Introduction to Constitutional Law

5 Cases Everyone Should Know from the Jay and Marshall Courts

Chisholm, Marbury, McCulloch, Gibbons, and Barron

|The Volokh Conspiracy |

Here is a preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should KnowThis post will focus on cases from the Jay and Marshall Courts.

Chisholm v. Georgia (1793)

 

 Marbury v. Madison (1803)

 McCulloch v. Maryland (1819)

 

 Gibbons v. Ogden (1824)

 

 Barron v. City of Baltimore (1833)

 

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NEXT: Imagining a World Without Qualified Immunity, Part III

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  1. Barron V baltimore provides excellent reasoning as to why double jeopardy clause of 5A applies against the Federal Government. Dual sovereign is not an exception to 5A but a circumvention of 5A. Gorsuch got in correct in Gamble.

  2. If you had some good sponsorships – like the West Corporation, for example, you might be able to add some extra elements to these videos.

    You could have Matthew Mcconaughey and Scarlett Johansson as your narrators.

    Well, that’s for starters, as I think up other cool ideas I’ll let you know.

  3. I think current POTUS would benefit from this material, too bad it would just in one ear and out the other.

    1. “I think current POTUS would benefit from this material, too bad it would just in one ear and out the other.”

      The last one could have benefited also

      1. Whatever you think of Obama’s theories of constitutional interpretation, he obviously is familiar with these decisions, since he taught them at the University of Chicago.

        1. Yes – obama was certainly aware of the takings clause – based on his actions in the GM bondholders and chrysler takings.
          He was obviously familiar with those cases and the power of the executive branch’s power to write legislation in DACA

          Though I have yet to see Trump come even close to those and similar issues with Obama

          Maybe you could point a few out

        2. Yes, he was familiar with the Constitution in the same sense many constitutional “scholars” are: Familiar with all the ways of rationalizing not following it.

          1. Always fun when people confuse is with ought on this forum.

  4. Every time there is a list with a set amount of something, there are always arguments over why such and such thing was included and such and such was not. Is there going to be a post of the honorable mentions that didn’t make the cut?

  5. On the McCulloch v. Maryland case page (from the website) you write:

    “Article I, Section 1 of the Constitution explains that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In other words, if a legislative power is not enumerated somewhere in the Constitution, then Congress does not have that power.”

    If your claim is that Congress only possess those powers expressly provided and as such does not possess powers by implication, then your assertion is incorrect. That question was debated and put to motion during the first Congress when the language of the 10th Amendment was introduced. Your preferred view lost in the House by a vote of 17 to 32. I’m sure you discuss this later in the section though.

    1. Uh, Congress doesn’t get to decide its own powers, or what the Constitution means. So even if the vote you mention but don’t cite occurred, it is meaningless.

    2. The federalists and anti-federalists argued about this. The federalist position was that they didn’t need to come out and say that Congress was limited to the powers it was granted in the text, because obviously any powers that weren’t granted, weren’t granted.

      The anti-federalist position was, “Once you’re in power, that’s not the position you’ll take. We want that in writing!”

      So the federalists put it in writing, but left out the “expressly”, and after they were in power, were all, “Aha, we didn’t say expressly, that means we DO get implied powers! Psych!”

      Once again, the anti-federalists correctly anticipated how the federalists would act once in power.

  6. Very cool.

    But, note that the automatic scrolling of pictures (at least in chronological view) is pretty darn irritating/distracting.

  7. Needs more Martin v. Hunter’s Lessee.

  8. I found the one-minute brief excerpt from Marbury v. Madison a bit disconcerting. The Judiciary Act of 1801 dealt with 16 new Article III judges; Marbury wasn’t one of them. Rather, he was one of 42 “Justices of the Peace” for the District of Columbia, for a five-year term, appointed pursuant to the Organic Act of the District of Columbia. So, he wasn’t an Article III judge; and may not even have been what we might consider a judge, as these Justices of the Peace may well have best been considered executive-branch administrative people to run the District of Columbia. (Whatever!) And whether Marshall, as Secretary of State, “inadvertently” failed to deliver Marbury’s commission, or simply ran out of time during the final day of Adams’ presidency, seems arguable.
    Simplification is one thing; getting the correct statute actually involved in Marbury v. Madison is another….

  9. Did you really need that jump-scare in the middle of Gibbons v. Ogden? I’m going t have to sleep with a night light now.

    (Strictly a joke – please do not sue)

  10. I bought the Kindle version, the most expensive Kindle book I’ve ever purchased.

    The pagination is screwed up. Reading it on my laptop using the Kindle cloud app, the bold-text page numbers appear in random locations on the page.

    I expected better for my $30.

    1. Maybe I’m misunderstanding, but it seems like that should be the standard for academic books in Kindle. Doesn’t that mean you can tell which page you would be on in the hardcopy, regardless of the page you are on in the Kindle, allowing you to cite to the proper page number?

  11. A pro-tip, if you want to convince people to buy this product (alas, I won’t…but no offense intended): maybe give a preview into the discussion of one case in full and not a 60- to 90-second sample. The samples do almost nothing, other than show that the authors are talking about the case. In fact, the samples, taken by themselves, suggest the discussion of the case is superficial and sometimes based on disputable premises.

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