Category: Landmark Supreme Court Cases and the Constitution
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01.24.10 - Hammer v. Dagenhart (1918)
Synopsis:
For a pdf version of this eLesson with questions and answers on separate pages, please click here.
This month’s Landmark Supreme Court Cases and the Constitution eLesson looks at the 1918 case Hammer v. Dagenhart. In this case, the Supreme Court analyzed the constitutionality of a federal law
banning the shipment across state lines of goods made in factories which employed children under the age of fourteen. In a decision overturned decades later, the Court held that Congress had
overstepped its constitutional power in attempting to regulate the production of goods.
Resources
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
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
http://www.oyez.org/cases/1901-1939/1917/1917_704
http://www.constitutionbee.org/user/StudentGuide.aspx?id=765
http://www.constitutionbee.org/user/StudentGuide.aspx?id=797
http://www.constitutionbee.org/user/StudentGuide.aspx?id=804
Activity
Around the turn of the Twentieth Century in the US, it was not uncommon for children to work long hours in factories, mills and other industrial settings. Many families depended on the income earned by
their children. Public concern about the effect this kind of work had on children began to rise. Advocates for child labor laws pointed out that children who worked such long hours (sometimes as much as
sixty or seventy hours a week) were deprived of education, fresh air, and time to play. They also worried about the physical risks: children in factories had high accident rates. Some states passed laws
restricting child labor, but these placed states with restrictions at an economic disadvantage.
In response to these concerns, Congress passed the Keating-Owen Act of 1916. This law forbade the shipment across state lines of goods made in factories which employed children under the age of 14,
or children between 14 and 16 who worked more than eight hours a day, overnight, or more than six days/week. Congress claimed constitutional authority for this law because Article I, Section 8 gives it
the power to regulate interstate commerce.
Roland Dagenhart of North Carolina worked at a textile mill with his two teenage sons. He believed the law was unconstitutional and sued, eventually taking his case to the Supreme Court. He made three
constitutional arguments. First, he argued that the law was not a regulation of commerce. Secondly, he believed the Tenth Amendment left the power to make rules for child labor to the states. Finally, his
liberty and property protected by the Fifth Amendment included the right to allow his children to work.
In Hammer v. Dagenhart, Court agreed with Dagenhart and struck down the Keating-Owen Act as unconstitutional. The Court held that while Congress has the power to regulate interstate commerce, “the
manufacture of goods is not commerce.” Furthermore, the Court reasoned, the Tenth Amendment made clear that powers not delegated to the national government remained with the states or the people.
The power “to regulate the hours of labor of children in factories and mines within the states, is a purely state authority.” The Court noted that all states had some restrictions on child labor already. Even if
states with very restrictive child labor laws were at an economic disadvantage, Congress did not have the constitutional power to impose uniform rules for the country.
The ruling in this case was overturned in US v. Darby Lumber Company (1941) where the Court interpreted the Commerce Clause as giving Congress the power to regulate labor conditions. In this
unanimous decision, the Court upheld the Fair Labor Standards Act, asserting, “While manufacture is not of itself interstate commerce the shipment of manufactured goods interstate is such commerce
and the prohibition of such shipment by Congress is indubitably a regulation of the commerce.”
Comprehension and Critical Thinking Questions
1.
2.
3.
4.
5.
What was the Keating-Owen Act of 1916?
Why did Dagenhart believe it was unconstitutional?
How did the Supreme Court rule in Hammer v. Dagenhart (1918)?
The majority stated, “It must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not
expressly delegated to the National Government are reserved.” Critics of the ruling point out that the Tenth Amendment does not in fact use the word “expressly.” Why might that be
important?
How did the Court interpretation of the Commerce Clause differ in the case of US v. Darby Lumber Company (1941)? Do you agree with the Court’s reasoning?
Answers
1.
2.
3.
4.
5.
A federal law prohibiting the interstate sale of goods made in factories which employed child labor.
He believed it exceeded Congress’s authority under the Commerce Clause, it violated the Tenth Amendment’s protection of state powers, and that it deprived him of liberty and property
under the Fifth Amendment.
The Court struck down the Keating-Owen Act as unconstitutional.
The Tenth Amendment would have created a more limited government had it used the word “expressly.” Though the Constitution creates a government of enumerated powers, lawmakers
and judges have understood there to be implied powers of the federal government – powers not expressly listed but which can be reasonable understood to come from the powers which
are listed.
The Court argued that while production was not commerce, the federal regulation was in fact a regulation of commerce. Accept reasoned answers.
Last Edited On 1/22/2010 3:56:00 PM
11.23.09 - Allegheny County v. ACLU (1989)
Synopsis:
For a pdf version of this eLesson with questions and answers on separate pages, please click here.
Twenty years ago, the Court decided the First Amendment case of Allegheny County v. ACLU (1989), holding (5-4) that a crèche with the words “Gloria in Excelsis Deo” (Glory to God in the highest)
displayed on the grand staircase of the county courthouse violated the First Amendment’s Establishment Clause. In the same case, six justices Court held that a joint Menorah-Christmas tree display outside
the city-county building did not violate the Establishment Clause. This Landmark Supreme Court Cases and the Constitution eLesson encourages students to analyze the facts and reasoning in this
decision.
Resources

http://www.oyez.org/cases/1980-1989/1988/1988_87_2050

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0492_0573_ZO.html

http://www.constitutionbee.org/user/StudentGuide.aspx?id=783
Activity
The city of Pittsburgh, Pennsylvania had several traditional holiday displays around the winter season. A crèche (nativity scene) donated to the city by a Roman Catholic group was placed on the staircase of
the County Courthouse, the county’s seat of government. Above the nativity was an angel with a banner that read “Gloria in Excelsis Deo” (Glory to God in the highest).” Another display outside another
government building and about a block from the County Courthouse included a Menorah and a Christmas tree.
The crèche on the grand staircase of the County Courthouse:
The Menorah-Christmas tree display outside the City-County Building:
The ACLU, together with seven residents of Pittsburg, filed suit against the city challenging the constitutionality of the displays. They argued that the displays violated the First Amendment’s Establishment
Clause, which says “Congress shall make no law respecting an establishment of religion….”
The Establishment Clause was intended to prevent the government from establishing a national church, or from interfering in the affairs of state churches. Over time, the Supreme Court has that established
various “tests” when government practices are challenged. One is called the “Endorsement Test:” the Supreme Court asks if a practice endorses religion. If the answer is “yes,” then the Supreme Court holds
that the practice violates the Establishment Clause.
The Court agreed that the crèche was an unconstitutional violation of the Establishment Clause. The ruling asserted, “The government’s use of religious symbolism is unconstitutional if it has the effect of
endorsing religious beliefs, and the effect of the government’s use of religious symbolism depends upon its context.” In this case, the Court reasoned, the crèche stood alone and contained an unmistakable
religious message. “The government may acknowledge Christmas as a cultural phenomenon, but, under the First Amendment, it may not observe it as a Christian holy day by suggesting that people praise
God for the birth of Jesus.”
On the other hand, the Court held that the Menorah and Christmas tree display did not violate the Establishment Clause. The opinion was careful to note that the display was not constitutional simply
because it included two religions. Rather, it was constitutional because it celebrated the two holidays using what the Court viewed as secular symbols. This made the display, in the Court’s view,a
“recognition” of the two holidays, rather than an “endorsement” of them.
Comprehension and Critical Thinking Questions
1.
What holiday decorations were challenged in the case of Allegheny County v. ACLU (1989)?
2.
How did the Supreme Court rule?
3.
After looking at the pictures of the two displays, do you agree with the Court’s ruling? What is your constitutional reasoning?
4.
Should the judicial system create “tests” to determine whether government practices violate the First Amendment or is that a job that belongs to Congress? Explain.
5.
In his dissenting opinion, Justice Kennedy accused the majority in this case of having a “latent hostility” towards religion. How would you respond to that assertion?
Answers
1.
A creche displayed on the Country Courthouse staircase, and a joint Christmas tree-Menroah display in front of another government building.
2.
The Court ruled that the creche display was an unconstitutional violation of the First Amendment’s Establishment Clause because it amounted to an endorsement of religion. The joint
Menorah-Christmas tree display, however, was a recognition of the two holidays and not an endorsement of religion, and was upheld.
3.
Accept reasoned answers.
4.
Some students may say that the Courts should interpret the law and not write it; therefore for the Court to create “tests” to apply in their decisions is not acceptable under the Constitution’s
separation of powers. Others may say that it is the role of the court’s to interpret the law and the Endorsement Test is one example of that type of interpretation.
5.
Accept reasoned answers.
Last Edited On 11/23/2009 2:51:00 PM
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10.26.09 - Texas v. Johnson (1989)
Synopsis:
To view this lesson in PDF format with questions and answers on separate pages, please click here.
This Landmark Supreme Court Cases and the Constitution eLesson focuses on a case involving expressive conduct, and
what is for many a deeply cherished symbol of America—the US flag. In a closely divided (5-4) ruling, the Supreme Court
held that states could not forbid burning the US flag in protest, because doing so would violate the freedom of speech
protected by the First Amendment.
Resources
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http://www.oyez.org/cases/1980-1989/1988/1988_88_155/
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http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/texasvjohnson.html

http://www.constitutionbee.org/user/StudentGuide.aspx?id=787
Activity
During the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson joined an organized political
protest in opposition to Reagan administration policies and some Dallas-based corporations. Demonstrators marched
through the streets, chanting their message. As the march progressed, a fellow protestor handed Johnson an American
flag that had been taken from a flag pole at one of their protest locations.
Upon reaching the Dallas City Hall, Johnson doused the flag with kerosene and set it ablaze. Johnson and his fellow
demonstrators circled the burning flag and shouted “America, the red, white, and blue, we spit on you.” No one was hurt
or threatened with injury by the act, but many who witnessed it were deeply offended. Johnson was arrested, charged,
and convicted of violating a Texas law that made it a crime to desecrate a “venerable object.” He received a sentence of
one year in prison and was ordered to pay a $2,000 fine.
Johnson appealed his conviction, and his eventually went to the Supreme Court. Johnson argued that the Texas flag
desecration statute violated the First Amendment, which says “Congress shall make no law … abridging the freedom of
speech … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The state of Texas argued that it had an interest in preserving the flag as a symbol of national unity. The Court had to
consider: Are there certain symbols that are so widely cherished and understood to convey certain meanings that the
government can regulate their use?
The Court agreed with Johnson (5-4) and struck down the Texas statute. Burning a US flag in protest was expressive
conduct protected by the First Amendment. “The First Amendment literally forbids the abridgment only of ‘speech,’ but we
have long recognized that its protection does not end at the spoken or written word…. If there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable.…”
Comprehension and Critical Thinking Questions
1.
Why was Joey Johnson arrested?
2.
What were the arguments on each side?
3.
Do you agree with the Court’s ruling that the First Amendment protects expressive conduct? Why or why
not?
4.
In his dissenting opinion, Chief Justice Rhenquist argued that Johnson’s right to express his views had
not been abridged. “It was Johnson’s use of this particular symbol, and not the idea that he sought to
convey by it or by his many other expressions, for which he was punished.…Surely one of the high
purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly
offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning.” How
would you respond to this argument?
Answers
1.
Johnson was arrested for desecrating an American flag in violation of Texas law.
2.
Johnson argued that burning a US flag in protest was protected by the First Amendment, which says
government cannot abridge individuals’ freedom of speech. Texas argued that it had a rightful interest in
preserving the American flag because it was a symbol of national unity.
3.
Some students may agree with the Court that the First Amendment protects expressive conduct, because
the purpose of the First Amendment is to ensure that the people could participate in self-government by
sharing their political views peacefully. If government can ban expressive conduct, they could severely
limit the ways individuals can bring their messages to others. Others may disagree with the Court,
reasoning that the amendment protects “speech” and not conduct. Governments must be able to
maintain civility and order, and if all conduct with an expressive purpose must be allowed, that would be
impossible.
4.
Accept reasoned answers.
Last Edited On 10/26/2009 11:43:00 AM
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9.28.09 - Owasso v. Falvo (2001)
Synopsis:
For a PDF with questions and answers on separate pages, please click here.
Our first Landmark Supreme Court Cases and the Constitution of the new school year looks at a case involving student
privacy rights. In a unanimous opinion, the Supreme Court held that peer-grading was not a violation of students’ privacy
as protected by the Family Educational Rights and Privacy Act of 1974. Furthermore, the Court reasoned that to interpret
the law otherwise would have drastically altered the balance of federalism.
Resources
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http://www.oyez.org/cases/2000-2009/2001/2001_00_1073
http://www.constitutionbee.org/user/StudentGuide.aspx?id=804
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html
Narrative
Kristja J. Falvo, a parent with children attending Owasso Independent School District No. I—011, outside Tulsa,
Oklahoma, was concerned. Her children told her they felt embarrassed about a grading practice their teachers used in
class. They had to exchange papers and grade them according to their teachers’ instructions, and then report scores
either aloud or in private. Even though they could report their grades confidentially, at least one other student knew what
their grade had been.
The Family Educational Rights and Privacy Act of 1974 (FERPA) withholds federal funding from schools if education
records maintained by the school are released without parents’ written consent. Falvo believed that the practice of peer
grading should violated this law, because the scores on the papers were “education records.” She petitioned the school to
end the practice and when the school refused, she sued. Her case eventually went to the Supreme Court.
The school district argued that the law only covered records that would go in a student’s permanent file such as final
grades, grade point averages, standardized test scores, attendance records, counseling records, and disciplinary records;
not scores on individual assignments.
The Supreme Court agreed with the school and unanimously held that the practice of peer-grading did not violate FERPA.
“[S]tudent graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say
they maintain the papers in the same way the registrar maintains a student’s folder in a permanent file.”
The Court also noted that peer-grading was itself an educational experience that teachers and schools were within their
power to select. To strike down this power would drastically alter the balance of federalism and the distribution of powers
between the national and state governments. If Falvo’s reasoning had won the case, the Court noted, “if a teacher…put a
happy face, a gold star, or a disapproving remark on a classroom assignment, federal law [would] not allow other students
to see it. We doubt Congress meant to intervene in this drastic fashion with traditional state functions.”
Comprehension and Critical Thinking Questions
1.
Why did Falvo file suit against Owasso Independent School District No. I—011?
2.
What were the arguments on each side, and how did the Supreme Court rule?
3.
The Court reasoned, “Under [Falvo’s] interpretation…, the federal power would exercise minute control
over specific teaching methods and instructional dynamics in classrooms throughout the country.” How
does this reasoning reflect the constitutional principle of federalism?
4.
Do you agree with the Court’s ruling? Why or why not?
Answers
1.
2.
3.
4.
Falvo was concerned that her children were embarrassed by the process of peer-grading and she
believed that the practice violated student privacy rights protected under FERPA.
Falvo argued that grades were educational records covered under FERPA, while the school argued that
FERPA only covered information that would be maintained in a students’ permanent file; The Court ruled
unanimously for the school district.
The Tenth Amendment states that all powers not given to the federal government by the Constitution
remain with the states and the people. Though Congress can use its spending power to encourage
certain policies (as in the case of FERPA which set requirements for schools to receive federal funding),
it may not simply ban certain practices in classrooms. For the national government to take on this power
would break the boundaries between national and state power, and limit school districts’ and individual
teachers’ rights to choose the instructional practices they believe work best with their students.
Accept reasoned answers.
Last Edited On 9/25/2009 2:22:00 PM
Hiibel v. 6th Judicial District Court of Nevada
Synopsis:
*For a PDF copy of this lesson with questions and answers on separate pages, please click here.
This month’s Landmark Supreme Court Cases and the Constitution eLesson focuses on the rights of the accused case Hiibel v. Sixth Judicial District Court of Nevada (2003). In this case, the Supreme Court
upheld Nevada’s “stop and identify” statute, reasoning that requiring individuals to identify themselves to police officers investigating crimes was not unreasonable. The law did not violate the Fourth
Amendment prohibition on unreasonable searches, nor the Fifth Amendment right against self-incrimination.
RESOURCES
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


http://www.oyez.org/cases/2000-2009/2003/2003_03_5554/
http://supct.law.cornell.edu/supct/html/03-5554.ZO.html
http://constitutionbee.org/user/StudentGuide.aspx?id=793
http://constitutionbee.org/user/StudentGuide.aspx?id=794
ACTIVITY
Larry Hiibel looked up from where he was sitting on the side of Grass Valley Road and saw the police officer approaching. The officer parked his car and walked along the gravel shoulder towards him. Hiibel
was sitting next to his truck, and a young woman was sitting inside it. The Sherriff’s Department had received a call from a witness reporting that a man had assaulted a woman in a red and silver GMC truck
on Grass Valley Road. Hiibel’s truck fit that description. There were also skid marks in the gravel which made it appear the truck had stopped suddenly.
The officer told Hiibel that someone had reported a fight between a man and a woman, and asked Hiibel if he had any identification on him. Hiibel refused to show ID or give his name, saying he had done
nothing wrong. He began to taunt the police officer. After asking for identification eleven times, the officer warned Hiibel that he would be arrested if he refused to identify himself. Hiibel continued to refuse,
and was arrested. He was charged with violating Nevada’s “stop and identify” statute. This law gave police the power to require a suspect to give his name. Hiibel was fined $250.
Hiibel argued that his arrest and the Nevada law were unconstitutional violations of the Fourth and Fifth Amendments. The Fourth Amendment protects individuals’ right to be “secure in their persons, papers
and effects against unreasonable searches,” and the Fifth Amendment affirms that no one can be compelled (forced) to be a witness against himself.
His case eventually went to the Supreme Court. The Court ruled (5-4) that Nevada did not violate Hiibel’s Fourth and Fifth Amendment rights. “There is no question that the initial stop was based on
reasonable suspicion, satisfying the Fourth Amendment,” the Court held. Further, Hiibel’s right against self-incrimination was not violated either. The Court reasoned, “disclosure of his name presented no
reasonable danger of incrimination.” His name alone could not possibly incriminate Hiibel (give evidence of his guilt). Therefore, it was not a violation of his rights to require him to reveal it.
COMPREHENSION AND CRITICAL THINKING QUESTIONS
1.
What information did police ask Larry Hiibel, and why was he arrested?
2.
On what grounds did Hiibel challenge his conviction?
3.
How did the Supreme Court rule?
4.
Dissenting in the case, Justice Stevens argued, “The [majority] reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him…But why else
would an officer ask for it?... A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law
enforcement databases.” Do you agree with his assessment of the case? Why or why not?
ANSWERS
1.
his name; refusing to give his name
2.
Hiibel argued that the Nevada’s “stop and identify” law unconstitutionally violated the Fourth Amendment prohibition on unreasonable searches, as well as the Fifth Amendment right against
self-incrimination.
3.
The Court ruled for Nevada. The officer’s question was clearly based on reasonable suspicion that a crime had been committed, so there was no Fourth Amendment violation. There was no
Fifth Amendment violation either, because his name was not incriminating.
4.
Accept reasoned answers.
EXTENSIONS
A. Have students learn more about the recent Supreme Court case Arizona v. Grant (2009). How did the Supreme Court interpret the Fourth Amendment in this recent case?
Students can begin their research at:
http://www.oyez.org/cases/2000-2009/2008/2008_07_542
B. Have students analyze the evolution of the Court’s Fourth Amendment interpretation by studying a number of cases involving police power to search. Have students place cases in a T-chart—cases which
increased police power on one side, and cases which limited police power on the other. Suggested cases:
Mapp v. Ohio (1961)
Escobedo v. Illinois (1964)
Miranda v. Arizona (1966)
Terry v. Ohio (1968)
Nix v. Williams (1984)
Knowles v. Iowa (1998)
Wyoming v. Houghton (1999)
Kyllo v. United States (2001)
Groh v. Ramirez (2004)
Georgia v. Randolph (2006)
Hudson v. Michigan (2006)
Arizona v. Grant (2009).
Students can begin their research at:
http://www.billofrightsinstitute.org/teach/freeresources/landmarksupremecourtcases/#CrimPro
Last Edited On 4/24/2009 4:20:00 PM
Category:
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March, 2009 - Taylor v. Louisiana (1975)
Synopsis:
*If you would like a copy of this eLesson with Questions and Answers on separate pages, please click here.
In commemoration of Women’s History Month, this Landmark Supreme Court Cases and the Constitution eLesson focuses on the landmark
case of Taylor v. Louisiana (1975). In this case, the Supreme Court held that states could not systematically exclude women from juries. The
constitutional issue in the case was not the right of individual women to serve as jurors, but the right of accused persons to be tried by a jury
made up of a “representative cross section of the community.”
RESOURCES

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=419&invol=522

http://www.constitutionbee.org/user/StudentGuide.aspx?id=800

Kerber, Linda K. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship. New York: Hill and Wang,
1999.
ACTIVITY
Louisiana resident Billy Taylor was found guilty of kidnapping. He challenged his conviction because there were no women on his jury. It was
the 1970s, and under the state’s constitution, women were never called for jury duty unless they had written a letter to the state asking to be
considered for service.
The Sixth Amendment protects the right of criminal defendants to a trial “by an impartial jury.” Taylor argued that by systematically excluding
women from jury pools, Louisiana had deprived him of that Sixth Amendment right (applied to the states by the Fourteenth Amendment). He
did not argue that his particular jury had been biased or prejudiced against him. The state of Louisiana argued that Taylor did not have
grounds to object to his male-only jury since he was a male. Further, women served special roles in society that would be particularly
disrupted by jury duty. This was why they were excluded unless they volunteered. His case eventually went to the US Supreme Court.
The Supreme Court agreed with Taylor and ordered Louisiana to re-try him. The Court also overturned Louisiana’s jury selection system as
an unconstitutional violation of the Sixth and Fourteenth Amendments. The Court ruled, “The selection of a…jury from a representative cross
section of the community is an essential component of the Sixth Amendment right to a jury trial.”
The Court cited that fact that fifty-three percent of the population eligible for jury duty was female. Yet, the Court observed, only “only a very
few women, grossly disproportionate to the number of eligible women in the community, [were] called for jury service.” The Court concluded
that excluding women from juries deprived defendants of the “commonsense judgment of the community” that juries were designed to impart.
Finally, the “distinctive” roles that women played in society was a “rational” reason for the state’s jury system, but individual exemptions from
jury duty could always be made. It was invalid for Louisiana to suggest that “it would be a special hardship for each and every woman to
perform jury service or that society cannot spare any women from their present duties.”
COMPREHENSION AND CRITICAL THINKING QUESTIONS
1.
Why did Taylor challenge his conviction?
2.
What were the arguments on each side?
3.
How did the Supreme Court rule, and why?
4.
Dissenting, Associate Justice Rehnquist argued that Louisiana’s jury system was certainly outdated, but not unconstitutional.
“[Without] any suggestion that [Taylor’s] trial was unfairly conducted, or that its result was unreliable, I would not require
Louisiana to retry him…” How would you respond to Justice Rehnquist’s argument?
ANSWERS
1.
The jury that convicted him of kidnapping was made up of all males; women were excluded from jury duty unless they
volunteered.
2.
Taylor argued that his Sixth and Fourteenth Amendment rights to an impartial jury had been violated. Louisiana argued that
Taylor was a male and therefore could not object to an all-male jury, and that its system of jury selection was intended to
accommodate the special role women played in society.
3.
Interpreting the Sixth Amendment, the Court held, “The selection of a…jury from a representative cross section of the
community is an essential component of the Sixth Amendment right to a jury trial.” A system which resulted in women being
effectively excluded denied defendants the right to the “commonsense judgment of the community” provided by a jury.
4.
Accept reasoned answers.
February, 2009 - Edwards v. South Carolina (1963)
Synopsis:
*For a PDF of this lesson with Questions and Answers on separate pages, please click here.
This month’s Landmark Supreme Court Cases and the Constitution focuses on the Civil Rights Movement case Edwards v. South Carolina (1963). South Carolina arrested one hundred eighty seven
peaceful segregation protestors for creating a “breach of the peace.” The Supreme Court overturned their conviction, holding that the only reason they had been arrested was the expression of an unpopular
viewpoint—expression protected by the First Amendment.
RESOURCES

http://www.oyez.org/cases/1960-1969/1962/1962_86/

http://law.jrank.org/pages/12629/Edwards-v-South-Carolina.html

http://www.constitutionbee.org/user/StudentGuide.aspx?id=789
ACTIVITY
“I am proud to be a Negro” read one man’s sign. A woman carried another saying, “Down with segregation.” The protestors walked in groups of fifteen, single file or two-by-two, through the South Carolina
state house grounds in groups of fifteen. Unhappy with the segregation laws in South Carolina, they wished to “protest to the citizens…[and] Legislative Bodies of South Carolina, our feelings and our
dissatisfaction with the present condition of discriminatory actions against Negroes in general…”
Two to three hundred people came to watch, making the crowd as large as 500 people. There was no violence, and no one made any threats of violence. Traffic was slowed but kept moving. Fearing
disorder and violence, police told the protestors they had fifteen minutes to leave or be arrested. In response, the protestors refused to leave. They began singing patriotic and religious songs, clapping their
hands, and stomping their feet. After fifteen minutes passed, the police arrested all 187 and took them to jail. They were convicted of a “breach of the peace.”
The protestors believed their First Amendment rights had been violated. The First Amendment protects the “right of the people peaceably to assemble, and to petition the government for a redress of
grievances.” South Carolina argued that the law against breach of the peace applied to the protest, and that officers only arrested them when they feared violence was imminent (about to happen). The case
eventually went to the Supreme Court.
The Supreme Court ruled for the protestors and overturned their convictions. The Court held that South Carolina had violated the protestors’ First Amendment rights to peaceful expression, assembly, and
petition. These rights applied to the states through the Fourteenth Amendment’s due Process Clause. The Court emphasized that the protest had been peaceful and law-abiding. “If…the petitioners
had…violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case.” Rather, they had
been arrested and convicted for expression unpopular views. The evidence “showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the
majority of the community to attract a crowd and necessitate police protection…. The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.”
COMPREHENSION AND CRITICAL THINKING QUESTIONS
1.
Why did 187 protestors gather at the South Carolina State House in this case?
2.
What did police tell the protestors, and how did they react?
3.
How did the Supreme Court rule in Edwards v. South Carolina (1963)? Do you believe the ruling was correct?
4.
Dissenting in the case, Justice Clark argued, “The question…seems to me whether a State is constitutionally prohibited from enforcing laws to prevent breach of the peace in a situation
where city officials in good faith believe, and the record shows, that disorder and violence are imminent, merely because the activities constituting that breach contain claimed elements of
constitutionally protected speech and assembly. To me, the answer under our cases is clearly in the negative.” Do you agree with his assessment of the case? Why or why not?
Extension
Have students select one quotation from the list below and write two or three paragraphs explaining how it illustrates the significance of the First Amendment.
“Speech is often provocative and challenging. It may strike at prejudices and preconceptions, and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . .
is . . . protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
Terminiello v. Chicago (1949)
The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our constitutional system. Stromberg v. California (1931)
We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an
open market is a nation that is afraid of its people. –President John F. Kennedy, 1963
The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech –Supreme Court Justice Anthony Kennedy, 1992
Without freedom of thought there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech. –Benjamin Franklin, 1722
ANSWERS
1.
To protest to South Carolina citizens and lawmakers that they wanted an end to segregation laws.
2.
They had fifteen minutes to leave or be arrested. The protestors refused to leave and instead sang songs, clapped their hands and stomped their feet.
3.
The Court ruled for the protestors and overturned their convictions. The Court held that South Carolina had violated their First Amendment rights. The First Amendment was applicable to the
states through the Fourteenth Amendment. Accept reasoned answers. Some students will say that given that the protestors did not break any reasonable law regarding blocking of traffic or
times that the State House was open to citizens for demonstrations, their peaceful expression was protected by the First Amendment. The protestors were marching peacefully and in an
orderly fashion when they were told to leave and threatened with arrest. Others will say that the arrest was justified because of reasonable police concerns about violence. The crowd was
pushing 500, and the response of singing, clapping and foot-stomping was boisterous and could have reasonably led officers to fear violence was imminent.
4.
Accept reasoned answers.
Last Edited On 2/23/2009 4:27:00 PM
Marbury v. Madison (1803)
Synopsis:
For a PDF with questions and answers on separate pages, please click here.
Many citizens take it for granted today that one power of the Supreme Court is to review the constitutionality of laws. This power, known as “judicial review,” was not firmly established until fifteen years into
the Court’s existence, and was articulated by Chief Justice John Marshall in the landmark case we spotlight this month: Marbury v. Madison (1803). In essence, Marbury is the landmark case that made
almost all other landmark cases possible.
RESOURCES
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http://constitutionbee.org/user/StudentGuide.aspx?id=688
http://constitutionbee.org/user/StudentGuide.aspx?id=773
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=5&invol=137
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm
ACTIVITY
Marbury v. Madison (1803) is a landmark case because it was the first time that the Supreme Court declared an act of Congress (a section of the Judiciary Act of 1789) to be unconstitutional. This is an
exercise of the power of judicial review—the power of the federal courts to interpret laws in light of the Constitution.
In his opinion, Chief Justice John Marshall established the Supreme Court as an equal partner in government with the executive and legislative branches. Marshall emphasized that the Constitution was the
supreme law of the land. More importantly, the Supreme Court became the final authority on what the Constitution means: “It is emphatically the province and duty of the judicial department to say what the
law is.”
Marshall continued, “[T]he Constitution of the United States confirms and strengthens the principle… that a law repugnant to the Constitution is void.” The Supreme Court, further, was the proper authority to
decide if a law is in conflict with the Constitution. He called this responsibility “the very essence of judicial duty.”
The Supreme Court did not declare another act of Congress unconstitutional for more than fifty years, and the power of judicial review was used sparingly until the beginning of the twentieth century. Since
then, as more and more state laws became subject to federal review (as a result of the Fourteenth Amendment and the incorporation of the protections of the Bill of Rights against the states), the Supreme
Court has been given frequent opportunities to exercise its power of constitutional review.
COMPREHENSION AND CRITICAL THINKING QUESTIONS
1.
Why is Marbury v. Madison (1803) a landmark case?
2.
Section 2 of Article III of the Constitution begins, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution…” Why do you believe John Marshall referred
to this section of the Constitution in his opinion?
3.
Supreme Court Chief Justice William Rehnquist called Marbury “the fountainhead of all of our present-day constitutional law” in a 2001 speech. What did he mean?
4.
Thomas Jefferson wrote in 1820, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed…our judges are as honest as other men
and not more so. They have with others the same passions for party, for power, and…privilege...” What was Jefferson’s concern? Do you believe judicial review gives the Supreme Court too
much power?
ANSWERS
1.
It was the first time the Supreme Court declared an act of Congress unconstitutional. In so doing, the doctrine of judicial review was established.
2.
Article 2 of Section III of the Constitution spells out the power and jurisdiction of the Supreme Court. The words cited by Chief Justice Marshall address the question of whether the Supreme
Court can interpret the Constitution. If judicial power extends to cases arising under the Constitution, then, reasons Marshall, the Court must have the power to interpret the Constitution so
that it can apply it.
3.
Chief Justice Rehnquist was referring to the precedent set by Marbury v. Madison and the responsibility assumed by the Supreme Court. Although many of the Founders expected that the
federal courts would be the ultimate judges of the constitutionality of laws, they did not make this expectation explicit in the Constitution. John Marshall assumed that the courts had this
implied power, and he made it explicit in his opinion in Marbury. All subsequent judicial reviews were based upon Marshall’s precedent.
4.
Some students will disagree with Jefferson, pointing out that the Constitution clearly limits the powers of each branch of government. Justices are appointed for life, minimizing the danger of
influence by “party and privilege.” They may say the nomination and confirmation process for Supreme Court Justices, which involve the executive and legislative branches, also balance the
power of judicial review. Other students may agree with Jefferson, and ask if the people can truly govern themselves if unelected judges can overturn laws enacted by the people or their
representatives. Others may object to what is commonly referred to as judicial activism: courts making public policy as a result of their rulings, rather than allowing the legislatures to decide
these issues.
Last Edited On 11/21/2008 1:46:00 PM
District of Columbia v. Heller (2008)
Synopsis:
For a pdf version of this lesson with Questions and Answers on different pages, please click here.
The Supreme Court handed down a landmark ruling at the end of last year’s term with the case District of Columbia v. Heller. Richard Heller challenged the District’s law banning virtually all handguns on
Second Amendment grounds. The Court agreed with Heller, finding the ban unconstitutional and holding that the Second Amendment protects an individual right to keep suitable weapons at home for selfdefense unconnected to militia service. The impact of this decision will continue to be analyzed for many years.
RESOURCES
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http://constitutionbee.org/user/StudentGuide.aspx?id=791
http://www.oyez.org/cases/2000-2009/2007/2007_07_290/
http://www.law.cornell.edu/supct/html/07-290.ZS.html
http://fora.tv/2008/07/25/Winning_the_DC_Gun_Ban_Case_The_Attorneys_Discuss
ACTIVITY
In 2008, the Supreme Court did something it had not done in seventy years: it ruled on the meaning of the Second Amendment. Furthermore, District of Columbia v. Heller (2008) was the first time the
Supreme Court interpreted the Second Amendment in terms of what it meant for an individual’s right to possess weapons for private uses such as self-defense.
The District of Columbia had one of the strictest gun laws in the country. It included a ban on virtually all handguns. Furthermore, long guns had to be kept unloaded, and disassembled or trigger-locked.
Richard Heller believed the law made it impossible for him to defend himself in his home. He also believed that the law violated the Second Amendment.
The District of Columbia argued that the opening phrase of the amendment, “A well regulated militia, being necessary to the security of a free state,” known as the prefatory clause, limited the “right of the
people” to have weapons only in connection with militia service. The city also pointed out that the law did not ban all guns, and that it was a reasonable way to prevent crime.
The Court agreed with Heller and overturned the District’s law. The Court reasoned that the prefatory clause gave one reason for the Second Amendment, but it did not limit the right listed in the operative
clause—the second part of the amendment—to own weapons only for militia service. “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient
right…” The Court also reasoned that elsewhere in the Constitution, such as the First, Fourth, and Ninth Amendments, the phrase “the right of the people” is used only to refer to individual rights—that is,
rights held by people as individuals. It is this phrasing that is used in the operative clause of the Second Amendment.
Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued
that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a
reasonable restriction.
One thing is certain. Like all other rights in the Bill of Rights (such as freedom of speech and press), the right to keep and bear arms has limits. Working out the limits of the Second Amendment’s protection
will continue to challenge society.
COMPREHENSION AND CRITICAL THINKING QUESTIONS
1.
Read the Second Amendment and underline the prefatory clause. Circle the operative clause.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
2.
Why did Richard Heller challenge the District of Columbia’s law banning virtually all handguns?
3.
What arguments did the District of Columbia make in support of the law’s constitutionality?
4.
How did the Supreme Court rule, and what was its reasoning?
5.
Do you agree with the Court’s ruling? Why or why not?
ANSWERS
1.
A well regulated militia, being necessary to the security of a free state, (the right of the people to keep and bear arms, shall not be infringed.)
2.
Richard Heller believed the law made it impossible for him to defend himself in his home. He also believed that the law violated the Second Amendment.
3.
The District argued that the opening phrase of the amendment, known as the prefatory clause, secured the “right of the people” to have weapons only in connection with militia service. The
city also pointed out that the law did not ban all guns, and that it was a reasonable way to prevent crime.
4.
The Court agreed with Heller and overturned the District’s law. The Court reasoned that the prefatory clause helped explain one reason for but did not limit the right of the people to keep and
bear arms; the “right of the people” is used elsewhere in the Constitution to refer to individual rights; the right to own weapons for self-defense is a right all people are born with.
5.
Accept reasoned answers.
Last Edited On 9/22/2008 10:12:00 AM
03.24.08 - Gideon v. Wainwright (1963)
Synopsis:
*For a version of this activity with questions and answers on different pages, please click here.
This month we spotlight the landmark criminal procedure case Gideon v. Wainwright (1963). The individual at the center of this case, Clarence Gideon, sent a handwritten petition to the Supreme Court
challenging his conviction for breaking into a Florida pool hall. He argued that he did not have a fair trial, because he had not been given a lawyer to help him with his defense. The Court held that the Sixth
Amendment’s protection of the right to counsel meant that the government must provide an attorney for accused persons who cannot afford one.
RESOURCES
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http://citizenbee.org/user/StudentGuide.aspx?id=869
http://citizenbee.org/user/StudentGuide.aspx?id=869
http://www.oyez.org/cases/1960-1969/1962/1962_155/
ACTIVITY
At the time the Constitution was adopted, British courts denied lawyers to individuals charged with treason or felonies. People accused of criminal misdemeanors, however, were provided lawyers. The
American colonies (and, later, the states) rejected this practice. Most of the original thirteen states allowed defendants in all cases to have lawyers. The Sixth Amendment, ratified in 1791, states, “In all
criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defence.” Through the years, the Supreme Court has heard several cases about whether poor criminal
defendants had a right to a lawyer at public expense, or whether the Sixth Amendment only meant that the government could not stop accused persons from hiring one.
In 1961, Clarence Earl Gideon was arrested in Florida for breaking into a Panama City pool hall with the intent to steal money from the vending machines. This was a felony. When Gideon appeared in court,
his request for a court-appointed lawyer was denied. Florida law only required lawyers for defendants charged with capital offenses. Gideon had no choice but to defend himself at his trial. He was found
guilty, and sentenced to five years in prison.
While in prison, Gideon made frequent use of the prison library. With the knowledge he gained there, along with the help of a fellow inmate with a legal background, he submitted a hand-written petition to the
Supreme Court. In his petition, he challenged the constitutionality of his conviction, as he had not been able to have the assistance of counsel for his defense.
The Supreme Court agreed with Gideon that he had not been given a fair trial, and overturned his conviction. The Court’s vote was unanimous. The Court reasoned that the right to counsel was
“fundamental.” The Court continued, “in our…system of justice, any person…too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious
truth.…[L]awyers in criminal courts are necessities, not luxuries.”
QUESTIONS
1.
How does the Sixth Amendment protect accused person’s right to counsel?
2.
What happened when Clarence Gideon requested an attorney to assist with his defense against changes of breaking into a Florida pool hall?
3.
Why did Gideon challenge his conviction?
4.
How did the Supreme Court rule? Do you agree with the ruling? Why or why not?
5.
What, if anything, does the Court’s ruling in Gideon reveal about the American commitment to justice and the rule of law?
ANSWERS
1.
The Sixth Amendment states that in all criminal trials, the accused has the right to have the assistance of counsel for his defense.
2.
His request was denied.
3.
He challenged his conviction because he had not had the assistance of counsel for his defense.
4.
The Court agreed with Gideon and unanimously overturned his conviction. The Court reasoned that the right to counsel was fundamental, and that lawyers in criminal cases were necessities,
not luxuries. Answers will vary.
5.
Students may say that the Court’s decision reveals the American commitment to fairness in criminal trials. They may point out, as the Court did, that people’s ability to defend themselves
adequately in court should not depend on their wealth. If a person is convicted, it should be the result of a fair trial in which both sides were represented, and not a trial in which the state
spent vast sums of money while the defendant was too poor to even hire a lawyer.
Last Edited On 3/24/2008 11:00:00 AM
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2.25.08 - Gonzalez v. Raich (2004)
Synopsis:
*For a version of this lesson with questions and answers on separate pages, click here*
This month we spotlight the landmark federalism case Gonzalez v. Raich (2004). In this case, a California law legalizing marijuana for medical use was invalidated by a federal law which banned possession of
marijuana. Was the federal law a constitutional exercise of Congress’s power under the Commerce Clause?
RESOURCES
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http://citizenbee.org/user/StudentGuide.aspx?id=765
http://citizenbee.org/user/StudentGuide.aspx?id=804
http://citizenbee.org/user/StudentGuide.aspx?id=781
http://www.law.cornell.edu/supct/html/03-1454.ZS.html
http://www.oyez.org/cases/2000-2009/2004/2004_03_1454/
ACTIVITY
California voters passed the Compassionate Use Act in 1996. This law made California the ninth state to legalize marijuana for medical use. It became legal for “seriously ill” people to possess or grow a small
amount of marijuana with the recommendation of a doctor. Angel Raich was a California resident. She had an inoperable brain tumor, nausea, and other disabling disorders. Marijuana eased her symptoms.
Raich’s doctor testified that stopping the marijuana would cause Raich “excruciating pain and could very well prove fatal.”
Raich was able to use marijuana under the California law. However, a federal law conflicted with the state law. The federal 1970 Controlled Substances Act—among many other regulations—banned possession
of marijuana. This law was passed under Congress’s authority under the Commerce Clause. In Article I, Section 8 of the Constitution, he Commerce Clause gives Congress the power to “To regulate
commerce…among the several states…”
Raich and several other seriously ill residents of California challenged the constitutionality of this part of the federal Controlled Substances Act. They claimed that growing marijuana for personal, medical use was
not related to interstate commerce and therefore Congress had no authority to ban it. Further, they argued that the Tenth Amendment said states kept the power to make laws about drug use. The Tenth
Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The case eventually went to the Supreme Court. The Court upheld the Controlled Substances Act and affirmed Congress's power to ban local use and cultivation of marijuana. The Court reasoned, “The
exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.” Therefore, the Court argued, the “aggregate impact on the national market” would be
“substantial,” and within Congress’s power to regulate.
QUESTIONS
1.
What was the Compassionate Use Act of 1996?
2.
Why was this law in conflict with the federal 1970 Controlled Substances Act?
3.
Why did Raich believe a portion of the Controlled Substances Act was unconstitutional?
4.
In his dissent Justice Thomas argued that “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had
no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything….” Do you agree? Why or why not?
5.
Do you believe the Court decided this case correctly? Why or why not?
ANSWERS
1.
This California law permitted the possession and growing of small amounts of marijuana for personal, medical use.
2.
The federal Controlled Substances Act (in part) banned possession of marijuana.
3.
She believed Congress had exceeded its authority under the Commerce Clause, and that states retained the power to regulate drugs.
4.
Answers will vary. Some students will agree with Thomas, arguing that the connection to interstate commerce in this case was weak, if present at all. They may see the opportunity to link any
personal activity to a claimed effect on interstate commerce, potentially giving Congress the power to regulate anything at all. Others will disagree, arguing that allowing a state to increase the
supply of a good will inevitably have an effect on interstate markets for that good.
5.
Answers will vary.
Last Edited On 3/14/2008 9:18:00 AM