Constitutional Case Law

What is Constitutional Case Law?

Constitutional case law is law about rights established in federal and state constitutions. (We will address state constitutional law here.) Most constitutional case law is based on Supreme Court rulings on whether or not legislation violates the Constitution.

The Supremacy of the Judiciary over Congress

The United States Constitution established three co-equal branches of government: the legislative branch (Congress), the executive branch (President), and the judicial branch (Supreme Court). It allows for checks and balances on the three branches but, when an issue is in conflict, which branch prevails?

The Constitution does not address this problem. Instead, the question was decided in the case of Marbury v. Madison, 5 U.S. 137 (1803). William Marbury petitioned the Supreme Court to force James Madison, president Thomas Jefferson's secretary of state, to process the paperwork for the commission of circuit judgeship that he had been assigned at the close of the prior administration. The Judiciary Act of 1789 (congressional legislation) would have allowed the Supreme Court to order Madison to fulfill his duty, but Justice John Marshall's ruling interpreted the Constitution to say that the Supreme Court cannot directly order compliance in matters like the case in question; rather, it has the power of judicial review of lower court decisions (appellate jurisdiction). This meant that the section of the Judiciary Act of 1789 in question was unconstitutional. Marbury v. Madison therefore established that when there is a conflict in interpretation of the constitution, the judiciary is of higher authority than congress. This decision is one of the foundations of constitutional case law.

How Can Constitutional Case Law Help You?

You can cite constitutional case law (called case law or precedent) in your court briefs and motions when you file a lawsuit or other legal document. You can cite cases as far back as 1803. Just make sure the cases have not been overturned.

You can count on the fact that two of the most important cases in United States history, have not. These cases establish that any unconstitutional act passed by Congress is null and void when challenged and that the law will not be a defense for criminal and civil liability. These two cases are Marbury vs. Madison and Norton v. Shelby County.

These and the other cases listed below may be helpful to Illegally Targeted People in supporting your argument in both common law and constitutional law. We will be providing links and more case law in the future.

All laws which are repugnant to the Constitution are null and void.
Marbury vs. Madison, 5, U.S. (1 Cranch) 137, 174, 176, (1803).Chief Justice John Marshall

An unconstitutional act is not law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.
Norton v. Shelby County, 118 U.S. 425 (1886)

The section below includes some state constitutional case law. California law is in green text. New York law is in purple text.

Unconstitutional Acts by Congress - Affords no Protection - Null and Void

Marbury v. Madison, 5 U.S. 137 (1803)
Norton v. Shelby County, 118 U. S. 425 (1886)
Miranda vs. Arizona, 384 U.S. 436, 491 (1966)

Authority to Sue the United States

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Constitutional Rights)
Finley v. United States, 490 U.S. 545 (1989) (Federal Tort Claims Act)

Common Law - Free from Restraint

Conservator of Wendland 26 Cal.4th 519 (2001)
Union Pacific Railway Co. v. Botsford 141 U.S. 250 (1891)
Schloendorff v. Society of New York Hospital (N.Y. 1914) 105 N.E. 92, 93

Amendment I - Freedom of Speech and Expression

Terminiello v. Chicago, (1949) 337 U.S. 1 (function of free speech is to invite dispute)
Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503 (expression)
Stanley v. Georgia (1969) 394 U.S. 557 (cannot censor books or films)
Texas v. Johnson (1989) 491 U.S. 397 (not prohibit just because society finds offensive)

Amendment I - First Amendment Overbreadth Doctrine

Broadrick v. Oklahoma 413 U.S. 601, 612 (1973)
In re M.S. 10 Cal.4th 698 (1995)

Amendment IV - Person’s “Reasonable Expectation of Privacy"

Carpenter v. United States, 585 U.S. __ No. 16-402 (2018)
United States v. Jones, 565 U.S. __ (2012)
People v. Windham, 145 Cal.App.4th 881 (2006)
Sanders v. American Broadcasting Cos., Inc., 978 P.2d 67 (Cal. 1999)
Katz v. United States, 389 U.S. 347 (1967)
United States v. Karo, 468 U.S. 705 (1984)

Amendment IV - The Right To Be Let Alone

Katz v. United States 389 U.S. 347 (1967)
Griswold v. Connecticut 381 U.S. 479 (1965)
People v. Superior Court (Walker) 143 Cal.App.4th 1183 (2006)
People v. Jenkins 22 Cal.4th 900 95 (2000)

Amendment V – Witness against himself - Not be deprived of life, liberty without due process of law

Miranda v. Arizona 384 U.S. 436 (1966)
Chambers v. Florida 309 U.S. 227 (1940)
Mallory v. United States 354 U.S. 449 (1957)
Malloy v. Hogan 378 U.S. 1 (1964)

Amendment VI – Right to a speedy and public trial, Be informed of the nature and cause of the accusation

In re Oliver 333 U.S. 257 (1948)
Klopfer v North Carolina 386 U.S. 213 (1967)
Payne v. Superior Court, 17 Cal.3d 908 (1976)

Amendment VI - Be confronted with the witnesses against him

Pointer v. Texas 380 U.S. 400 (1965)
Crawford v Washington 541 U.S. 36 (2004)
Maryland v. Craig 497 U.S. 836 (1990

Amendment VI - Have compulsory process for obtaining witnesses in his favor

Washington v. Texas 388 U.S. 14 (1967)

Amendment VI - Have the assistance of counsel for his defense

Escobedo v. Illinois 378 U.S. 478 (1964)
Gideon v. Wainwright 372 U.S. 335 (1963)
Powell v. Alabama 287 U.S. 45, 53 (1932)
Johnson v. Zerbst, 304 U.S. 458 (1938)

Amendment IX – Rights Not Enumerated to the People

Griswold v. Connecticut 381 U.S. 479 (1965)
United Public Workers v. Mitchell 330 U.S. 75 (1947)

Amendment XIII and XIV- Involuntary Servitude

Scott v. Sandford 60 U.S. 393 (1856) (overturned by 14th)
Slaughter-House Cases 83 U.S. 16 Wall. 36 36 (1872)

Amendment XIV- Equal Protection

Skinner v. Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942)
Eisenstadt v. Baird 405 U.S. 438 (1972)
People v. Rhodes 126 Cal.App.4th 1374 (2005)
Brown v. Board of Education 347 U.S. 483 (1954)

Amendment XIV - Due Process - Irrational - Arbitrary

Lochner v. New York, 198 U.S. 45 (1905)
Lawrence v. Texas (02-102) 539 U.S. 558 (2003) (& Eq Pro)

Amendment XIV – Right to Privacy

Roe v. Wade 410 U.S. 113 (1973)

Doctrine of Separation of Powers

United States v. Alvarez, 567 U.S. (2012)