 
democratic? Should they be? Does the 
fact that an elected Senate confirms jus- 
tices appointed by an elected President 
make the court a democratic institution? 
What power does judicial review give 
to the Supreme Court? 
Does the Court have power to enforce 
its decisions? Does the Court have a 
moral authority that is difficult to resist? 

2. The Federalists 

Who appointed the members of the Su- 
preme Court? Who appointed Marbur}- 
and the other "midnight judges''? For 
what purpose? 

Why did Marshall consider Section 13 
of the Judiciary Act of 1789 unconstitu- 
tional? With which section of the Con- 
stitution did it conflict? 
Was it necessary for the Siipreme Court 
to declare Section 13 of the Judiciar\' 
Act of 1789 unconstitutional? What 
other choices did the Court have? What 
strategy did Chief Justice Marshall 
design so Madison and the Jeffersonians 
win the case, but lose the "war"? 

3. The Jeffersonian- Republicans 
What were Jefferson's motives for with- 
holding Marbury's commission? Why 
did he feel he had the right to do so? Why 
did he challenge the Supreme Court's 
right to order him, or his Secretary of 



State, Madison, to deliver a commission 
signed by President Adams? 
WTiat constitutional means did the Jef- 
fersonians use to limit the power of the 
judiciary while the Marbury v, Madison 
suit was pending? (Repealed Judiciar}* 
Act of 1801, suspended the Supreme 
Court's June and August terms, im- 
peached federal Judge Pickering and 
threatened to impeach Supreme Coun 
Justice Chase). 

The Legal and ScMzial Consequences 

1. What would the consequences have 
been if the Supreme Coiu^ had upheld 
Marbxuy and ordered Madison to de- 
liver the commission? 

Did Jefferson intend to obey such an 
order? Would his noncompliance have 
affected the prestige of the Court? 

2. Since the Supreme Court lacked juris- 
diction over Marbury's case, it did not 
need to review the case. Would this have 
been a politically expedient decision for 
the Court? What criticism could it have 
avoided? 

3. Why was the Supreme Court's deci- 
sion generally unopposed? Are Ameri- 
cans predisposed to accept the courts 
as arbiters of disputes? Give some ex- 
amples of the range of problems— crimi- 
nal, juvenile, moral, civil, political, 
personal, domestic and economic— that 
Americans expect coiirts to resolve. 
What does the American tendency to 
entrust— and burden— the courts with 
a wide range of problems indicate about 
the responsi\'eness of courts to the 
problem of average citizens? 



^Questions in boldface type are appropriate for 
high school or college students. Instructors . 
should select from the more specific questions 
in regular type according to students' aca- 
demic levels and backgrounds. 



Other Activities 

1. Research the views of Presidents Jef- 
ferson, Jackson. Lincoln, Franklin D, 
Roosevelt and Nixon, and their strate- 
gies for dealing \\dth the Supreme Court's 
power to declare acts of Congress uncon- 
stitutional. Research the views of Chief 
Justice Marshall and Justices Holmes, 
Brandeis, Frankfurter and Black, to 
analyze the range of opinions among 
members of the Supreme Court regard- 
ing the constitutional scope of judicial 
re\'iew. 

a. Simulate an exchange of letters 
between any two persons, one op- 
posed to and one supportive of the 
principle. Each student should write 
two letters arguing opposite sides in 
the debate. An interesting debate 
would be to match a President and a 
Supreme Court Justice sendng con- 
currently. 

b. Simulate a debate between teams 
for and against judicial review of 
federal statutes. Students can either 
select a position and debate it, or 
select a historical person to role-play 
in the debate. ■ 

2. Arrange a panel discussion of judi- 
cial review of laws passed by Congress 
which includes any of the following: a 
judge, a prosecuting attorney, a defense 
attorney, a legislator, a citizen, a his- 
torian, a constitutional law specialist, a 
reporter. Students can prepare questions 
for the panel A similar panel can be 
arranged for viewing the film and struc- 
turing discussion. 



3. Simulate the writing of a constitu- 
tional amendment. Divide the class into 
groups of four to six students. Each 
group can wTite an amendment to the 
Constitution that explicitly states the 
process for determining the constitu- 
tionality of an act of Congress. Each 
group may decide among these alterna- 
tives: the Supreme Court, Congress, the 
Executive, the people, a national refer- 
endum, a new institution specifically 
established for this function, or a pro- 
cess based on that of another country- 
Amendments ought to be \\Titten, de^ 
bated before the full class and voted on, 
A three-fourths majority can "ratify 
the amendment for the class. 

4. Research the intentions of the fram- 
ers of the Constitution regarding judicial 
review (See Beard in Bibliography). . 

5. Research the precedents for judicial 
review. Consider colonial, state and 
federal precedents for the Marbury 
decision. 

6. Research the procedure for deter- 
mining constitutionaliiy in modem de- 
mocracies. Consider Great Britain, the 
Federal Republic of Germany, Canada, 
France. 

7. Research how Marbury v, Madison 
changed — or did not change — United 
States history. Analyze several signifi- 
cant cases where the Supreme Court 
struck down statutes passed by Con- 
gress. 



SUPPLEMENTAL 
AIDS* 

A. Characters 

John Marshall, fourth Chief Justice of the 
United States (1801-18351, appointed by 
John Adams. 

Thomas Jefferson, Democratic- Republican. 
third President. 

Supreme Court Justices: Washington. Pater- 
son, Chase. Gushing and Moore. 

William Marbury, appointed by President 
Adams as Justice of the Peace for the 
District of Columbia. 

James Madison, Secretary' of State under 
Jefferson. 

William Branch Giles, Democratic-RepubH- 
can Congressman from Virginia, 

Charles Lee, attorney for Marbury. 

B. Vocabulary (See Glossary) 
•judicial branch 

judiciar\^ 

judicial re\iew 

appeal 

jurisdiction 
•Constitution 

constitutional 

unconstitutional 
•legislative branch 

impeach 

Democratic-Republican 

Federalist 
•executive branch 

Secretary of State 

commission 
•the Supreme Court 

Supreme Court Justice 

Chief Justice 

justice of the peace 

midnight judges 

C. Stop-film Technique 

Useful places to stop the film and clarify 
vocabulary, issues and events include: after 
each narrative section by E. G. Marshall; 
after discussion among the Justices; before 
the Court s decision. 

* For lower level or lower ability students with 
little background in American history or law- 
related studies. 






John Marshall flanked by Associate Justices (left to right): Gabriel Duval. Joseph Story, and William Johnson. 





BACKGROUND 

In Marbury v. Madison, President Jef- 
ferson and Chief Justice Marshall con- 
fronted each other over the question of 
which of the three branches of govern- 
ment has the responsibility and authority 
to determine the constitutionality of 
laws passed by Congress. Marshall 
deliberately raised the issue of judicial 
review, and it is still debated today. The 
interpretation of the Constitution's posi- 
tion on judicial review depends on the 
intentions of the franaers of the Consti- 
tution, the legal precedents, the language 
of the Constitution and the practical 
consequences of granting review author- 
ity to each branch. 

Intentions of the Framers of the 
Constitution 

Despite Jefferson's protests over Mar- 
bury, the record shows that the great 
majority of the members of the Consti- 
tutional Convention, Federalists and 
Jeffersonians alike, supported judicial 
review by the Supreme Court. The fram- 
ers generally viewed judicial review as 
a safeguard against the excesses of a 
popularly elected legislature. 



William Marbury 



The Legal Precedents 

Precedents for judicial review can be 
found in American law as early as colo- 
nial times, when judicial review was 
practiced by the Privy Councils. Eight 
state constitutions explicitly provided 
for judicial review, and by 1803, at least 
18 decisions by state courts declared 
state laws in conflict with state consti- 
tutions. The Judiciary Act of 1789 gave 
the federal government authority to 
review state laws or state constitutional 
provisions that conflicted with the fed- 
eral Constitution. In several cases prior 
to 1803, federal circuit courts held fed- 
eral and state statutes unconstitutional. 

The Language of the Constitution 
In Marbury, the Supreme Court held 
that Section 13 of the Judiciary Act of 
1789 conflicted with Article III, 
Section 2 of the Constitution, which sets 
out the Court's jurisdiction. By ingen- 
iously declaring unconstitutional a 
section of a law which had extended its 
jurisdiction and increased its power, the 
Supreme Court unequivocally estab- 
lished its constitutional authority to 
review acts of Congress. 



The Consequences 

The Constitution established checks to 
the power of the judicial branch. Con- 
gress was given authority (Art. I, 
Sect, 8, Clause 9) to establish the lower 
federal courts and delineate their juris- 
diction. Congress exercised this power 
in the Judiciary Act of 1789, which es- 
tablished two tiers of courts beneath the 
Supreme Court: district and circuit 
courts. Congress also controls appropri- 
ations to the judiciary, but may not 
reduce judicial salaries (Art. Ill, Sect. I). 
Congress can, and has, both increased 
and decreased the number of judges and 
justices. A president's judicial appoint- 
ments are subject to confirmation by 
the Senate, and Congress may impeach 
judges and justices. This was seriously 
attempted by the Democratic- Republi- 
cans during Jefferson's first term. Con- 
gress held impeachment proceedings 
against federal Judge, Pickering and 
considered impeaching Justice Chase. 
The Jeffersonian- Democrats also exer- 
cised their power to check the judiciary 
by suspending the June and August, 
terms of the Supreme Court while Mar- 
bury was being considered. It was Jef- 
ferson's efforts to override President 
Adams' and the lame-duck Federalist 
Congress' increase in the number of fed- 
eral judges that led to Marbury v. Mad- 
ison, 

Jefferson and Marshall disagreed about 
the best way to determine the constitu- 
tionality of legislation. Jefferson's more 
populist views led him to rely on Con- 
gress, the one branch at that time whose 
members were popularly elected. Mar- 
shall's and the Court's understanding 
of the precedents and intentions of the 
authors of the Constitution led them to 
assert the independence of the Supreme 
Court in order to safeguard the rights 
provided by the Constitution. 



EQUAL 

JUSTICE 
UNDER 

"■ LAWi 



Can states tas the operations of the federal government? In 
this unpopular decision, the Supreme Court dealt a great blow to 
a claim of states' rights by striking down a state's attempt to 
interfere with a legitimate federal activity. 

The Maiyland Bank of the United States refused to buy 
stamped paper from the state of Maryland or to pay the annual 
$15J)00 :ax required by Maryland law. In 181S, the state of ^ 
Maryland sued James McCullocK the Bank's local cashier, for 
refiLsing to comply with Maryland law. The Baltimore County 
Court ruled against the Bank and the case was ultimately brought 
before the Supreme Court of the United States . 

The case presented two principle issues to the Court, ^ First, 
was the federal law that chartered the Bank in conflict with state 
tax laws,- Second, if a conflict did exist, should the federal or the 
state law take precedence? 

The Supreme Court held that since the Bank was necessary in 
order for Congress to meet its constitutional responsibilities. Con- 
gress fiad the implied power to charter a national bank. The states, 
however did not have the power to tax the federal government's 
activities, and the Maryland law could not constitutionally be 
apvlied :o the federal bank. This decision greatly restricted the 
powers of the states and engendered animosity toward the Court 




James McCulIoch 




STUDENT 
OBJECTIVES 

L To understand the Supreme Court's 
interpretation of the relative powers of 
the federal and state governments in 
McCuIIoch V. Maryland, 

2. To understand the Federalist and 
Democratic-Republican positions on 
states' rights. 

3. To gain awareness of che impact of a 
strong federal government on .Ajnerican 
life. 



BEFORE VIEWING 
Discussion Questions 

1. What were the functions of the Bank 
of the United States? Why was it estab- 
lished? 

2. Does Congress have the authority to 
charter a federal bank? 

3. The federal government taxes state 
banks; should the states tax a branch of 
a federal bank? 

4. If a state law and a federal law are in 
conflict, which should be supreme? 

5. What is the source of the federal gov- 
ernment's authority? 

6. What is the major purpose of the fed- 
eral government? Whom should it serve? 




Other Activities 

1. Discuss some contemporary issues 

that are related to local versus national 
interests (education, housing, employ- 
ment, health care, auto insurance, por- 
nography, obscenity, the death penalty, 
pollution, and drug standards). On 
each issue, consider who will be affected 
by legislation and whether the states or 
Congress should regulate these areas. 

2. Review some of the major states' 
rights issues in 19th century America: 
commerce, trade embargoes, tariffs, 
federal banks, slavery-. In each case, 
consider the consequences of allowing 
the states, rather than the federal 
government, to determine the outcome. 



Associate Justices (left to right) Gabriel Duval,- 
Joseph Story, Bushrod Washington, 
and William Johnson 



AFTER VIEWING 
Discussion Questions* 

The Language of the Constitution ( Refer 
to a copy of the Constitution) 

1. According to the preamble; who es- 
tablished the Constitution? 

Was the Constitution established by the 
people, the states, or representatives of 
the states? Did the delegates have to re- 
turn to their states and get the approval 
of the citizens? How was the Constitu- 
tion ratified in each state? 

2. What specific purposes of the Con- 
stitution does the preamble announce? 
"A more perfect union" means more per- 
fect than what? What eaa'lier contract be- 
tween the states were the delegates try- 
ing to improve upon? What does "the 
federal welfare" mean? \Miat economic 
goal is being specified? 

3. "Wliat powers does the Constitution 
give to Congress? (.Art. I) 

What is meant by the "enumerated" 
powers of Congress (An. I, Sect. 8)? 
Why were these powers listed? Why did 
the delegates fear too strong a central 
government? 

Explain the "necessary and proper" 
clause (Art. I, Sect. 8, Clause IS), which 
concludes the section on the powers of 
Congress, Referring back to Congress' 
enumerated powers, give examples of 
the legislation that might be "necessary" 
to execute Congress' responsibility to 
establish a postal service, raise and sup- 
port armies, borrow money and regulate 
interstate commerce. What institutions 
or procedures would need to be estab- 
lished in order for the federal govern- 
ment to exercise its authority in these 
areas? 

4. What does the "supremacy" clause 
mean? 

How does Article VL Clause 2 define the 
relationship between the federal and 
state governments? 

The Meaning of the Constitution 
The Federalist and Democratic-Repub- 
lican Positions 

How would Federalist and Democratic- 
Republicans answer the following ques- 
tions? What is your answer? Refer to 
the language of the Constitution. 



1. From whom does the Constitution 
get its authority? 

From the states or the people? What is 
the difference? 

2. What are the Constitution's economic 
goals? 

What are the specific economic responsi- 
bilities and powers of Congress (Art. I, 
Sect. 8)? Is a healthy. economy a specific 
objective? What kind of central govern- 
ment would be most beneficial to eco- 
nomic expansions? 

3. What were some of the economic goals 
of the delegates? What were Hamilton's 
objectives? 

What restrictions on trade and com- 
merce did the delegates hope to elimii- 
nate? What economic problems did they 
want to solve? What weaknesses of the 
Articles of Confederation were the dele- 
gates tr3dng to alleviate? 

4. WTiat are the political and social goals 
of the Constitution? 

How does the Constitution divide power 
among the federal government and the 
states and the people? What rights does 
the Constitution guarantee? To whom? 
What kind of justice does it aim to es- 
tablish? 

5. The First Congress passed the first 
ten Amendments— the Bill of Rights. 
Why was the 10th Amendment passed? 
Who was it supposed to protect? From 
whom? Why did some states only ratify 
the Constitution on the condition that a 
Bill of Rights would be added? 

The Supreme Court Decision 

1. In speaking for the unanimous Court, 
how did Chief Justice Marshall answer 
these major questions: 

From whom does the Constitution de- 
rive its authority? 

What are the major purposes of the Con- 
stitution? 

What powers were given to Congress to 
carry out its responsibilities? 
What powers are resei^ed to the states? 
Can the states limit the power and oper- 
ations of the federal government? 

2. How were these questions answered 
by the Court in McCuUoch: 

Was the federal bank's charter constitu- 
tional? For what reasons? Was the Mary- 
land tax on federal banks constitutional? 
For what reasons? 



The Impact of McCulloch v. Maryland 
1. How would the United States be dif- 
ferent today if the Supreme Court had 
upheld Maryland's right to tax the fed- 
eral government? 

How noight the federal government's 
power be limited? What federal agencies 
might not have developed? Would there 
have been a civil war? How would in- 
dividual rights and rights of minorities 
have been affected? (Consider the civil 
rights legislation of the 1950s and 
1960s and the Supreme Court decisions 
on the rights of the accused. ) 

2. \Miat are some of the long-range ef- 
fects of the federal supremacy over 
states? 

Which enumerated or implied power 
justifies the de\'elopment since Wash- 
ington's presidency of such departments 
as Health Education and Welfare. Hous- 
ing and Urban Development, Agricul- 
ture. Labor, Interior, Commerce. Trans- 
portation. Energv^? 

Which enumerated or implied powder 
justifies the development of such agen- 
cies as the Interstate Commerce Com- 
mission, National Endowments for the 
Arts and Humanities, Atomic Energy 
Commission, the Central Intelligence 
Agency, Federal Bureau of Investiga- 
tion, Federal Communications Commis- 
sion. Civil Aeronautics Board, Federal 
Trade Commission, Federal Drug Ad- 
ministration, Federal Power Commis- 
sion? 

Which other agencies have been created 
recently? 

3. Have these agencies of the federal 
government benefited the nation? 
What is the job of the government? 
Have these departments and agencies 
helped to achieve the goals of the Con- 
stitution? 

Has the federal government been effec- 
tive in ensuring "domestic tranquility" 
and promoting a healthy economy? 
Has the federal government guaranteed 
the provisions of the Bill of Rights? 
Has a rapidly growing federal bureauc- 
racy helped or hindered individual liber- 
ties or economic growth? 

4. Could local or state government bet- 
ter protect individual rights or a flour- 
ishing economy? 



* Questions in bold face type are general ques- 
tions appropriate for high school or college 
scudents. Instructors should select from the 
specific questions, m regular type according 
to Students academiclevels and backgrounds. 




Other Activities 

L States' Rights Poll 
Students, another class or the commu- 
nity could be polled to determine whether 
they feel the federal or state government 
should regulate these areas. 

Government 
Federal State 
discrimination in 

housing 

abortion — 

welfare benefits ■ — 

child custody laws 

death penalty 

environmental 

standards 

voting rights 

school desegregation 

obscenity and 

pornography 



(Analyze results in class) 

2. Chart the various agencies of the fed- 
eral government that have developed 
after 1789. Divide the class into several 
groups to study the role of the federal 
government in the areas of business, 
agriculture, the general economy, politi- 
cal power, social values, individual 
rights, interpersonal relations, employ- 
ment, education and health care. Trace 
each of these to an enumerated or im- 
plied constitutional power. 

3. Draw a chart of the federal, state and 
municipal court systems. Indicate the 
jurisdiction of each coun and the proc- 
ess of appeal from each court. 



John Marshall, the "great Chief Justice" 



4. Write to the nearest Federal Reserve • 
Bank for information on its operations. 
Discuss: the role of the Federal Reserve 
Bank in the economy; how it differs from 
a conmiercial bank. 

5. Research Alexander Hamilton's doc- 
trine of imphed powers. Research The 
Federalist and compare his views to 
those expressed in McCuUoch 

6. Compare the Articles of Confedera- 
tion and the Constitution. Compare the 
two documents' positions on what led to 
the relative powers of the states and the 
central government. 

7. Research Franklin Delano Roose- 
velt's New Deal. Compare his concept 
to that enunciated by Chief Justice John 
Marshall in McCulloch. 

8. Study the agencies of the federal gov- 
ernment. Analyze the various agencies 
that have developed after Washington's 
presidencv and their effect on American 
life. 

9. Study the role of the central govern- 
ment in modem democracies. Compare 
the division of power among the central 
and local governments in the United 
States and such coimtries as Canada, 
Mexico, Great Britain, France, and India. 
Consider how individual and local in- 
terests are protected. 

10. Research the history of the First 
and Second Bank of the United States. 
Analyze their management and contri- 
bution to the American economy. 



SUPPLEMENTAL 
AIDS* 

A. Characters 

John Marshall: fourth Chief Justice (ISOl- 
1835), appointed by John Adams 

Supreme Court Justices: Washington (ap- 
pointed by John Adams), Story, Duval 
(latter two appointed by Madison) 

Charles Pinkney: attorney for the Bank of 
the United States 

Luther Martin: attorney for the State of 
Maryland 

James McCulloch: cashier (officer) of the 
Baltimore branch of the Bank of the 
United States 

Spencer Roane: judge on Virginia's Court of 
Appeals, for states' rights 

John Brokenbrough: President of Bank of 
Virginia 

Thomas Richie: Publisher of influential Rich- 
mond Inquirer, for states' rights 

B. Vocabulary (See Glossary) 
•judicial review 

Supreme Court Justice 
Chief Justice 
constitutional 
enumerated power 
charter 
states' rights 

Bank of the United States 
•appeal 
precedent 
repeal 

unconstitutional 
implied power 
corporation 
sovereignty 
cashier 

C. Stop-film Technique 

Useful places to stop the film and clarify vo- 
cabulary, issues and events include: after 
each narrative section by E.G. Marshall; 
after discussions among the Justices ; before 
the Court's decision. 

* Lower level or lower ability students with 
little background in American history or law- 
related studies may require these supple- 
mental aids. 

John Taylor, a disciple of Thomas Jefferson. 
was suspicious of federal power 




10 



BACKGROUND 

The Political and Economic Climate 

Congressional approval of the charters 
of the First and Second Bank of the 
United States was primarily a result of 
Congress' acceptance of Hamilton's doc- 
trine of the implied powers of Congress, 
Jefferson and others, however, continued 
to oppose the Bank, Democratic-Repub- 
licans voiced opposition because they 
believed it to be an unconstitutional ex- 
tension of federal authority that reduced 
the sovereignty of the states. 
Wealthy eastern investors supported 
the Bank and a vigorous central govern- 
ment as bulwarks of a healthy national 
economy from which they could profit. 
Smaller landowTiers in the South and 
West, however, distrusted the economic 
principles of banks in general and of a 
large federal bank in particular. The less 
than illustrious record of the first two 
federal banks intensified this antagon- 
ism. 

The economic crisis follo\^ing the War of 
1812 was precipitated by inflation in 
state banks and widespread, reckless 
speculation, but the public blamed the 
Second Bank for the disaster. Public 
hostility grew as the Bank seemed to 
aggravate the very economic problems 
it was intended to alleviate. Intense lo- 
cal resentment led to the enactment of 
state statutes restricting the Bank's op- 
erations in Maryland and seven other 
southern and western states. These stat- 
utes were designed to protect the local 
interests that state legislatures felt were 
jeopardized by the Bank. 

The Constitutional Issue 

The Supreme Court faced two questions 
in McCuUoch v. Maryland: (1) does the 
Constitution give Congress power to 
charter the National Bank: and (2) was 
the Maryland tax on the Bank's opera- 
tions constitutional? The Supreme 
Court's response to these questions clar- 
ified the source of the Constitution's 
authority, the Constitution's purpose, 
the scope of Congress' authority, and 
the limits on powers reserved to the 
states. 



The Mar\-land attorneys presented the 
traditional states' rights argument that 
the Constitution, as well as the pre\ious 
Articles of Confederation, was a compact 
among sovereign states w^ho remained 
independent while delegating limited 
powders to the central government in 
order to benefit state citizens. 
Chief Justice Marshall dehvered the 
unanimous opinion of the Court. Rely- 
ing on the language of the preamble, 
Marshall wrote that, in contrast to the 
Articles of Confederation, the Constitu- 
tion does not derive its authority from 
the states, but from "the people" in 
whose name it is "ordained and estab- 
hshed", "It is the government of all: its 
powers are delegated by all; it repre- 
sents and acts for all." The federal gov- 
ernment is therefore accountable, not to 
the states, but to the citizens of the en- 
tire nation. This decision stated that 
the purpose of the Constitution— and 
by implication the federal government — 
is "to form a more perfect union" and 
"to promote the general welfare". 

Authority of Congress 

Both the Federalists and the Demo- 
cratic-Republicans argued that the 
powers of the central government should 
be limited. The Court pointed out that 
the 10th .Amendment was adopted be- 
cause of "mdespread fear that the na- 
tional government might. , . attempt to 
exercise powers which had not been 
granted". Follo\^"ing the Constitutional 
Convention, however, controversy arose 
concerning the precise limits of federal 
power. 

The Democratic- Republicans felt that a 
primary motive for the Revolution was 
England's refusal to consider local colo- 
nial interests. In the minds of the Demo- 
cratic-Repubhcans, the sovereign states 
were best able to protect the individual 
from a potentially antagonistic federal 
government. Thus, Jefferson and other 
Democratic-Republicans sought to limit 
Congress' powers to those enumerated 
in Article I, Section S. 
The Federalists beheved that a vigorous 
federal government would best serve 
their economic and social interests. 
Hamilton repeatedly and articulately 
maintained that the conclusion of Sec- 
tion 8 ("To make all laws which shall be 
necessary and proper for carr3dng into 
execution the foregoing powers") con- 
ferred additional implied powers on 
Congress. 



The Court's decision dwelt on the neces- 
sity of allowing Congress the implied 
powers advocated by Hamilton, in order 
to fulfill the purpose of the Constitution, 
The Court broadly interpreted the "nec- 
essary and proper" clause to allow Con- 
gress to choose the most expedient 
means of promoting a healthy economy. 
Chief Justice Marshall concluded that 
Congress' charter of the Bank was con- 
stitutional. 

Limits on State Powers 

The Democratic-Republicans argued 
that even if the Bank's charter were con- 
stitutional, the Constitution did not 
abridge the right of the states to raise 
revenue within their borders: nor had the 
states yielded that right in ratifying the 
Constitution. The Court agreed with 
these two arguments. 
Nevertheless, again relying on the pur- 
pose and authority of the Constitution, 
Chief Justice Marshall elaborated the 
crucial principle of the relative powers of 
the states and the federal government. 
The Supreme Court held that states 
have powers reserved to them by the 
Constitution that cannot be abridged by 
Congress. The Constitution also confers 
supreme authority to the federal govern- 
ment and its powers or operations can- 
not be limited by the states. Because the 
Maryland tax limited the operation of 
the United States Bank, it was uncon- 
stitutional. The ultimate significance of 
the Supreme Court's decision in McCul- 
loch V. Maryland was its establishment 
of federal supremacy over the states in 
areas implicitly reserved to the federal 
government by the Constitution. 



EQUAL 

JUSTICE 
UNDER 

LAWl 




John Randolph, longtime friend of 
John Marshall opposed federal control 
over slave trade 



Who has the authority to regulate commerce, the states or 
Congress? In Gibbons i\ Ogclcn the Supreme Court built the basis 
for a unified American common market 

The New York State legislature granted the firm of Livingston 
and Fulton the right to issue licenses to steamboat operators using 
state waters, Ogden, a licensee of this monopoly, sued his former 
partner Gibbons for navigating in New York waters without a New 
York license. New York courts decided in favor of Ogden, forbidding 
Gibbons from operating in New York ports or interfering with 
Ogden's monopoly. 

Gibbons appealed to the Supreme Court and argued that his 
federal license entitled him to trade between the ports of different 
states. While the Court left undefined the overlapping powers of 
the state and federal governments to regulate commerce, it 
interpreted the Constitution as (1) reserving to the states the right 
to regulate intrastate commerce and (2) asserting the supreme 
power of the federal government over the regulation of interstate 
commerce. 



GIBBONSv.OGDEN 



STUDENT 
OBJECTIVES 

1. To understand the Supreme Court's 
interpretation of the relative powers of 
Congress and the states to regulate com- 
merce. 

2. To gain awareness of the economic 
impact of the Supreme Court's decision 
in Gibbons v. Ogden, 

3. To understand the role of the Su- 
preme Court in shaping the Constitu- 
tion. 

4. To gain awareness of Chief Justice 
John Marshall's contribution to the 
judiciary. 



BEFORE VIEWING 
Discussion Questions 

(See Vocabulary List) 

1. Define commerce. (Read Art. I, 
Sect. 8, Clause 3) Does it include the 
manufacture, transportation and sale of 
goods? Which of these components are 
essential to commerce, and which are 
optional? 

2. Should a state be allowed to have a 
monopoly over certain kinds of trans- 
portation? 

3. What power should Congress have to 
control commerce within a state? 

4. How were American waterways im- 
portant to 19th century transportation? 

5. Was a prosperous economy a signifi- 
cant goal at the Constitutional Con- 
vention? 




Other Activities 

1. Review the states' rights issues rais- 
ed in McCulloch v. Maryland, the Mis- 
souri Compromise and the problem of 
slavery. 

2. Research the barriers to interstate 
commerce among the states in colonial 
times, under the Articles of Confedera- 
tion, and before 1824. 

Review the hindrances to free flow of 
goods and persons between states dur- 
ing the 17th and early 18th centuries. 
What were the reasons for these barriers? 

3. Study the development of efficient 
transportation and its importance to 
early 19th-ceni;ury trade. Evaluate the 
effects of the various state monopolies 
of transportation (in such states as New 
York, New Jersey, Ohio, Connecticut, 
Territory of Orleans) on interstate trade 
in the early ISOO's. What were the rea- 
sons for these hindrances to interstate 
commerce? 

4. Trace the flow of specific major prod- 
ucts from their states of origin to the 
major sea or river ports of the early 19th 
century. Illustrate these on a map with 
a key for the major goods transported 
and symbols for ports indicating their 
degree of commercial importance. 



Associate Justice William Johnson 



12 



AFTER VIEWING 
Discussion Questions'^ 

The Political Problem 

1. What were some of the significant 

states* rig-hts issues in the early 19th 

century? 

Wliat was the significance of the 1820 
Missouri Compromise to the problem of 
slaverv'? 

Wliat were the provisions of South Caro- 
lina's Negro Seaman Act? How did the 
act affect free Blacks? Why was the act 
passed? What did South Carolina citi- 
zens fear would happen if free Blacks 
were allowed to enter the state? On what 
grounds did Justice Johnson, himself a 
Southerner, hold the South CaroUna Act 
unconstitutional? 

What kinds of retaliatory transporta- 
tion regulation did several states enact? 
What was the response of southern and 
western states to the Supreme Court's 
decision in McCuUoch v. Maryland that 
the states could not interfere with the 
operations of a federal bank? 

2. What was the likelihood of war or 
rebellion? 

What conflicting regional problems— 
social, economic and political— existed 
in the early 19th century that were simi- 
lar to those that led to the Civil War? 

3. What were the political arguments 
for reserving to the states the power to 
control intrastate commerce? 

4. What are some of the major states' 
rights issues in American history? 
In the 19th centurv^? (the federal bank, 
interstate commerce, tariffs, slavery, the 
franchise, territories becoming states) 
In the 20th century? (civil rights in the 
areas of education, housing, employ- 
ment and public welfare ) 

The Constitutional Issue ( Refer to a copy 
of the Constitution) 

1. What does the supremacy clause of 
the United States Constitution mean 
(Art. VI, Sect. 2)? 

Do state or federal statutes have prece- 
dence? Which branch of government has 
the responsibility to determine whether 
a state law conflicts with a federal law? 

2. How does the Constitution divide 
power between the states and the federal 
government? (9th and 10th Amend- 
ments) 

To whom do the 9th and 10th Amend- 
ments reserve those rights and powers 
that are not enumerated by the Con- 
stitution? 

What are some of the specific powers of 
Congress enumerated in the Constitu- 
tion? (Art. I, Sect. 8) 



What does the Constitution say about 
commerce or transportation? (Art. I, 
Sect. 8, Clause 3) 

3. What are the powers of Congress? 
What does unplied powers of Congress 
mean? (Art. I, Sect. S, Clause 18) What 
is the meaning of the clause that states 
that Congress may '*mal^e all laws wliich 
shall be necessari^ and proper for carrv^- 
ing into execution" the powers that were 
specifically listed? 

How did Alexander Hamilton interpret 
the implied powers of Congress in 
order to establish a national bank? 
How had the Supreme Court interpreted 
the implied powers of Congress in the 
case of McCulloch v. Maryland^ 
What is Congress' enumerated or specific 
power to regulate commerce? (Art. I, 
Sect. 8, Clause 18) How specific is it? 
Is there any constitutionally enumerated 
power given to Congress to deal with 
commerce that does not cross state 
lines? 

How does the concept of implied powers 
apply to Congress' power to regulate 
commerce? 

4. How did Chief Justice Marshall inter- 
pret the concepts of implied powers as 
giving Congress the power to regulate 
not just commerce but transportation 
as well? 

Is transportation the necessary means 
for maintaining commerce? Did the com- 
merce clause have to be interpreted in 
this way? 

What pragmatic reasons did the Court 
have for construing very broadly Con- 
gress' implied power over conomerce? 
(How would commerce be affected?) 
What constitutional basis was there for 
reserving to the states the power to con- 
trol commerce that was completely in- 
ternal? (10th Amendment) 
Why were the New York steamboat 
monopolies unconstitutional? How did 
the New York statutes conflict with the 
1793 Federal Coasting Act? Which law 
had priority? Why? (Art. VI, Sect. 2) 

The Economic Impact 

L What were the economic goals of the 

authors of the Constitution? 

In the preamble to the Constitution 
what does the phrase, '*the public wel- 
fare" refer to? What were the economic 
weaknesses of the Articles of Confedera- 
tion that the delegates to the Conven- ' 
tion tried to remedy? 



2. What was the economic situation in 
the early 19th century in relation to 

transportation? 

What were the most efficient and heavily 
used routes for commerce between and 
\nthin the states? Were ships of each 
state totally free to travel to and through 
other states? WTiat kinds of measures 
did states resort to in order to protect 
their ovm commerce? What was the ef- 
fect of retaliatory trade barriers on 
.-American commerce? 

3. What might have happened to the 
.American economy if the Court had not 
interpreted the commerce clause so 
broadly? 

Would interstate commerce have de- 
\'eloped as rapidly as it did? 
Would the development of steamboat, 
railroad, highway and other transporta- 
tion have been encouraged? 
Hypothesize the kinds of trade barriers 
and obstacles that could have prolifer- 
ated, (Each state could have its o\^-n rail- 
road, airhne and trucking company that 
could not cross into another state. ) What 
would have been their effect on the 
American economy? 
4. What are some of the long range 
economic consequences of Gibbons v. 
Ogdeni 

(Was the decision, as some have claimed, 
the "emancipation proclamation" of 
American commerce?) 
What forms of transportation and in- 
terstate commerce have been aided by a 
broad interpretation of the commerce 
clause? (shipping, railroads, airlines, 
trucking, the automotive industry, tour- 
ism, telegraph, telephone, interstate 
pipelines for oil, gas, coal, water, etc.) 
Are there some detrimental effects of 
the rapid expansion or "explosive ex- 
pansion" of American commerce? Does 
economic growh unnecessarily damage 
the environment or the quality of Ameri- 
can life —or offend the values of some 
Americans? 



Questions in bold face type are general ques- 
:ions appropriace for high school or college 
scudenrs. Instructors should select from the 
more specific questions in regular type ac- 
cording to the students' academic levels and 
backgrounds. 



Other Activities 

1. Set up a panel to discuss the impact 
of the Supreme Court's interpretation of 
the conomerce clause. The panel may in- 
clude an economist, a corporate lawyer, 
a consumer advocate, and someone from 
a group whose values are opposed to 
materialistic goals or economic progress. 

2. Interstate commerce inventory. 
Each student can take half an hour to 
list each item in his or her home which 
has crossed state lines at some stage of 
its production, sale or delivery. Class 
discussion can focus on the all-encom- 
passing range of interstate commerce, 
and its effect on daily life. 

3. Divide the class into three groups to 
study the Interstate Commerce Com- 
mission regulations on trucking, air- 
lines and railroads. The groups can 
report back and communicate their 
findings to each other. 

Jury 




SUPPLEMENTAL 
AIDS* 

A. Characters 

John Manshall: fourth Chief Justice (1801- 
18351 appointed by John Adams, 

Justices: Washington, Story, Johnson. Duval 
(last three appointed by Jefferson). 

Daniel Webster: attorney for Gibbons, lead- 
ing constitutional lawyer, New Englander. 

Thomas Emmet: attorney for Ogden, 

John Riindolph: Virginian, for states' rights, 
friend of John Marshall. 

Livingston and Fulton: hold monopoly from 
state of New York to operate steamboats 
in New York state. 

Thomas Gibbons: operated steamboat be- 
tween New Jersey and New York without 
New York license. 

Aaron Ogden: purchased licenses from Liv- 
ingston for operating steamboat between 
New York and Ne\s' Jersey. 

B. Vocabulary (See Glossary) 
•judicial review 

The Supreme Court 

Supreme Court Justices 

Chief Justice 

appeal 

precedent 
•constitutional 

unconstitutional 

enumerated po^^-er 

implied power 
•states' rights/sovereignty 

insurgents ■ 
•commerce 

interstate 

intrastate 

market 

monopoly 

coasting trade 

navigation 

C. Stop-film Technique 
Useful places to stop the film and clarify vo- 
cabular\', issues and events include; after 
each narrative section by E.G. Marshall; 
after discussions among the Justices; before 
the Court's decision. 

* Lower level or lower ability students with 
little background in American history or law- 
related studies may require these supple- 
mental aids. 




BACKGROUND 

In Gibbons v. Ogden the Supreme Court 
of the United States once again became 
the arbiter of the respective powers of 
the federal government and the states. 
At issue was the extent to which the in- 
dividual states and the federal govern- 
ment could control and regulate com- 
merce. The trial's outcome had signifi- 
cant political, constitutional and eco- 
nomic ramifications that are central to 
American society today. 

The Political Problem 

The Supreme Court has repeatedly dealt 
with states' rights controversies. Threats 
of secession and nullification were used 
from the time of the Articles of Confed- 
eration until the Civil War, In the 1820 s, 
the political situation was particularly 
volatile. The Missouri Compromise 
brought the growing problem of slavery 
to the surface. 

In addition to the incipient trade war 
between several states, controversy 
arose over a decision made by Supreme 
Court Justice Johnson while he presided 
over the Federal Circuit Court for South 
Carolina. Justice Johnson, himself a 
Southerner and -a Jefferson appointee, 
ruled that South Carolina's Negro Sea- 
man Act, which restricted free Blacks in 
the state, was unconstitutional because 
it was a regulation of interstate com- 
merce in conflict with the commerce 
clause of the Constitution. 
Justice Johnson's decision in South 
Carolina generated threats of dissolu- 
tion of the tmion. To Southerners such 
as the vocal Virginian John Randolph, 
there was a cle,ar connection between 
commerce and slavery: slaves were prop- 
erty and southern commerce depended 
on the slave trade. If Congress had po^er 
to regulate all commerce, it could even- 
tually control slavery. Randolph and 
other Southerners, including Supreme 
Court Justice Duval, accurately pre- 
dicted that extension of federal power 
over slavery would lead to rebellion. 

The Constitutional Issue 

The Supreme Court's decision in Gibbons 
v. Ogden centered on three major con- 
stitutional questions: (1) what does the 
term "commerce" include; (2) are the 
federal and state governments' powers 
to regulate commerce exclusive, con- 
current or overlapping; (3 ) did New York 
monopoly law conflict with federal law? 



Associate Justice William Johnson 



14 




Associate Justice Bushrod Washington (left), Cliief Justice John Marshall with Associate Justice Joseph Stor\' 



In its decision, the Court broadly inter- 
preted commerce :o include not only 
the buying and selling of goods, but 
their transportation as well. There is 
evidence thai the framers of the Consti- 
tution intended that the federal govern- 
ment regulate interstate transportation 
of goods. The strongest reason for a 
broad interpretation of commerce, how- 
ever, is the pragmatic argument that 
such a view of commerce was necessary 
to foster the economy of the United 
States. 

The most controversial question of in- 
terpretation in Gibbons v. Ogden con- 
cerned the relative federal and state 
powers under the commerce clause (Art. 
I, Sect. 8, Clause 3). New York's highly 
respected jurist Chancellor Kent ruled 
that regulation of commerce within state 
borders was the exclusive. domain of the 
states. The Supreme Court disagreed, 
and carefully reiterated the doctrine of 
implied powers stated in McCulloch: 
Congress is empowered (by -\rt. I, Sect. 
8) to pass laws that are "necessary and 
proper" to the execution of its enumer- 
ated constitution^, responsibilities. Ac- 
cording to the Court, effective regulation 
of interstate commerce requires control 
of transportation going through states 
as well as between states. In addition, 
this means for controlling interstate 
commerce was "necessary and proper" 
to carry out the framers' intention to 
create a prosperous economy. 



Chief Justice Marshall was careful not 
to annihilate states" rights while expand- 
ing the power of the federal government. 
His decision asserts the federal govern- 
ment's supreme authority over regula- 
tion of interstate commerce, but explic- 
itly reserves to the states the power to 
regulate intrastate commerce. The deci- 
sion, however, left an undefined area 
where state and federal regulatory 
powers overlap. In a series of cases 
spanning more than a century and a 
half, the Supreme Court has refined the 
interpretation of the law governing the 
area of concurrent state and federal 
authority over the regulation of 
conmaerce. 

The final constitutional question focused 
on the effect of a conflict between 
New York and federal laws. Chancellor 
Kent of New York did not perceive a 
conflict between the New York and 
federal statutes because he interpreted 
the Federal Coasting Act very narrowly. 
Chief Justice Marshall, however, inter- 
preted the relatively limited provisions 
of this act of 1793 very broadly. He 
argued that the Act conferred the gen- 
eral right to engage in the coasting trade 
and to enter navigable waters of the 
United States, Because the federal and 
state statutes conflicted, the supremacy 
clause of the Constitution (Art. VI, ■ 
Sec. 2) required that the federal law 
prevail. The New York law was there- 
fore declared void. This decision estab- 
lished the constitutional role of the 
Supreme Court as the final arbiter of 
state and federal power to regulate 
commerce. 



The Economic Impact 

In spite of opposition by states' rights 
advocates. Gibbons v. Ogden was one of 
Chief Justice Marshall's most popular 
opinions because of the immediate 
positive economic impact that the de- 
struction of state trade monopohes had 
on the nation. The decision averted the 
economic warfare brewing between 
states. Many states authorized trade 
and transportation monopolies in order 
to stimulate business in their states. 
These retaliatory statutes limited inter- 
state trade and stifled the national 
economy. 

The Court's decision facilitated the 
creation of the unified market that was 
the vision of many of the delegates to 
the Constitutional Convention. Con- 
gress, though it did not fully respond 
until later in the century, was encour- 
aged to appropriate funds for the im- 
provement of trade routes through the 
states. The steamboat, together with 
later developed means of transportation, 
directly stimulated growth. Twentieth 
century Supreme Court decisions that 
relied on Gibbons' interpretation of the 
commerce clause led to a great expan- 
sion of Congress' authority to regulate 
commerce. The modem free flow of 
commerce in the American economy's 
enormous national market is the legacy 
of Gibbons v. Ogden, 

EQUAL 

JUSTICE 
UNDER 

LAWt 




Burr's jail escort 



Should the President of the United States have to appear in 
court when a judge requires him to be a witness? Is an accused ^ 
traitor entitled to all fair trial rights guaranteed by the Constitution ? 
These were the controversial issues in the dramatic trial of Aaron 

Burr. 

United States v. Burr was not a Supreme Court case. In 1807, 
Aaron Burr was tried for treason in the Federal Circuit Court in 
Richmond, Virginia. Although the actual evidence against Burr was 
tenuous, in an address to Congress Jefferson declared Burr guilty. 
In a dramatic maneuver during the grand jujy hearings, over which 
Chief Justice John Marshall and District Judge Cyrus Griffin pre- 
sided. Burr requested the court to subpoena President Jefferson so 
that Burr could view the evidence tliat would be used against him. 
Because Chief Justice Marshall insisted on satisfying due process 
requirements throughout the proceedings, he once again found him- 
self in opposition to President Jefferson who insisted both on the 
conviction of Burr and protection of presidential privilege. ^ The 
confrontation produced dramatic results: a precedent for limiting 
executive privilege was set: the right of unpopular defendants to a 
fair trial was established; the constitutional definition of treason 
was upheld; and Chief Justice Marshall was hanged in effigy. 



UNITED STATESvEURR 



STUDENT 
OBJECTIVES: 

L To gain awareness of due process of 
law— the procedural safeguards for a 
fair trial guaranteed by the United States 
Constitution. 

2. To understand the precedents set by 
Chief Justice John Marshall for applying 
due process requirements even in highly 
controversial political trials. 

3. To understand that every citizen is 
bound by the law of the land, whatever 
his social or political position. 

4. To gain awareness of the uses and 
limits of executive privilege. 

5. To understand the concept of treason 
and the reasons why the English and 
American definitions differ. 

6. To better understand the philoso- 
phies, motives and values of Marshall, 
Jefferson and Burr. 



BEFORE VIEWING 
Discussion Questions 

The LegsJ Issues 

(See Vocabulary List) 

1. What is due process of law? 

What articles in the United States Con- 
stitution refer to due process? 
What procedural safeguards for a fair 
trial does the Constitution guarantee? 
What do the 5th, 6th and 14th Amend- 
ments mean? 

2. What is a grand jury? 

What is its purpose? How does it foster 
due process? What is the difference be- 
tween a grand jury- and a petit jurv'? 

3. What is a subpoena? 

Who can issue one? What is its purpose? 
Whomustcomply with subpoenas? What 
is the penalty for not complying? 

4. Should due process guarantees apply 
to cases of treason or other crimes against 
the government? 

Is it possible to distinguish between 
cases requiring due process and those 
not requiring it? Should a person's as- 
sumed guilt, a revolution, war, or danger 
of war make a difference? Have wars or 
threats of war, such as those which arose 
during the Presidency of John Adams, 
the cold war in the 1950s or the Viet- 



nam conflict in the 1960s, affected the 
treatment of people who disagreed with 
the government? 

5. What is the purpose of bail? 

Are there cases in which bail should not 
be granted? Does the Constitution con- 
sider bail? What does the Sth Amend- 
ment say about bail? 

6. How can individuals who oppose 
government policies protect themselves? 
How were the Alien and Sedition Acts 
of Adams' Presidency and of the World 
War I era applied? 

7. Trace Burr s career through his var- 
ious attempts for power. How did Burr 
almost become President in 1800? 

In what ways did he contribute to Jef- 
ferson's presidential campaign in 1800? 
What reasons did Burr have for behev- 
ing that Jefferson had cheated him out 
of the presidency? Did Burr allow the 
lame-duck Federalist Congress to ma- 
nipulate him? Why did Jefferson not 
want Burr as his vice-presidential candi- 
date in the 1804 election? 



16 



AFTER VIEWING 
Discussion Questions* 

The Conflicting Evidence 
1. What stories about Burr's military 
and political ambitions led to his arrest 
for treason in 1807? How credible were 
the sources of these stories? 
According to Jefferson and Hay, what 
was Burr plot:ing? ^^^lat evidence was 
General Wilkinson's letter said to con- 
tain? Is a copy of a letter convincing 
evidence? What did some of the men 
who met on Blennerhasset's Island think 
they were going to do? 
What was Burr's defense? 
What were some of Burr's other possi- 
ble plans? 

2. WTiat did Chief Justice Marshall 
seem to believe about this evidence? 

3. If President Jefferson had solid evi- 
dence against Burr, why did he never 
produce the original of Wilkinson s letter? 
Why is Eaton's testimony suspect? The 
records indicate that Burr knew that 
Wilkinson was in the pay of the Spanish 
government. Do you think Jefferson 
knew of this? If he did, would he have 
used Wilkinson's testimony anyway? 
There is evidence that the government 
granted Eaton immunity. Is this an 
ethical procedure? Are grants of immun- 
ity in exchange for testimony against 
former accomplices unusual? 

The Legal Issues 
1. .What is treason? 

How does English law define treason? 
American law? How does Article III, 
Section 3 of the Constitution define trea- 
son? Why were the ^mters of the Con- 
stitution careful to change the British 
definition of treason? How was the Brit- 
ish common-law definition of treason 
used against .Americans? Against dis- 
sidents in England? How had "lettres 
de cachet" been used in France to silence 
opposition to the government? 
How did Chief Justice Marshall define 
treason in the Bollman case? What prec- 
edent did he cite? How did he rule in 
the Burr trial? Why did he change his 
mind? What legal principles did he in- 
tend to uphold? Who did he feel the 
courts are required to protect? If Wash- 
ington had been President, would Mar- 
shall have changed hi3 ruling? Would 
he have ruled differently if the country- 
had been at war? 



2. What were some of Jefferson's politi- 
cal reasons for opposing Burr? 

What was the major national security 
problem in the United States? What was 
the European political situation? Was 
war with England or Spain likely? How 
should this possibility have affected 
Jefferson's treatment of Burr? Should 
these national security concerns have 
affected Marshall's rulings? 

3. To what extent did Marshall's and 
Jefferson's personal feelings influence 
their decisions during the Burr trial? 
How did they differ politically? What 
were some of their previous confronta- 
tions? (the 1800 and 1804 elections, 
Marbury v. Madison, the Mazzei let- 
ter.) Are there indications that their 
feelings were intense? Did Marshall need 
to speak of "the hand of malignity"? 
Was it necessary for Jefferson to public- 
ly declare Burr guilty before the trial? 
Was it ethical for Jefferson to offer money 
to those who would testify against Burr? 

4. What were Chief Justice Marshall's 
intentions? 

Considering Burr's unpopularity with 
Congress and the President, and the ex- 
pected negative public reaction to his 
release, could Chief Justice Marshall 
expect to gain an3^hing by insisting on 
due process? 

What did Marshall and the federal courts 
stand to lose by protecting Burr? 
Considering Marshall's carefully plan- 
ned strategy in Mariury v. Madison for 
strengthening the Supreme Court while 
apparently giving in to the ruling Demo- 
cratic-Republicans, was it politically 
\vise to protect Burr? 



Chief Justice John Marshall in 
'The Trial of Aaron Burr" 




The Consequences 

1. What were some of the consequences 
of the Burr trial? 

What would have happened to the pres- 
tige, legitimacy and effectiveness of the 
Supreme Court if Marshall had insisted 
on Jefferson's appearance and been ig- 
nored? 

What would have happened to the pres- 
tige, legitimacy and effectiveness of the 
Presidency if Marshall had insisted on 
the exact terms of the subpoena and 
Jefferson had been arrested? 
Who gained by the compromise? How 
did the compromise reinforce the balance 
of power? 

What constitutional principle was as- 
serted regarding the rights of an individ- 
ual, even one who is generalh" believed , 
to be guilty? 

What does the Burr trial demonstrate 
about the role of American courts in pro- 
tecting the individual against a power- 
ful central government? 

2. How does the Burr trial demonstrate 
"equal justice imder law"— that no man 
or woman is above the law? 

Why did Jefferson feel that he had laid 
a trap for Marshall? 
How does Article HI, Section 3 apply to 
the Burr trial? What two points must 
the prosecution have proven to convict. 
Burr? Are there circunostances, such as 
times of war, when these two points 
should not apply? 

3. What is a grand jury? 

What is the purpose of the grand jury? 
Who sits on a grand jury? How does it 
operate? What decisions can it make? 
What are the consequences of those 
decisions? In w^hat way does the grand 
jury protect the individual's right to due 
process? What might happen ^rithout a 
grand jury? 

The American grand jury was based on 
the Enghsh model, but in 1933, England 
eliminated the grand jury. What is the 
future of the grand juiy in the United 
States? What should it be? 

4. What is the difference between trea- 
son and the high misdemeanor for which 
Burr was indicted? 

What was the specific charge in each 
indictment? 



Questions in bold face type. are general ques- 
tions appropriate for students on any level. 
The questions which follow E^e.more specific 
and may be selected accordin^l' to the stu- 
dents' academic level. 



Other Activities 

L Set up, a debate in which one side 
argues for the American Constitution's 
definition of treason and the other for 
the coninion-lavv definition. 

2. Develop a poll concerning presiden- 
tial privilege. Administer it to another 
class, the school or community mem- 
bers. Analyze the results in terms of how 
well the respondents understand the law 
on these issues. People may be asked: 
Does the President of the United States 
have to go to coun if he is subpoenaed? 
If the President of the United States 
does not go to court when subpoenaed, 
should he be. put in jail? 

3. Draw a map of the United States us- 
ing a color or pattern code to indicate 
how territories were added: by purchase, 
annexation, war. negotiations, etc. 

4. Reseajch the Burr trial. Write the let- 
ter which General Wilkinson might have 
sent to Jefferson. Consider what the let- 
ter might have said that made Jefferson 
reluctant to produce it. Review the re- 
quirements for due process in a criminal 
proceeding. Hold a mock trial or mock 
grand jury hearing using the new letter 
as evidence. The instructor or a resource 
person such as a lawyer or judge could 
take the role of Chief Justice Marshall. 
Students can take the roles of defendant, 
the several attorneys and witnesses. To 
create more interest, someone taking 
the role of President Jefferson might 
also take the stand. The rest of the class 
could be the jurj-. 

5. Groups of students can research fa- 
mous English treason trials, such as 
those of Sir Thomas More; Anne Boleyn; 
Lady Jane Grey; Mary, Queen of Scots; 
Sir Walter Raleigh; and the American 
trials of Cramer and Haupt in 1945 and 
1947. In a panel discussion, students can 
report on each of :he trials and compare 
them with the precedents for due process 
that John Marshall set in Burr's trial. 
Students not on the panel can ask ques- 
tions about due process: grand jury 
procedure, grand and petit jury selec- 
tion, presence of attorneys, rules of 
evidence, right against self-incrimina- 
tion and use of witnesses. 



6. Research the uses and misuses of 
presidential privilege. Study the ways in 
which Presidents Wasliington, Adams, 
Jefferson, Lincoln, the two Roosevelts, 
Kennedy and Nixon used executive 
pri\'ilege. 

7. Research the grand jury in the United 
States. Wliat are its legal and political 
functions? Analyze the procedures used 
and their purposes. Pay particular at- 
tention to jury selection, the use of evi- 
dence and the presence of attorneys. 
How has the grand jury evolved since 
the early years of the Republic? Do all 
states have grand juries? Is the grand 
jury an institution which still fosters 
due process? What reforms have been 
suggested? 

8. Research bail in the United States. 
Analyze the use of bail in terms of how it 
is actually used and how it should be 
used. Review recent reforms and sug- 
gestions for reform. 

9. Research the ethical dilemma of trea- 
son. Study the political and ethical con- 
cept of treason. For example, if revolu- 
tionaries win, then "loyalists" are trai- 
tors; but if a revolution fails, the revolu- 
tionaries are traitors. Can such poHtical 
problems of power be partially resolved 
by legal means such as insistence on due 
process? How did Lincoln intend to re- 
solve similar problems after the Civil 
War? 

10. Research the legal problem of treason. 
Study English treason law, bills of at- 
tainder and French "lettres de cachet", 
and their political uses. Compare these 
practices with Marshall's interpretation 
of the intent of the f ramers of the United 
States Constitution. 

IL Research separatism. Study separa- 
tist movements in such countries as 
Canada (Quebec), Belgium (Walloons), 
Ireland (Northern Ireland), Britain 
(Wales, Scotland), Spain (Basques), 
Italy (South IVrol), France (Brittany), 
the United States and other countries. 
Compare the motives and interests, and 
results of these movements. 
12- Research United States expansion. 
Trace the ways the United States ac- 
quired territory from native American 
Indians and from foreign powers. 



SUPPLEMENTAL 
AIDS* 

A. Characters 

Thomas Jefferson: third President, Demo- 
cratic-Republican 
John Adams: second President, Federalist 
John Marshall: fourth Chief Justice (ISOI- 
1835) appointed by John Adams, presides 
in Burr trial 
Cyrus Griffin: Judge, district court in Rich- 
mond, Virginia, presides in Burr trial. 
Aaron Burr: former Vice President under Jef- 
ferson 
William Branch Giles: Democratic-Republi- 
can Congressman from Virginia 
George Hays: District Attorney, prosecutor 
John Wickham: defense attorney for Bun- 
General Eaton: \ritness for the prosecution 
Blennerhasset: owner of island in Virginia on 

the Ohio River 
Bushrod Washington: Supreme Court Jus- 
tice, a Virginian, nephew of George V\'ash- 
ingtbn and a friend of Marshall's 

B. Vocabulary (see Glossary): 
•The Supreme Court 

Federal Circuit Court 

Chief Justice 
•common law 

constitutional 

unconstitutional 

due process 
•expansionism 

separatism 

Democratic-Republican 

Federalist 
•district attorney 

defense attorney 

prosecuting attorney 

grand jury 

jurisdiction 

Attorney General 

indictment 

precedent 

principal (in a crime) 

accessory (in a crime) 

subpoena 
•high misdemeanor 

treason 

overt fact 

levying war 

sedition 

C. Stop- Film Technique 

Useful places to stop the film and clarify vo- 
cabulary, issues, and events include: after 
each narrative section by E.G. Marshall; and 
before the Court's decision. 



For lower level or lower ability students with 
little background in American history or law- 
related studies. 



18 




BACKGROUND 

The Judiciary Act of 1802 required Su- 
preme Court Justices to sen^e on circuit 
courts, so Chief Justice Marshall and 
Judge Cyrus Griffin presided over the 
Federal Circuit Court in which Aaron 
Burr was tried for treason (levying war 
against the United States) and high mis- 
demeanor (planning a military campaign 
against a country with which the United 
States is not at war) in 1807. These cir- 
cumstances created a three-way struggle 
between Marshall, Jefferson and Burr 
that was rooted in their philosophical 
differences and personal animosities. 

Burr 

Burr's differences with Jefferson began in 
the 1800 presidential election. Burr led 
the New York Democratic- Republican 
party, and even though the party in- 
tended that he be Vice President, he was 
chosen as a presidential candidate. Be- 
fore the 12th Amendment electors voted 
for two presidential candidates, and 
whoever came in second became Vice 
President. Burr's success exceeded ex- 
pectations and he and Jefferson received 
an equal number of votes. The election 
was thrown into the House of Repre- 
sentatives, presided over by Jefferson, 
Adaiiis' vice president. The lame-duck 
Federalist members tried to maneuver 
Burr, who they thought more pliable 
than Jefferson, into the Presidency. 
Other Federalists, Hamilton among 
them, helped to abort the attempt, and 
Jefferson acquired an antagonistic Vice 
President and a daring political foe. 
Burr s loss of the Presidency appears to 
have shaped his ambitions the rest of his 
life; his career became a series of imagi- 
native grasps for gloiy. Burr's dominant 
fantasy seemed to be that if he could 
not rule all the United States he would 
rule a part of it. When Jefferson reject- 
ed him for the Vice Presidency in 1804, 
Burr decided to run for governor of New 
York, aiming ultimately to be the mili- 
tary leader of the Northeast. Burr con- 
spired with senators from New York and 
New England to secede from the- union. 
HamQton's opposition to Burr's scheme 
led to the duel that ended Hamilton's 
life and Burr's political career in the 
East. 



Aaron Burr 



Burr gave up hope of capturing the 
Northeast and fled West to conquer new 
lands. As a skilled opportunist, Burr ex- 
ploited two strains of thought in Ameri- 
can culture that have existed in some 
form throughout the country's history: 
expansionism and separatism. 
Separatist threats of secession were 
used by states' rights and regional advo- 
cates since the Constitutional Conven- 
tion, and generally met heavy opposi- 
tion. Expansionist proposals encounter- 
ed less resistance; and arguably, Burr's 
ingenious defense that he was settling 
new territories, anticipated the exploits 
of Andrew Jackson in Florida and Sam 
Houston in Texas, WTiile some sober 
Americans may have agreed with Burr's 
separatist or expansionist plans, his 
conspiracy or attempted conspiracy 
with the Spanish and English govern- 
ments verges on treason. 
Today, Burr's real intentions seem 
vague and contradictory- ; perhaps even 
Burr himself was unsure of them. Let- 
ters written by Burr and the English 
and Spanish ambassadors suggest that 
he expected to be offered the presidency 
of New Orleans when it declared its in- 
dependence. Then Burr would either 
invade Mexico under some pretext, or 
await what he thought was imminent 
war with Spain, or even create a pre- 
text for such a war. Burr might have 
ultimately planned to lead a revolution 
in Mexico and have himself declared 
emperor. When these ambitious schemes 
failed to materialize, he might have 
clutched at the legitimate possibility 
that became his defense at trial: leading 
a great colonizing expedition. 




Jefferson 

Political considerarions predominantly 
motivated Jefferson's conduct before 
and during the trial. Jefferson felt that 
as President he carried the burden of 
national security. He beheved that a 
show of strength was required to con- 
front internal enemies like Burr, as well 
as external enemies. In both of his 
terms, Jefferson was engaged in keeping 
America free from entanglement in the 
Napoleonic wars. He was acutely fearful 
that Britain might consider America 
weak, and might direct all of the British 
naval power to attack the new Republic 
and regain her lost colony. Spain was 
apparently prepared to extend her New 
World territories northward at any time. 
Napoleon, also imperialistically ambi- 
tious, was not to be trusted. 
In the confrontation between the Presi- 
dency and the courts, Jefferson feared 
the loss of executi\'e power which might 
result by either \-ielding to a subpoena 
or being arrested. The compromise he 
suggested was to the advantage of both 
the judicial and executive branches. But. 
Jefferson was well aware of the dilenmia 
in which he had placed the Chief Justice: 
if Burr were acquitted, Marshall would 
be vilified; if Burr were convicted, Jeffer- 
son's improper pretrial declaration of 
Burr's guilt would be vindicated. 

Marshall 

Marshall and Jefferson had deep-rooted 
philosophical differences. They were 
members of opposing political parties 
with often irreconcilable positions, and 
in the first decades of the Republic the 
two men disagreed over several presi- 
dential elections and the Mazzei letter, 
in which Jefferson had maligned George 
Washington. Furthermore, the naturally 
opposing constitutional roles of the two 
men required them to act as checks 
upon each other, creating repeated con- 
frontations that could only reinforce 
any mutual antagonisms. Neverthe- 
less, Marshall had no reason to favor 
Burr, since Burr had killed Hamilton, a 
Federalist Marshall liked and respected. 
Neither the judiciary nor Marshall could 
gain by defending an unpopular person. 
In addition, by reversing his previous 
position on treason in the Swartwout- 
Bollman case, Marshall made himself 
vulnerable to the criticism of inconsis- 



tency. Marshall's insistence upon the 
subpoena of Jefferson, combined with 
his willingness to compromise, displays 
his reliance on the Constitution as well 
as his understanding of political realities 
and of the negative consequences that 
inflexibility could have on the Supreme 
Court. Marshall's other decisions indi- 
cate that he carefully avoided jeopardiz- 
ing the independence of the judiciar\\ 
Marshall seemed to perceive the role of 
the judiciary as one of elevating Burr's 
trial from a personal and political strug- 
gle to the legal problem of interpreting 
the Constitution. 

Legal Issues 

The problem of constitutional interpreta- 
'tion encompassed- several issues. The 
first issue arose when Burr sought to 
subpoena the President during the grand 
jur\' proceedings. Marshall's significant 
ruling established that no man, even the 
President, is above the law. This prece- 
dent was cited repeatedly in United 
States V. Nixon in 1974. 
The arguments Jefferson offered for not 
fully compljong with the subpoena have 
been used by other presidents, including 
George Washington and Richard Nixon, 
These arguments included the Presi- 
dent's executive privilege and his duty 
to preserve national security by main- 
taining the confidentiality of certain 
negotiations. Jefferson seriously feared 
arrest, however, and assumed that he 
would be subject to arrest if he did not 
comply with the subpoena. Jefferson's 
partial compliance with the subpoena re- 
sulted in a compromise that dramatizes 
the political realities of the time and the 
constitutional basis for checks and 
balances. 

The second major legal issue was whether 
England's common-law or America's 
constitutional definition of treason 
would be applied in the case. The de- 
fense cited Marshall's previous decision 
in Swartwout-Bollman, which accepted 
the common-law definition of treason 
used by Britain and the original colonies : 
In treason all are principals, what one 
does through another he does himself. 



Thomas Jefferson 



20 




The. United States Consritution, how- 
ever, was developed by men who, 
because of their knowledge of the arbi- 
trary and bloody British abuse of the 
common-law definition of treason, dis- 
trusted and feared a tyrannical govern- 
ment. They \\Tote: 

Treason against the L^nited States 
shall consist only in levying war 
against them, or in adhering to their 
enemies, gi\ing them aid and comfort. 
No person shall be con\'icted of trea- 
son unless on the testimony of two 
witnesses to the same overt act, or on 
confession in open courr. 
(Art. Ill, Sect. 3) 
Chief Justice Marshall's decision in 
United States v. Burr suggests that he 
accepted the defense's contention that 
strict application of the United States 



Constitution's definition of treason is 
the only one that can legally and ethi- 
cally be used in American courts. 
The third issue, which has possibly the 
most important ramifications, is the in- 
terpretation of due process as it apphes 
to every step in the criminal justice 
process; from bail, jury selection, and 
rules of evidence to the final charge to 
the jury. The political context of the 
Burr trial amplified this issue. Osten- 
sibly, the case precipitated conflicts be- 
tween Jefferson and Marshall. But the 
two actual confrontations were between 
the President and the law, and between 
the national government and a citizen 
accused of betraying his nation. As 
judge interpreting the law, Chief Justice 
Marshall was thrust into the uncomfor- 
table position of arbiter of these dis- 



The Chief Justice burned in effiev 



putes. The decision was intended ro 
guarantee due process to all citizens 
even if the government views them as 
traitors. In the Burr trial, Chief Justice 
Marshall applied the spirit of equal and 
orderly go\'emment that is embodied 
in the 5th and 6th Amendments to the 
United States Constitution. 



EQUAL 

JUSTICE 
UNDER 

LAWt 



21 



ACTIVITIES TO 
CONCLUDE THE 
FILM SERIES 

1. Discuss John Marshall's career as 

Chief Justice, including the major cases 
(Marbnry u. Madison, United States v. 
Burr, McCalloch v, Maryland, Dart- 
mouth College V. Woodward, and G/6- 
60715 u. Ogden). Consider how Marshall 
influenced the function, prestige and 
authority of the Supreme Court. 

2. Discuss how the Supreme Court 
shaped the Constitution during Mar- 
shall's tenure as Chief Justice. How did 
these major decisions influence the qual- 
ity of American life over the long run 
(the nature of the federal government 
and its impact on citizens, the criminal 
justice process, the economy, presiden- 
tial power)? 

3. Consider the role of the Supreme Court 
in American society. (Consider the same 
aspects of society as in #2.) 

4. Simulate a Constitutional Conven- 
tion focustag on the issues of judicial 
review of federal statutes, judicial re- 
view of state statutes, the definition of 
treason, due process, the unplied powers 
of Congress, a federal bank, the division 
of state and federal powers, individual 
rights and commerce. The roles of dele- 
gates to the Convention may be simu- 
lated, or students may determine their 
own position on these issues and argue 
for them in committees. A plenary ses- 
sion may be held to vote on those articles 
passed in committee. A two-thirds vote 
will make it part of a new sunulated con- 
stitution. 

5. Value strategy: Opinion Poll Rank 
from 1 (most important) to 10 (least 
important) those constitutional goals 
you feel are most essential to a demo- 
cratic society. 

__judicial review 
_Jair trial 

a strong federal government 

strong state governments 

—individual rights 
_fche right to vote 
_the right to bear arms 
_a vigorous economy 
_^an independent judiciary 
_J;he right to property 
Another class, the school or commu- 
nity may be polled. Analyze results in 
class. 



RESOURCES 

HIGH SCHOOL 
BIBLIOGRAPHY 

Supreme Court Decisions 

Acheson, Patricia C. The Supreme Court: 

Americas Judicial Heritage. 1961 
Convin, Edward S. John Marshall and the 

Constitution; A Chronicle of the Supreme 

Court, 1919 
Beard, Charles A. The Supreme Court and the 

Constilutiom 19(^2 
Findlay, Bruce A. and Esther B, Your Rugged 

Constitution; how America's house of 

freedom is planned and built, 2nd rev. ed., 

1969 
Flynn, James J. Famous Justices of the 

''Supreme Court, 19H8 
Fribourg, Marjorie G. The Supreme Court in 

American History: ten great decisions; the 

people, the times' and the issues, 1965 
Garraty, John A., ed. Quarrels That Have 

Shaped the Constitution, 1964 
Habenstreit. Barbara. Oianging America 

and the Supreme Court, 1970 
Johnson, Allen. Jefferson and His Colleagues; 

a chronicle of the Virginia dynasty, 1921 
Kelly, Alfred H. and Winfred A. Harbison. 

The American Constitution; its origins and 

development, 4th ed. 1970 
Koch, Adrienne, ed. Jefferson, 1971 
Severn, Bill. John Marshall; The Man Who 

Made the Court Supreme, 1969 
Smelser, Marshall' The Democratic Republic, 

1801-18X5, 1968 
Swisher, Carl B. The Supreme Court in 

Modem Role, rev. ed. 1965 

Jeffersouians and Federalists 

Bowers, Claude G. Jefferson in Power; the 

death struggle of the Federalists, 1936 
Chidsey, Donald B, Mr, Hamilton and Mr. 

Jefferson, 1975 
Corwin, Edward S. The President; Office and 

powers 1757-1957, 4th rev. ed., 1957 
Dos Passos, John. The Shackles of Power; 

three Jeffersonian Decades, 1966 
The Federalist. The Enduring Federalist, ed. 

and enlarged by Charles A. Beard, 1959 
Falkner, Leonard. For Jefferson and Liberty; 

The United States in War and Peace 180O- 

1815, 1972 
Listen, Robert A. Presidential Power; How 

Much Is Too Much? 1971 
Lisitzky, Genevieve H. Thomas Jefferson, 

1933 
Miller, John C. The Federalist Era, 1789-1801, 

1960 

Burr 

Archer, Jules. Treason in America; disloyalty 

versus dissent, 1971 
Beime, Francis F. Shout Treason; the trial 

of Aaron Burr, 1959 
Chidsey, Donald B. The Great Conspiracy; 

Aaron Burr and his strange doings in the 

West, 1967 
McCaleb, Walter F. The Aaron Bun- 
Conspiracy; and, a new light on Aaron Burr, 

1966 
Nolan, Jeanette C. Soldier, Statesman, and 

Defendant; Aaron Burr, 1972 
Parmet, Herbert S. and Marie B. Hecht. 

Aaron Burr; portrait of an ambitious man, 

1967 



COLLEGE BIBLIOGRAPHY 

Baker. Leonard. John Marshall: A Life in 

Law, 1974 
Baxter, Maurice G. The Steamboat Monopoly, 

Gibbons v, Ogden, 1824, 1972 
Beard. Charles A. "The Supreme Court. 

Usurper or Grantee," reprinted in 

McCloskey. Robert G., Essays in 

Constitutional Law, 1957 pp. 24-62 
Cor^^in, Edward S. The Constitution and 

What It Means Today, 1969 
Cushman, Robert F, Leading Constitutional 

Decisions, 1968 
Dahl. Robert A. Pluralist Democracy in the 

United States, 1964 
Friedman, Leon. ed. United States v. Nixon, 

1974 
Garracy, John A,, ed. Quarrels that Have 

Shaped the Constitution, 1966 
Hofsiadter, Richard, et. al.TVie American 

Republic, Vol. I, 2nd ed,, 1970 
McCloskey, Robert G. Essays in Constitutional 

Law, 1957 
Ne\ins, Allan and Henr>' Steel Commager. 

A Short History of the U,S., 1968 
Pritchett, C. Herman. The American 

Constitution, 1968 
Morison, Samuel Eliot. The Oxford History 

of :he American People, 1965 
Schachner, Nathan. Aaron Burr: a biography, 

1937 
Schachner, Nathan. Thomas Jefferson: a 

biography, 1951 
Shapiro, Martin and Douglas S. Hoobs. The 

Politics of Constitutional Law, 1974 
Swindler, William. The Constitution and 

Chief Justice Marshall 1977 



EDUCATION PROJECTS 
WITH LAW-RELATED 
CURRICULUM 

American Bar Association 

ABA Special Committee on Youth Education 

for Citizenship 
1155 East 60th St. 
Chicago, Illinois 60637 

Association of American Law Schools 
Committee on Civic Education 
Cornell Law School 
Ithaca, New York 14850 

Constitutional Rights Foundation 

6310 San Vicente Blvd. 

Los .\ngeles, California 90048 

Institute for Political and Legal Education 
New Jersey Dept. of Education 
Educational Improvement Center-South 
P.O. Box 426 
Pitman, New Jersey 08071 

Law In American Society Foundation 
33 N. LaSalle St.. Suite 1700 
Chicago, Illinois 60602 

Law In A Free Society 

606 Wilshire Blvd. 

Suite 600 

Santa Monica, California 90401 

Mershon Center 
The Ohio State University 
199 \Vest 10th Avenue 
Columbus, Ohio 43201 

National Street Law Institute 
Georgetown University Law Center 
605 G. Street, N.W. 
Washington, D.C. 20001 



22 



GLOSSARY FOR STUDENTS 

Note: Terms are very simply defined as 
used in the context of the films (rather 
than providing a complete definition), 
accessory (to a crime): someone who know- 
ingly participates in a crime, 
appeal: re\iew by a higher court. 
cashier (of a bank in the early 18th century^: 
an officer of a bank. 

charter (of a bank): allows a bank to legally 
conduct business. 

coasting trade: shipping along the coast of 
an ocean. 

commerce: exchange of goods or products. 
commission: a document granting an office 
in government. 

common law: law based on English and 
American custom or tradition. 
constitutional: in accordance with the United 
States Constitution. 

defense attorney: lawyer who defends the 
person accused. 

Democratic-Republicans (Jeffersonian-Re- 
publicans): advocates of states' rights who 
believe in limiting the power of central gov- 
ernment. 

district attorney: lawyer for the government 
or the people in a certain area. 
due process: fundamental protections guar- 
anteed by the U.S. Constitution to a person 
accused of a crime. 

enximerated power (of Congress): power list- 
ed in Article I of the Constitution. 
expansionism:, policy of extending United 
States territories. 

Federal Circuit Court: federal' court above 
Federal District Court, but below the Su- 
preme Court (established by the Judiciary 
Act of 1789). 

Federalists: advocates of strong central gov- 
ernment. 

grand jury: a body of citizens who decide if 
there is enough e\'idence to prosecute. 
high misdemeanor: the crime of attacking a 
foreign country not at war with the United 
States. 

implied power (of Congress): power of Con- 
gress suggested by those specifically listed 
in the Constitution; power necessary to 
carry out a specific power listed in the Con- 
stitution. ; 
indictment: a formal accusation of a crime 
as required for a trial. 
interstate (commerce): between states, 
intrastate (commerce): within states. 
judicial review: the power to decide if a law 
accords with the Constitution. 
jurisdiction: a court's right or authority to 
hear a case. 

justice of the peace: a local public officer who 
has very limited authority as a judge. 
levying war: carrying out a war. 
market: the whole area for buying or selling. 
midnight judges: appointed in the last hours 
of John Adam's presidency. 
monopoly: total control of a product or ser- 
vice, 
overt act (of war): an actual open act of war. 



precedent: a legal decision forming the rule 
for similar cases that follow. 
principal (of a crime): person directly re- 
sponsible in a crime. 

prosecuting attorney: lawyer representing 
the government in accusing a person in a 
trial. 

repeal: to recall a law and make it not legally 
binding. 

sedition: inciting rebellion against the United 
States. 

separatism: policy of separating or seceding 
from the United States. 
sovereignty: independent authority and 
power. 

states' rights: the policy of giving states 
power and authority. 

subpoena: an order from a court to be a wit- 
ness or to produce e\idence. 
Supreme Court Justice: a judge on the Su- 
preme Court. 

Supreme Court of the United States: the 
highest court that hears appeals and deter- 
mines whether a law is constitutional. 
Secretary of State: cabinet officer, head of 
Department of State. 

treason: the United States Constitution 
states: levying war against the United 
States; an overt act is required, not merely 
planning an attack. 

tyranny: a goverrmient's abuse of power. 
unconstitutional: in conflict with the United 
States Constitution, and therefore void. 



Marshall at leisure 




9B 



ACKNOWLEDGMENTS 

This guide was prepared by Dr. E, Susanne 
RicherU Institute for Political/Legal 
Education (Educational Improvement 
Center, Pitman. New Jersey), in consultation 
with William F, Swindler, John Marshall 
Professor of Law. College of William and 
Mary; Dr Jeffrey B, Morris, Judicial 
Fellow; and John P. Richert, Professor, 
Richard Stockton College, 

Representatives from the following 
organizations gave advice and assistance: 

American Bar Association. Special 

Committee on Youth Education for 

Citizenship 
American Association of Community and 

Junior Colleges 
American Library Association 
American Political Science Association 
National Council for Social Studies 
National Diffusion Network, U.S, Office 

of Education 
National Education Association 
Prime Time School Television 
Public Broadcasting Service 
Supreme Court Historical Society 
WQED/ Pittsburgh 

In addition, suggestions were made by over 
150 educators, curriculum specialists, and 
members of the Bar in several states. 



Any opinions that may be expressed in this 
teaching guide are those of the authors and 
not necessarily those of the Judicial 
Conference of the United States nor of 
Metropolitan Pittsburgh Public 
Broadcasting, Inc. 

Teaching guide produced by 
the WQED Design Center 

Design: Jeffrey Ivanhoe 
Photography :Norris Brock 

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