Dr. Mallonee's Lecture Notes

Written by Frank Wallace

February 10, 1972 

The Periods of Constitutional Development

 A broad survey of the American Constitutional System discloses five major periods of development.

1.            The Marshal Era. 1789-1835

During the early period the legislative branch was regarded as being the most important branch of the national government. The majority of Americans firmly believed that the legislature was the best suited to represent the American people and their interest. Americans were extremely fearful of executives. At first Americans showed very little interest in the work of this great office. In 1789 the state courts still disposed of most legal matters. During the first three years of its existence the Supreme Court had few cases to hear. The court had little prestige.

The office of the Chief Justice had been refused by Patrick Henty and Alexander Hamilton. The first Chief Justice was John Jay. He resigned the office in order to become the governor of New York. He was asked to come back in 1800.

Very gradually the Supreme Court gained in power and prestige. The man most responsible for the growing influence of the judicial branch of our government was John Marshall. John Marshall was the fourth Chief Justice (1801-1835). Marshall has been the most dominant judge in our history. Marshall assumed the leadership of the Supreme Court in its formative years. John Marshall was a man of wide political experience and a brilliant intellect.  Marshall used all of his talents to establish the supremacy of the national government.

Marshall’s major principles of Constitutional Construction were these.

1.            According to John Marshall the American Constitution is derived from the American people and it must be interpreted so as to secure to them the fullest benefit of its provisions. His authority of this statement is taken from the first line of the Preamble, “We the people of the United States do ordain and establish this Constitution “. He also insisted that the idea of the constitution is founded on a popular basis implicit in the “Necessary and Proper Clause”.

Article VI – Supremacy of the National Government.

This Constitution and the laws of the United States shall be made in pursuance thereof; and all treatise made, or which shall be made under the authority of the United States shall be the Supreme Law of the land.

2.            The existence of the American states as political subdivisions of our government did not limit the power of the national government. This is bases on Article VI in the Constitution.

3.            It was Marshall’s contention that the Supreme Court is ultimately responsible for the interpretation of the Constitution in the interest of national supremacy. Therefore according to Marshall the decisions of the Supreme Court are indeed binding upon the states.

4.            John Marshall was of the opinion that the American Constitution was designed to serve the American people for many generations and to that end the Supreme Court must interpret the Constitution to meet the changing needs of the people in order that the Constitution may survive.

II. The Taney Court (1836-1864)

Like Marshall, Roger B. Taney was a man of wide political experience. Roger Taney was an ardent supporter of Andrew Jackson. The Jacksonians represented the new agrarian and pioneer elements in American politics. They were very suspicious of centralized powers. After 1835 the Supreme Court did not completely break with the Marshall Court, but Taney did reassert some of the states’ rights without destroying the principle of national supremacy. The Taney Court reflected some of the Democratic Era because it was to some extent concerned with the rights of ordinary people as against property interest. Taney dealt with the Dred Scott case. The issue of States Rights versus federal centralization was finally decided on the battles fields of the Civil War.

III. Rise of Judicial Power – 1865-1898

The verdict of the Civil War laid the foundation for the development for a cohesive national government. The Americans seemed changed very radically. Certain groups of people began to look toward the federal government for the solution to many of their problems. By 1898 the Court had enough doctrines which would make it an effective censer of American life and legislation.



February 11, 1972

IV. The rise of Executive Power 1898-1937

In governmental affairs the most persistent trend in the twentieth century has been the growth in prestige of the Executive Branch. There has been several factors responsible for this phenomenon growth of executive prestige in America. The social and economic power brought about by industrial expansion. The power of the executive branch was further extended through periods of crises, problems that had to be fought on the national scale. The personal attitudes of strong presidents enhanced the executive branch, presidents like Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Harry S. Truman John F. Kennedy, Lyndon B. Johnson, and Richard Nixon.

The growth of the executive branch went hand in hand of centralization with more power in the federal government. During this period the Supreme Court continued to invalidate social and economic legislation that was demanded by large segments of the people. This period came to a dramatic end in 1937 with a struggle between Roosevelt and the Supreme Court. Roosevelt had won a landslide victory against Herbert Hoover. The Democrats had also won majorities in both houses. Roosevelt was faced with the question of how to reduce the effects of the severe economic depression which had begun with the stock market crash in 1929. Roosevelt took bold steps in dealing with the depression. The administration launched the “New Deal” in 1933. That program consisted of a no. of revolutionary measures designed to solve the severe economic problems.

This National Recovery Act was passed upon by the Supreme Court. The Supreme Court was almost divided equally between liberals and conservatives. Four Conservatives – Pierce Butler, James McReynolds, George Sutherland, Willis Van Devanter.  Liberals – Louis Brandeis, Harlan F. Stone, Benjamin N. Cardozo. The Liberals were generally sympathetic to the “New Deal”. Chief Justice Charles Evans Hughes and Owen Josephus Roberts could not be classified as belonging to either group. They, however, were usually found in the conservative camp.

                The first “New Deal” law came before the Court in 1935. But within the next sixteen months decisions were made on ten cases. The Supreme Court declared eight of the ten cases Null and Void, thus destroying the heart of the Roosevelt Programs.

By the spring of 1936 it appeared that the Supreme Court had wrecked the “new Deal”.  Roosevelt was very, very indignant. He told the Supreme Court that he would get them. It was clear that the “New Deal” would be decided on by the people in 1936. Roosevelt was reelected by the people. He felt that the time had come to attack the court majority. In 1937 the Congress was presented the “Court Packing Bill” which was designed to make sweeping changes in the federal judiciary. The bill provided for the voluntary retirement of Supreme Court judges at the age of 70. The Supreme Court number was fixed at fifteen. The court plan had two purposes.

1.            By bringing in younger blood, Roosevelt said he hoped to make administration of all federal judges expedient.

2.            He wanted to begin the decision of social and economic problems by younger men who had had personal experience with modern life.

The United States Congress did not approve the bill, but the attempt resulted in a much more liberalized court. By the spring of 1937 the court had reversed itself in “New Deal” decisions. A new era begin in American Constitutional development.



February 15, 1972

V. “The New Era” 1937 and onward

                Since 1937 Supreme Court decisions have followed two main lines.

1.            The court has not been greatly concerned with the protection of property. The court has retreated from economic policy making.

There begin an expansion of federal power and extensive federal regulation of many new areas has become an accepted and permanent part of American life. Both the Democratic and Republican parties are involved with programs to extend national power.

2.            The increased court protection accorded to civil liberties, while in the process of regulating economic and property rights to a subordinate position. The court was involved in the creation and the development of elaborate new protection of human rights or personal rights. And under the leadership of Earl Warren the Supreme Court acted to protect personal freedom.

In the years ahead the powers of the executive branch are likely to grow. And this increasing federal authority will probably continue and most of the Constitutional Amendments will evolve around federal versus states authority, problems associated with personal rights, growth of executive power and civil rights.

The Burger Court

It seems obvious in studying the court today that the Warren years of doing are over. The Warren Courts major instrument of change was the 14th Amendment. The 14th Amendment was ratified after the Civil War and the amendment was designed to safe guard individuals (particularly Blacks) against state infringement of two rights.

1.            Due Process which is the procedural fairness accorded to a person accused of crime and

2.            Infringement of the state on equal protection of laws.

At first these courts were very cautious, fearing to upset the delicate balance between federal and state government.  The Warren courts incorporated most of the Bill of Rights safe guards, and the 14th amendment and thereby imposed them on the states. To the Warren Court Due Process required the same fundament fairness in state as well as in federal courts, and in case after case the Warren Court found that state procedures did not measure up. And for equal protection the Warren Court vindicated rights of not only Blacks but also larger disadvantage classes.

The new court is more conservative than its active predecessors. The Warren Court upset state laws that ran from the concept of equality. The present court avoids such cases when possible. The Burgher Court has downed the 14th Amendment. Since the Burger Court included several hold overs from the Warren Court, have has this turnaround taken place?

The Warren Court was so sharply divided that a major change has produced a major shift with the appointment of Chief Justice Warren Earl Burger and Harry Blackmun. Both the vote and psychological advantage has shifted to the side of restraint, as a result the liberals have tucked in their horns. They are not voting their liberal inclinations unless it is very important to them. The Burger Court is in favor of doing anything to avoid controversial cases. They are taking only the controversial cases that they cannot avoid.

The Growth of Federal Power

It has not occurred by amendment. The formal institutional powers of the national government are essentially the same today as in 1789. But the Supreme Court largely building upon decisions of John Marshall, the United States Congress, and on president and ultimately the people the people have then advantage of the constitutional flexibility to permit the national government to exercise power needed to fight wars, fight depressions and generally to serve the needs of a modern industrial nation.

There are three major constitutional pillars upon which this tremendous expansion has developed.

1.            The War Power – The national government has been responsible for protecting this nation from external aggression and when necessary the national government has been responsible for waging war. The possibility of an attack is always present. The national government can no longer wait until war. The government must keep this nation strong.

In the time of war the national government has to organize, coordinate, and channel all human and natural resources to the end of destroying the war making power of the enemy. It then becomes necessary and proper to constrict men, requisition of property to encourage strategic studies, allocate resources to maintain a supporting economy and to bolster public morale. When the fighting ceases the government most cope with the problem of demobilization.  It must give aid to veterans and to correct the many maladjustments in the economy. In total war the government must have total power.


2.            The power to regulate interstate and foreign commerce. Congressional authority extends to all commerce that affects more states then one. Commerce include all commercial intercourse, the production, the buying, the selling and transporting of goods and the power to regulate is the power to prescribe the rules by which this commerce is governed. That is the right to foster, prohibit, promote, protect, and defend all commerce that effects more states then one. The national government has been able to find justification to regulate a wide range of human activities. It is a federal crime to use commerce to sell unadulterated goods, steal goods, rob banks, kidnap and transport prostitutes.