Supreme Court cases and constitutional amendment procedures

¶ … Constitution provides depicts what is necessary to amend the Constitution. Either two-thirds of both Houses of the Congress, or an application by the legislatures of two-thirds of the several States, can call for a convention proposing amendments to the constitution. Ratification requires that the Legislatures of three fourths of the several states or Constitutional conventions in three-fourths of the states approving the ratification of those amendments. Therefore, the Founding Fathers simultaneously ensured that the Constitution would be a living document, while also taking steps to preserve the Constitution and make it somewhat invulnerable to the changing whims of people.

The Founding Fathers appear to have had some trepidation about the idea of changing the Constitution. After all, the Constitution was the result of literally years of debate. It was not the first document to govern the former colonies after gaining independence from Great Britain, and the first system proved untenable. It was through extensive study, thought, and debate that they came to the ideals in the Constitution. They were committed to the idea that these ideals were the best ones to ensure a representative democracy. On the other hand, they were also strongly committed to the idea of self-government, and strongly believed that people should have the flexibility to change the terms of their governing document, as long as it was in a way that would protect the rights of minorities.

For the most part, this system of constitutional change has proven successful. However, in some ways, for example the consistent failure to pass the ERA demonstrates that it can still leave minority or emerging populations vulnerable. In fact, had the Civil War not occurred and the Southern states' government not been impacted in the Reconstruction period, it seems unlikely that the 13th-15th Amendments ever would have been added.

Marbury v. Madison (1803)

Marbury v. Madison is a fascinating case. It literally changed the face of American jurisprudence, and its impact may have expanded the power of the Supreme Court far beyond what the Founding Fathers envisioned when writing the Constitution. The underlying dispute was a relatively simple one. President John Adams appointed William Marbury as Justice of the Peace for the District of Columbia, but Marbury's commission was not delivered. Marbury then petitioned the Supreme Court in an effort to force Secretary of State James Madison to deliver the commission. The Court did not even consider the merits of Marbury's petition. Instead, the Court held that the Judiciary Act of 1789, which was the underlying Act allowing Marbury to bring his claim before the Supreme Court, was unconstitutional since it extended the Court's original jurisdiction beyond the jurisdiction given to the Court under Article III in the Constitution.

At first blush, the Court's decision seems to be aimed at limiting the Court's power. After all, the immediate impact of the decision was to limit the Court's original jurisdiction to the boundaries contained in the Constitution. However, the decision actually increased the power of the Court. Prior to that time, there was no indication that the Supreme Court would be able to invalidate an act of Congress. While checks and balances were implied in the Constitution, the role of the Court appeared to be that of interpreting laws within a constitutional framework. The Marbury Court rejected that notion and determined that, if a law did not comply with the Constitution, it had the power to invalidate that law. It was with this case that the Supreme Court established the power of judicial review, and it was the first time that concept had been employed anywhere in the world.

Texas v. Johnson (1989)

In Texas v. Johnson, the Court took a significant, but very controversial, step to protect the freedom of speech in the United States. The underlying facts of the case are problematic for many people, and the case made it clear that First Amendment guarantees are meaningless unless they protect those whose views are repugnant to the majority of Americans. Gregory Johnson participated in a political demonstration during the 1984 Republican National Convention in Dallas. During that demonstration, he poured kerosene on and burned a stolen United States flag. He was charged with and convicted of desecration of a venerated object, a Texas statute aimed at preventing just such actions. Johnson's position was that burning the flag was symbolic speech and that, as such, it had First Amendment protections. The State of Texas' position was that it had an interest in preserving the flag as a symbol of national unity and maintaining order, and that both of those interests were more important than Johnson's free speech rights. The Texas Court of Criminal Appeals agreed with Johnson's position and overturned his conviction. The State of Texas then asked for the Supreme Court to review the case.