A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional.

In Federalist 78, Alexander Hamilton wrote that courts should only be able strike down a statute as unconstitutional if there is an "irreconcilable variance" between the statute and the Constitution. Otherwise, a statute should be upheld.

Likewise, at the 1787 Philadelphia Convention, Virginia delegate George Mason said that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."

The Miranda warning, which also can be referred to as the Miranda rights, is a right to silence warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona (1966), the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment and the Sixth Amendment right to counsel, through the incorporation of these rights into state law. Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements as evidence against him or her in a criminal trial.

The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967. The papers were released by Daniel Ellsberg, who had worked on the study; they were first brought to the attention of the public on the front page of The New York Times in 1971. A 1996 article in The New York Times said that the Pentagon Papers had demonstrated, among other things, that the Johnson Administration "systematically lied, not only to the public but also to Congress".

Marbury v. Madison (1803)

(referring to concensus on the court)

Brown v. Board of Education (1954)

(referring to concensus on the court)

• Dred Scott
• Plessy v. Ferguson
• Brown v. Board of Education

Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate.

Judicial restraint is often associated with conservative views, and activism is associated with liberalism, but these are often misleading labels.

Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint.

During the 1930s, the “Four Horsemen of Reaction” were activist in striking down New Deal laws.

The Constitution invested great powers in Congress in Article I.

A. Congress had the power to “lay and collect taxes,” to provide for

defense, and to regulate “commerce among the several states.”

B. Article I also gave Congress the power to pass “necessary and

proper” laws to implement its enumerated powers.

The Constitution set up an executive branch in Article II.

A. There was much debate over the process of electing a president.

The delegates agreed to the provision of an electoral college to

select the president, with electors initially chosen by state

legislatures.

B. Article II invested the “executive power” in a president with a term

of four years.

C. Aside from his powers as commander in chief of the Army and

Navy, the president’s power to execute the laws passed by

Congress was the only one not shared with that body, including the

power to negotiate treaties and to nominate Supreme Court

justices.

There was little debate about the Supreme Court, which was established in Article III.

A. State courts then handled most cases, which largely involved contract and property disputes and criminal prosecutions.

B. The “judicial power” of the Supreme Court extends to cases “arising” under the Constitution and federal law.

C. Article VI made the Constitution the “supreme law of the land.”

D. It is important to note that the delegates in Philadelphia had no idea that the Supreme Court would wield its power to strike down hundreds of state and federal laws.

1. They did not anticipate that states would pass laws that violated the federal Constitution.

2. Most of the delegates voiced their support for the doctrine of judicial review of legislation.

The Supreme Court held its first session in New York City on February 1, 1790.

A. Congress set the number of justices at 6; the number has been as low as five and as high as ten over the Court’s history.

B. The Court adjourned its first session for lack of a quorum and no cases to decide.

C. The first ten justices were all loyal Federalists and believed in a strong national government, with little power reserved for formerly “sovereign” states.

A. A citizen of South Carolina sued Georgia over a Revolutionary War debt.

B. Article III gave the Court jurisdiction over suits “between a state and citizens of another state.”

C. The Court ruled that Georgia was not a “sovereign” state and could be sued.

D. The reaction to Chisholm was fierce, and led to adoption of the Eleventh Amendment, barring suits like that in Chisholm.

E. The Court ended its first decade as a weak and leaderless institution.