Constitutional Foundations / Federalism Cases:
Case #1 (Gibbons v. Ogden; 1824)
The case of Gibbons v. Ogden (1824), decided 35 years after the ratification of the
Constitution, was a key turning point for the expansion of federal power to address
national problems.
Under the Articles of Confederation, the national government was virtually powerless to
enact policies to rationalize the actions of states. One problem that emerged during this
time was the way in which state policies tended to restrict commerce within and beyond
their borders, making market exchanges inefficient and costly. In the Constitution, the
framers included the Commerce Clause in Article I, Section 8 to address this issue. The
Commerce Clause states that Congress has the power "[t]o regulate Commerce with
foreign Nations, and among the several States. . . ." The hope was that giving Congress
such a power would help to unify commerce policies thereby making market exchanges
more efficient and less costly.
Though the clause clearly gave Congress some power over commerce, it was unclear just
how much. It was also unclear what constituted commerce. The Gibbons case clarified
some of these issues under a decision issued by Chief Justice John Marshall, who had
nationalist intentions.
In 1808, Robert Fulton and Robert Livingston acquired a monopoly from the New York
state legislature to operate steamboats on the state's waters. This monopoly extended to
interstate waterways, those areas of water that stretch between states. Aaron Ogden held a
Fulton-Livingston license to operate steamboats under this monopoly. However, Thomas
Gibbons held a federal coasting license, granted under a 1793 Act of Congress, and
operated steamboats between New Jersey and New York that competed with Ogden's.
Ogden filed a complaint in the Court of Chancery of New York asking the court to
restrain Gibbons from operating his boats. Ogden's lawyer contended that states often
passed laws on issues regarding interstate matters and that states should have fully
concurrent power with Congress on matters concerning interstate commerce. The
monopoly, therefore, should be upheld.
Gibbons' lawyer, Daniel Webster, argued that Congress had exclusive national power
over interstate commerce according to Article I, Section 8 of the Constitution and that to
argue otherwise would result in confusing and contradictory local regulatory policies.
The Court of Chancery of New York found in favor of Ogden and issued an injunction to
restrict Gibbons from operating his boats. Gibbons appealed the case to the Court of
Errors of New York, which affirmed the decision. Gibbons appealed the case to the
Supreme Court of the United States.
Case #2 (Gideon v. Wainwright; 1963)
Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool
Room in Panama City, Florida. Someone broke a window, smashed the cigarette machine and
jukebox, and stole money from both. Later that day, a witness reported that he had seen Clarence
Earl Gideon in the poolroom at around 5:30 that morning. When Gideon was found nearby with a
pint of wine and some change in his pockets, the police arrested him and charged him with
breaking and entering.
Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the
judge to appoint one for him. Gideon argued that the Court should do so because the Sixth
Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling that
the state did not have to pay a poor person's legal defense unless he was charged with a capital
crime or "special circumstances" existed. Gideon was left to represent himself.
As might be expected, Gideon did a poor job of defending himself. He had done no preparation
work before his trial; his choice of witnesses was unusual—for instance, he called police officers
who arrested him to testify on his behalf, not having any reason to believe they would help his
case. He had no experience in cross-examining a witness in order to impeach that person's
credibility, so his line of questioning was not as productive as a lawyer's would have been.
Gideon was found guilty of breaking and entering and petty larceny, which was a felony. He was
sentenced to five years in a Florida state prison, partly because of his prior criminal record. While
in prison, he began studying law in the prison library, believing that his Sixth Amendment rights
had been violated when he was denied a defense lawyer paid for by the State. His study of the law
led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that
he be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected
his petition, he handwrote a petition for a writ of certiorari to the Supreme Court of the United
States, asking that it hear his case. The Court allowed him to file it in forma pauperis, which
meant that the Court would waive the fees generally associated with such a petition. Generally,
the Court dismisses most of these petitions; Gideon's was among those that it did not dismiss.
In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases? That
was the question the Court agreed to decide when they accepted Gideon's petition. It was not
merely a question of whether Gideon had been treated fairly; the Court's ruling would affect
many other people who faced similar circumstances. In a previous decision, Betts v. Brady
(1942), the Court had held that in state criminal trials, an indigent defendant must be supplied
with an attorney only in special circumstances, which included complex charges and
incompetence or illiteracy on the part of the defendant. Since Gideon had not claimed special
circumstances, the Court would have to overturn Betts in order to rule in Gideon's favor.
(Florida's state law provided indigent defendants with lawyers only in capital cases; many other
states had laws providing lawyers to most or all indigent defendants.)
Case #3 (U.S. v. Lopez : 1995)
Alfonzo Lopez, a 12th grade high school student, carried a concealed
weapon into his San Antonio, Texas high school. He was charged under
Texas law with firearm possession on school premises. The next day, the
state charges were dismissed after federal agents charged Lopez with
violating a federal criminal statute, the Gun-Free School Zones Act of 1990.
The act forbids "any individual knowingly to possess a firearm at a place
that [he] knows...is a school zone." Lopez was found guilty following a
bench trial and sentenced to six months' imprisonment and two years'
supervised release.
Optional Case Study:
Tinker v. Des Moines (1969)
John and Mary Beth Tinker were public school students in Des Moines, Iowa in
December of 1965. As part of a group against American involvement in the Vietnam
War, they decided to publicize their opposition by wearing black armbands to school.
Having heard of the students' plans, the principals of the public schools in Des Moines
adopted and informed students of a new policy concerning armbands. This policy stated
that any student who wore an armband to school would be asked immediately to remove
it. A student who refused to take off his or her armband would be suspended until
agreeing to return to school without the band.
Two days later and aware of the school policy, the Tinker children and a friend decided
to wear armbands to school. Upon arriving at school, the children were asked to remove
their armbands. They did not remove the armbands and were subsequently suspended
until they returned to school without their armbands.
The children returned to school without armbands after January 1, 1966, the date
scheduled for the end of their protest. However, their fathers filed suit in U.S. District
Court. This suit asked the court for a small amount of money for damages and an
injunction to restrain school officials from enforcing their armband policy. Although the
District Court recognized the children's First Amendment right to free speech, the court
refused to issue an injunction, claiming that the school officials' actions were reasonable
in light of potential disruptions from the students' protest. The Tinkers appealed their case
to the U.S. Court of Appeals but were disappointed when a tie vote in that court allowed
the District Court's ruling stand. As a result they decided to appeal the case to the
Supreme Court of the United States.
The case came down to this fundamental question: Do the First Amendment rights of free
speech extend to symbolic speech by students in public schools? And, if so, in what
circumstances is that symbolic speech protected? The First Amendment states "Congress
shall make no law . . . abridging the freedom of speech." The Fourteenth Amendment
extends this rule to state governments as well, of which school systems are a part. The
First Amendment, however, does not identify which kinds of speech are protected. For
example, it is not clear whether hate speech against an individual or group is protected.
Neither does the First Amendment specify what types of expressive actions should be
considered as speech.
The Supreme Court of the United States has made many attempts to determine what types
of symbolic speech are protected under the First Amendment. In 1919, the Court decided
in Schenck v. United States that an individual could be punished for distributing antiWorld War I pamphlets urging non-compliance with the draft because the pamphlets
"create[ed] a clear and present danger that they will bring about [a] substantive evil[ . . .]
Congress has a right to prevent"—draft obstruction. The Court wrestled with the issue of
the right to symbolic speech again in the case of Thornhill v. Alabama (1940) when the
Court ruled that picketing was a form of symbolic speech protected by the First
Amendment because no clear and present danger of destruction of life or property or of
breach of the peace was inherent in the action. Three years later in West Virginia v.
Barnette (1943), the Court extended the First Amendment protection of symbolic speech
to students in public schools. In Barnette, the Court held "[i]f there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion. . . ."
In 1968 the Supreme Court of the United States agreed to hear Tinker's case and consider
the constitutionality of the Des Moines principals' anti-armband policy. The Court's
decision in Tinker v. Des Moines was handed down in 1969.
Texas v. Johnson (1989)
Gregory Lee Johnson participated in a political demonstration during the Republican
National Convention in Dallas, Texas, in 1984. The purpose of the demonstration was to
protest policies of the Reagan Administration and of certain corporations based in Dallas.
Demonstrators marched through the streets, chanted slogans, and held protests outside the
offices of several corporations. At one point, another demonstrator handed Johnson an
American flag.
When the demonstrators reached Dallas City Hall, Johnson doused the flag with kerosene
and set it on fire. During the burning of the flag, the demonstrators shouted, "America,
the red, white, and blue, we spit on you." No one was hurt or threatened with injury, but
some witnesses to the flag burning said they were seriously offended. One witness picked
up the flag's charred remains and buried them in his backyard.
Johnson was charged with the desecration of a venerated object, in violation of the Texas
Penal Code. He was convicted, sentenced to one year in prison, and fined $2,000. He
appealed his conviction to the Court of Appeals for the Fifth District of Texas, which let
his conviction stand. He then appealed to the Texas Court of Criminal Appeals, which is
the highest court in Texas that hears criminal cases. That court overturned his conviction
saying that the State, consistent with the First Amendment, could not punish Johnson for
burning the flag in these circumstances.
The court first found that Johnson's burning of the flag was expressive conduct protected
by the First Amendment. Therefore in order for a state to criminalize or regulate such
conduct it would have to serve a compelling state interest that would outweigh the
protection of the First Amendment. The court concluded that criminally sanctioning flag
desecration in order to preserve the flag as a symbol of national unity was not a
compelling enough interest to survive the constitutional challenge. It also held that while
preventing breaches of the peace qualified as a compelling state interest the statute was
not drawn narrowly enough to only punish those flag burnings that would likely result in
a serious disturbance. Further, it stressed that another Texas statute prohibited breaches of
the peace and could serve the same purpose of preventing disturbances without punishing
this flag desecration.
The court said, "Recognizing that the right to differ is the centerpiece of our First
Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in its
citizens. Therefore that very same government cannot carve out a symbol of unity and
prescribe a set of approved messages to be associated with that symbol. . . . " The court
also concluded that the flag burning in this case did not cause or threaten to cause a
breach of the peace.
The State of Texas filed a petition for a writ of certiorari and, in 1988, the Supreme Court
of the United States agreed to hear the case. In 1989, the Court handed down its decision.