PLS 321 Study Guide - Final Guide: South Carolina Supreme Court, National Labor Relations Act, South Carolina State House
Course CodePLS 321
Marbury V Madison
Facts of the Case:
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the
peace in the District of Columbia. Marbury and several others were appointed to government posts created by
Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized.
The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.
Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place
for Marbury to get the relief he requests?
Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the
Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to
the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the
legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.
Facts of the case: Marbury sued to ask Supreme court for his
-Marbury is a midnight judge-doesn’t receive his commission, should
get commission under writ of mandamus- original jurisdiction of case
meaning the case originated in the Supreme Court
-writ of mandamus is found under article 3 originally Judiciary
Act of 1798
-Writ of Mandamus issued on Marbury Marshall should have recused
himself, issued the judgeship and wrote the Supreme Court opinion.
Goal-was to give power to SC instead of supporting Marbury he
established judicial review
Rule of Law: established the power of judicial review-could overturn
Congressional law and declare unconstitutional
Facts: pres Adams appointed Marbury to 5 years as justice in District
of Columbia; confirmed by Senate. Madison refused to deliver the
commission to Marbury. Marbury filed a petition with SC asking court
to issue a writ of mandamus to Madison to compel him to deliver
commission. Madison relied on Judiciary Act of 1789, granting SC the
power to issue writs to public officials
Issue: can congress change the constitution? Institutionally change
the original jurisdiction of the constitution
Schenck v. United States
Facts of the Case:
During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous
wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only
peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate
the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of
every act depends on the circumstances. "The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be
Facts: espionage act of 1917 authorized military and postal
censorship, amended in 1918 by the Sedition act, which punished
insubordination in the armed forces, attempting to obstruct enlistment
and recruiting, and disseminating false statements with the intent to
hinder military operations. Law also allowed postmaster general
discretion to ban treasonable and seditious material from the mail.
-a multi-count indictment accused Schenck, general secretary of the
Socialist party, of conspiring to cause/attempt to cause
insubordination in the army and navy and also of obstructing
recruitment and enlistment in the armed forces when the US was at war
-charged the Schenck and others printed and attempted to distribute to
men who had been called and accepted for military service a circular
that advocated noncooperation in the war effort, also charged Schenck
with sending non-mailable matter- the circular- through the mail
-required for clear and present danger-an imminent threat-means that
the action will occur after the speech. Proximity of the speech to the
action-if the speech occurs what’s the likelihood of the action
occurring and the time in between
-opinion talks about gravity of evils-is this a significant threat?
-specific intent of the speaker-intent to bring about unlawful
-if he puts the leaflets out it hinders the war; proximity-
worried that people won’t go to the draft
Issue: sending and distribution of the circular went against the
Espionage Act of 1917 and the amended 1918 sedition act by attempting
to obstruct the army and navy enlisting
Court holds that the speaker distributing leaflets was unlawful
presented a clear and present danger.
Abrams v. United States
Facts of the Case:
The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One
leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in
Yiddish, denounced the war and US efforts to impede the Russian Revolution. The defendants were charged and
convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material.
They were sentenced to 20 years in prison.
Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech
clause of the First Amendment?
No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority
opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production
of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and
Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a
classic libertarian pronouncement.
-wartime, a group protesting/criticizing the fact that the gov’t is
trying to put down the communist gov’t
-under the same sedition act-speech against gov’t action against gov’t
overthrow of communist gov’t
-holmes would say this is not clear and present danger because it
doesn’t affect the war effort
Gitlow v. New York
Facts of the Case:
Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of
socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law,
which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was
no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to
incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent
revolution violated the law.
Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the
free speech clause of the First Amendment?
Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process
that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have
a tendency to result in action dangerous to public security, even though such utterances create no clear and present
danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may
decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be
upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
Facts: was a member of socialist party
-intent outweighing actions and more important than proximity
-court is making it easier to defer to the gov’t
-The Supreme Court previously held, in Barron v. Baltimore, 32 U.S.
243 (1833), that the Constitution's Bill of Rights applied only to the
federal government, and that, consequently, the federal courts could
not stop the enforcement of state laws that restricted the rights
enumerated in the Bill of Rights. Gitlow v. New York's partial
reversal of that precedent began a trend toward nearly complete
reversal; the Supreme Court now holds that almost every provision of
the Bill of Rights applies to both the federal government and the
states. The Court upheld the state law challenged in Gitlow v. New
York, which made it a crime to advocate the duty, need, or
appropriateness of overthrowing government by force or violence. The
Court's ruling on the effects of the Fourteenth Amendment was
incidental to the decision, but nevertheless established an extremely
Terminiello v. Chicago
Facts of the Case:
Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various
political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium.
Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd.
The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in
inciting a riot.
Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by the First Amendment?
In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the
freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free