Supreme Court Cases
Supreme Court Cases
Chapter 13: Supreme Court Cases
Section 1: The First Amendment: Your Freedom of
Expression
Section 2: The Fourth Amendment: Your Right to Be
Secure
Section 3: Due Process and the Fourteenth Amendment
Section 4: Federalism and the Supreme Court
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Section 1 at a Glance
The First Amendment: Your Freedom of Expression
• Students’ Right of Expression Do students who are not
being disruptive lose their constitutional right to freedom of
speech or expression when they enter the schoolhouse door?
• Learn about the fundamental freedoms guaranteed by the First
Amendment to the Constitution.
• The Play’s the Thing Use your knowledge to prepare and
argue a case in federal district court alleging a violation of
freedom of speech. Your arguments must be guided by both
the First Amendment and Supreme Court decisions on this
subject.
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The First Amendment: Your Freedom of Expression
Reading Focus
Your freedom of expression—the right to practice your
religious beliefs; to hold, express, and publish ideas and
opinions; to gather with others; and to ask the
government to correct its mistakes—is the cornerstone of
our democracy. Through its power to interpret the
Constitution, the Supreme Court can expand—or limit—
your rights.
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Students’ Right of Expression
In the mid-1960s public opinion about the Vietnam War was divided. By 1963,
protests and demonstrations against the war began to spread, especially on
college campuses. Within a couple of years, some high school and middle
school students also began to protest the Vietnam War.
The Black Armband Case
• 1965: John Tinker and others protested Vietnam War by wearing black
armbands at public school
• School board adopted policy banning wearing of armbands
• Several violated policy, wore armbands, and were suspended
• Parents sued school district claiming students’ First Amendment right to free
expression had been violated
• U.S. district court ruled in favor of school; appeals court upheld
• Case appealed directly to U.S. Supreme Court
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Students’ Right of Expression (cont’d.)
The Supreme Court Decision
• Tinkers and others argued school’s ban on armbands violated right to free
speech under First, Fourteenth Amendments—armbands symbolic speech
• School district argued ban intended to prevent classroom disruption, not
suppress expression; argued reasonable use of power to preserve order
• 1969: Tinker v. Des Moines School District reversed lower court’s ruling
• Constitutional rights not shed “at schoolhouse gate”
• Court agreed school authorities have right to maintain order, but protesters
did not interrupt activities or seek to “intrude in school affairs”
• Court said schools can regulate student speech when speech would be
disruptive and interfere with rights of other students
• Tinker test: if expression does not substantially interfere with school
operation, regulating that speech violates the Constitution’s protection of free
expression
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Students’ Right of Expression (cont’d.)
After Tinker
• Tinker case remains leading case dealing with free-expression rights of
public school students
• 1980s
– Times and court membership changed
– Court gradually modified and expanded concept of school disruption
• Examples
– 1986: Bethel School District v. Fraser upheld suspension of student for
giving speech containing vulgar sexual references
– 1988: In Hazelwood School District v. Kuhlmeier justices upheld right of
school officials to censor school newspaper if school believes content
inconsistent with legitimate educational purpose
• Supreme Court has limited student expression on and off campus in recent
years
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WHAT DO YOU THINK?
1. Are protests like Tinker’s disruptive of school activities? Explain your
point of view.
2. Should school authorities have the right to censor student speeches
or newspapers? Why or why not?
3. Is the Tinker test an adequate way to handle issues related to
students’ freedom of expression? Why or why not?
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Freedom of Religion
The First Amendment guarantees your right to freedom of expression, the
right of citizens to hold, explore, exchange, express, and debate ideas.
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” These two guarantees are known as the
establishment clause and the free exercise clause.
The Establishment Clause
• Jefferson called for “wall of
separation” between church, state
• Supreme Court has tried to
maintain such a wall
• Disagreement exists over how high
wall should be, or if it should exist
School Prayer
• Some of the greatest controversy
• Court has banned public enforced
school prayer, not private, voluntary
school prayer
• Private religious groups allowed
• Employees may not take part
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Freedom of Religion
Religion and Instruction
• Teaching about religion and the Bible allowable
– Instruction must be done in nonreligious manner
– Cannot include teaching of religious beliefs
• 1968: Epperson v. Arkansas
– Overturned law that prohibited teaching of evolution
• 1987: Edwards v. Aguillard
– Voided Louisiana law requiring religious view known as creation science
to be taught alongside evolution
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Freedom of Religion (cont’d.)
The Free Exercise Clause
• First Amendment seems to make freedom of religious belief an absolute right
• Court has drawn distinction between right to believe and right to express
beliefs through actions
• Difference noted in first case heard involving free exercise clause
– 1879: In Reynolds v. United States Court upheld conviction of George
Reynolds for practice of polygamy, having more than one wife
– Reynolds belonged to Mormon Church, which allowed polygamy
– Federal law prohibited practice of polygamy
– Court ruled free exercise clause did not protect religious practices
“subversive of good order,” even if they reflected religious beliefs
• Court developed principle into “compelling interest test”
– Requires government to have compelling reason for banning religious
practice as necessary to protect society
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“Compelling Interest Test”
West Virginia State Board of
Education v. Barnette, 1943
Sherbert v. Verner, 1963
• Court upheld students’ right to
refuse to salute flag, recite Pledge
if it violated their religious beliefs
• Reversed South Carolina’s denial
of unemployment benefits to
woman fired for refusing to work on
Saturdays, her day of worship
• Making patriotic ceremonies
voluntary did no harm to society
• Society’s gain did not outweigh
person’s freedom to follow beliefs
Goldman v. Weinberger, 1986
• Upheld Air Force’s ban on wearing
nonmilitary apparel
• Jewish man could not wear
yarmulke while on duty
• Based on military need to foster
unity and group spirit
Employment Division v. Smith, 1990
• Upheld right to deny unemployment
benefits for two Native Americans
fired for ingesting peyote
• States may enforce laws that
incidentally interfere with religious
practices
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Contrasting
How did the Court’s position on
religious expression in Sherbert v. Verner
differ from its position in the Smith case?
Answer(s): In Sherbert v. Verner the Court
extended freedom of religious expression rights;
in the Smith case the Court limited religious
rights.
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Freedom of Speech
“Congress shall make no law…abridging freedom of speech, or of the
press…” Is speech only spoken words, or does it include other forms of
expression? Are there limits to this freedom?
Protected and Unprotected
Speech
• Speech that has little or no social
value is generally not protected
• 1942: Chaplinsky v. New
Hampshire, some classes of
expression not protected—
— Fighting words
— Defamatory speech
— Lewd and profane speech
Student Speech
• Court has ruled schools can
regulate time, place, content of
student expression
• Political speech—fewest limits
• Vulgar, obscene speech—not
allowed in school
• Speech codes—many schools
have adopted limits on expression
• Cyberspeech—generally same
protection as printed material
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Summarizing
What limits are placed on student speech?
Answer(s): Students are prohibited from
speech that disrupts the school’s learning
environment and that violates the boundaries of
socially accepted behavior.
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Freedom of Petition and Assembly
• First Amendment recognizes, protects right to petition government for
redress of grievances—to remove the cause of a complaint and make
things right
• Freedom of petition: right to ask government to act to correct injustice without
fear of punishment for making request
• Rights of assembly and petition go hand in hand
• Right of assembly—you have
right to join, form groups, gather
for any peaceful, lawful purpose
• Must be peaceful
• May not gather on private
property without owner’s consent
• Government may reasonably
regulate time, place, behavior
• 1927: Whitney v. California
upheld conviction of woman for
membership in Communist Labor
Party
• Such limits allow authorities to
arrest suspected terrorists,
members of armed groups that
pose threat to society
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Drawing Conclusions
How do the freedoms of petition and assembly
support a republican form of government?
Answer(s): Those freedoms increase citizen
participation in government.
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Freedom of Petition and Assembly (cont’d.)
Student Assembly
• Limits that apply to public also apply to students in school
• Court has been more restrictive of student rights
• Schools have right to control time, place, manner of gatherings, set
restrictions on school clubs, have right to deny some clubs permission to form
Equal Access Act of 1984
• Prohibits schools from
discriminating against clubs
because of religious or
philosophical viewpoint
• Students may distribute religious
and political literature, but school
officials may regulate activity
Illegal Activity
• Schools do not have to allow
organizations that preach hate or
violence, engage in illegal activity
• Cannot restrict students from
forming clubs just because clubs
might be controversial
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Making Generalizations
What kinds of school clubs are not protected
by the right of assembly?
Answer(s): clubs that preach hate or violence,
or that engage in illegal activity
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Simulation
The Play’s the Thing
Will students from Home City High School be
allowed to stage their play?
Issues of student free speech can take many
forms, including plays performed by student drama
groups. Using what you have learned in Section 1,
complete the simulation about a fictional lawsuit
seeking permission to perform a student play.
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Simulation (cont’d.)
Roles
• Federal judge
• Jurors
• Plaintiffs’ attorneys
• Defendants’ attorneys
• Attorney for Civil Liberties Association (CLA)
• Attorney for Center for Free Student Press (CFSP)
• Attorney for Association of United Churches (AUC)
• Attorney for Association of School Administrators (ASA)
• Drama club members
• School principal
• School newspaper editor
• Other witnesses
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Simulation (cont’d.)
The Situation
• Drama club wants to stage play on life, teachings, impact of historical
founder of Eastern religion
• Permission to present play to all-school assembly denied
• Offer to present play during lunch with voluntary attendance also denied
• Student started petition to demand presentation of play
• Petition seized, student responsible for petition suspended
• School newspaper prepared story on controversy
• School officials refused to allow story to be published
• Students filed lawsuit in federal court
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Simulation (cont’d.)
The Trial
• Attorneys for plaintiffs, defendants will present case
• Plaintiff case presented first, followed by defense
• Each side calls witnesses, including expert testimony
• Organizations present arguments at conclusion of appropriate side’s case
• Jury renders verdict for plaintiffs or defendants after each side’s case heard
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Simulation (cont’d.)
Debriefing
After the jury has reached its verdict, discuss the jury’s findings as a
class. Assess whether the jury, the attorneys, and expert witnesses
for each side correctly applied the First Amendment and case law to
the facts in this trial. Then write a one-page summary explaining
whether you agree with the verdict and why or why not.
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Section 2 at a Glance
The Fourth Amendment: Your Right To Be Secure
• The Right to Privacy Learn about a 2005 case in which the
police used a “sniffer” dog to search for illegal drugs during a
routine traffic stop.
• Learn about the privacy protections the Fourth Amendment
provides and the circumstances under which the government
can infringe upon your right of privacy.
• Have You Been Seized? Use your knowledge to argue a
case involving an alleged search and seizure violation.
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The Fourth Amendment: Your Right To Be Secure
Reading Focus
The Fourth Amendment guarantees your right to be
secure against unreasonable searches and seizures—in
other words, it guarantees that you have rights to some
sorts of privacy. As with First Amendment rights, Fourth
Amendment rights are not absolute and are subject to
judicial interpretation. In this cyber age, protection of
these rights is perhaps more important than ever.
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The Right to Privacy
Should authorities be able to search a car or home with “sniffer” dogs, or an
electronic sensor? Neither method requires authorities to enter the car or
building, so are these really searches? When, if ever, should they be legal?
Caballes Pulled Over
• 1998: Roy Caballes clocked by
state trooper driving 71 mph in a
65 mph zone
• Caballes pulled over for speeding
• Warrant check revealed no
outstanding warrants, but that
Caballes had been arrested twice
for selling drugs
• Second trooper with drug-sniffing
dog arrived at scene
A Canine Alert
• Dog walked around Caballes’s
car, barked at trunk
• Troopers opened trunk, found
large quantity of marijuana
• Caballes arrested for drug
trafficking
• Lawyer claimed drugs found as
product of illegal search
• Caballes convicted, sentenced to
12 years in prison
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The Right to Privacy (cont’d.)
The Court Hears Illinois v. Caballes
• 2003, Illinois Supreme Court reversed Caballes’s conviction, said drugsniffing dog at routine traffic stop violated Fourth Amendment rights
• State appealed ruling to Supreme Court
• 2004, Supreme Court hears Illinois v. Caballes
– Government argued dog sniff not search, does not violate privacy
– Justice Souter agreed not full-blown search but asked if it were
constitutional, what would prevent police from walking dogs around
every private home just to see if they get a “sniff of something”
– Justice Scalia noted Court had ruled Fourth Amendment rights violated
when police used thermal-imaging devices to see if people were growing
marijuana in homes
– Caballes’s attorney argued sniff was search, like scanner revealed
something hidden from view; police had no reasonable suspicion to
search car
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The Caballes Decision
• 2005, Illinois v. Caballes: 6–2
decision—Court reversed Illinois
Supreme Court, upheld Caballes’s
conviction
• Government action indicating
possession of contraband does not
violate 4th Amendment privacy
interests
• Majority opinion: person has no
legitimate privacy interest in
possessing drugs or contraband
• Court agreed with state’s argument
that dog sniff not a search
• If traffic stop lawful, police had right
to use sniffer dog
• Justice Ginsburg: “every traffic stop
could become an occasion to call in
the dogs”
• Dissenting opinions: dogs can be
wrong as result of poor training,
errors by handler, dog’s limited
ability
• Dog’s bark not probable cause
• Worried Court decision could clear
way for police with dogs to be
stationed at long traffic lights,
circling cars waiting for green lights
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WHAT DO YOU THINK?
1. Is a trained dog’s sniff of someone or something a search of that
person or thing? Explain why or why not.
2. Do you agree with the majority of the Court in the Caballes case or
with the dissenting opinions? Explain why.
3. Would your opinion in the Caballes case be different if it had
involved a bomb-sniffing dog instead? Explain why or why not.
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Understanding Search and Seizure
The Fourth Amendment states that “the right of the people to be secure in
their persons, homes, papers and effects, against unreasonable search and
seizure, shall not be violated.” This guarantee applies only to searches and
seizures made by the government; it does not protect against unreasonable
searches and seizures by private organizations or citizens. It did not apply to
state governments until 1949, and the Supreme Court did not apply the
exclusionary rule to state courts until 1961.
Searches
Seizures
• Definition of search—any action by
government to find evidence of
criminal activity—very broad
• Seizure occurs when authorities
keep something—an object, person
• Includes searching property,
listening to phone conversations,
stopping suspicious-looking
persons and frisking for weapons
• Police might seize item from home
as evidence in a murder
• Might take drugs or weapon from
person stopped and frisked
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Probable Cause and Warrants
To obtain a warrant—a court order to search for something or seize
someone—there must be probable cause to believe the search will produce
evidence of a crime, or that the person seized committed a crime.
Unreasonable Searches
Warrantless Searches
• 4th Amendment bans
unreasonable search and seizure
• Some instances where warrant
not required
• What is reasonable?
• Plain view doctrine: if object is in
plain view, law assumes owner
does not consider it private
• 1967: Katz v. United States,
searchers must respect person’s
right to privacy
• Search warrant needed to look
inside something
• Must state what is being searched,
what authorities are looking for
• Example—if police have warrant
to search home for illegal drugs
and drug paraphernalia is in plain
view, it can be seized even
though items not listed on warrant
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Summarizing
How are search and seizure related?
Answer(s): Authorities conduct searches for
evidence of illegal activity, and if they find such
evidence, they seize it for evidence.
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The Fourth Amendment and Privacy
• Katz v. United States: Fourth
Amendment protects people, not
just places
• No matter where person is, he/she
has no expectation of privacy if in
possession of illegal drugs
• Wherever a person is, his/her right
to privacy protected if he/she has
exhibited reasonable expectation of
privacy
• Court has said search or seizure
lawful when it begins can violate
Fourth Amendment if way search
carried out unreasonably infringes
upon interests protected by
Constitution
• Level of privacy depends in part on
where person is
• Not as much privacy expected in
coffee shop as in home
• United States v. Jacobson, 1984
The Court has used all of these principles to decide when and how far
protections under the Fourth Amendment apply.
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Searches of Homes
• Court applies highest expectation
of privacy to people’s homes
• Warrant required in most cases to
search homes
• 1998, Minnesota v. Carter: no
reasonable expectation of privacy
when illegal drugs involved
• 1988, California v. Greenwood:
garbage cans may be searched
without warrant; no expectation of
privacy for items thrown away
• 1986, California v. Ciraolo: arrest
allowed after marijuana spotted
from police plane
• 2001, Kyllo v. United States: Court
drew line at use of devices to look
through walls of homes from
outside
• Thermal scan reveals information
normally available only with actual
intrusion into house, requiring
warrant
• Overturned arrest of man because
thermal scan of home revealed
marijuana growing inside
• Authorities did not have warrant,
therefore seizure of evidence,
arrest unconstitutional
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Personal Privacy
• Fourth Amendment provides people will be secure in persons from
unreasonable search, seizure
• Court has interpreted guarantee in variety of ways, applied differently
in number of circumstances
Stop and Frisk
• Generally police do not have right to stop people randomly and
search them
• 1968, Terry v. Ohio: police can stop people who seem to be acting
suspiciously, pat down for weapons
• Neither warrant nor probable cause needed for what now is called
Terry stop
• Public safety outweighs individual’s privacy right
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Intrusive Searches
• Degree to which authorities may go in searching person’s body
depends on situation
• Three questions considered in deciding if search reasonable
– What is legal status of person being searched
– How invasive is search
– Does search serve safety, security need for society—this standard called
special needs test
• Examples
– Strip searches of prisoners permissible
– Fingerprinting arrested persons allowable
– Fingerprinting persons not under arrest requires probable cause
– Blood or DNA testing more invasive, requires search warrant
– Blood testing of arrested person requires only probable cause
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Drug Testing
• Drug tests require blood, urine samples
• Considered intrusive searches
• In most cases require warrant, at least probable cause
• Court has removed requirement for certain groups of people
• Government can require workers in jobs where public safety
important to be tested without probable cause or suspicion
• 1995, Vernonia School District v. Acton: schools may require random
drug testing of athletes even if no one suspected of drug use
• “Deterring drug use by our nation’s school-children is at least as
important as…deterring drug use by engineers and trainmen”
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Students’ Fourth Amendment Rights
• Court has generally limited students’ Fourth Amendment rights
– Reasoning same as limiting students’ First Amendment rights
– Students’ rights may be restricted in order to preserve proper learning
environment in schools
• 1985, New Jersey v. T.L.O.
– Probable cause not needed for school officials to search students if
circumstances make search reasonable
– T.L.O.: teacher found girl smoking in restroom
– Girl denied smoking to vice principal
– Search of purse revealed cigarettes, marijuana
– Court: search not unreasonable under circumstances
• After T.L.O., most student search cases decided at state level
• Any search by police officers still requires warrant
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Private Communication
• 1967, Katz v. United States: landmark Supreme Court decision on
wiretapping, other forms of electronic surveillance
• Since Katz, use of computers, cell phones, personal digital assistants, other
wireless devices has created new kinds of searches, applications of Fourth
Amendment
• Cases involving cyber-surveillance have yet to reach Supreme Court
The 4th Amendment Since 9/11
NSL
• USA PATRIOT Act greatly relaxed
privacy protections, controls on
searches, seizures
• National Security Letter—issued by
FBI and others; authorizes search
without warrant
• Government allowed to search
variety of information—phone
company records, Internet service
providers, libraries, bookstores
• PATRIOT Act also contains gag
order—recipient of NSL prohibited
from disclosing that letter was ever
issued
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Wireless “Searches”
•
•
•
•
•
Many of today’s communications devices use wireless communication
Anyone with scanner tuned to proper frequencies can intercept signals
Such interception illegal, except for law enforcement agencies
Warrant must be obtained to monitor wireless communications
PATRIOT Act—some standards for obtaining warrants relaxed, eliminated
National Security and the Courts
• Several 4th Amendment challenges to government surveillance programs
now before federal courts
• 2006, United States v. Arnold: case of search of laptop contents at airport
• 2006, class-action suit accusing AT&T of turning over phone records of
millions of Americans to the National Security Agency
• Government argues that actions necessary to protect national security
• Supreme Court likely to be asked to decide these issues, other similar cases
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Summarizing
Why are National Security Letters controversial?
Answer(s): possible answer—Probable cause
is not needed to obtain them and they come with
a gag order.
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Simulation
Have You Been Seized?
How will the Supreme Court rule in State v.
Martin?
Issues relating to Fourth Amendment searches
and seizures have been brought before courts for
many years, and still not every question has been
resolved. In this simulation you will argue one such
Fourth Amendment issue before the Supreme
Court.
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Simulation (cont’d.)
Roles
• Chief justice of the United States
• Eight associate justices
• Plaintiff’s attorneys
• Defendant’s attorneys
• Attorneys from the National Association of Law Enforcement Members
(NALEM)
• Attorneys from the Foundation for Fourth Amendment Freedoms (FFAF)
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Simulation (cont’d.)
The Situation
• Police discover small amount of illegal drugs on 18-year-old in pat-down
search during traffic stop
• 18-year-old convicted in state district court for drug possession
• Conviction appealed on grounds that Fourth Amendment rights violated,
search illegal because he was passenger, no probable cause to search him
• State supreme court agreed, overturned conviction
• State has appealed ruling to U.S. Supreme Court
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Simulation (cont’d.)
The Hearing
• Attorneys for both plaintiff, defendant will present oral arguments to Court
• Plaintiff’s case presented first, followed by defendant’s
• Justices may interrupt each argument to ask questions
• After each side has made argument, Court will rule, either upholding or
reversing state supreme court’s ruling overturning conviction
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Simulation (cont’d.)
Debriefing
While the Supreme Court is deliberating its decision, write a one-page
decision of your own, revealing how you would decide the case if you
were on the Court. After the Court’s decision is read, discuss whether
you agree or disagree with the Court’s opinion or opinions.
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Section 3 at a Glance
Due Process and the Fourteenth Amendment
• Due Process and Public Schools Learn about how the
Fourteenth Amendment right to due process applies to public
schools.
• Learn about how the Supreme Court has used the due process
clause of the Fourteenth Amendment to expand and protect
people’s rights.
• Terrorists and Due Process Use your knowledge to argue a
case involving due process issues before the Supreme Court.
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Due Process and the Fourteenth Amendment
Reading Focus
The Fourth Amendment requires that states provide due
process and equal protection under the law. These
requirements have made this amendment one of the
most important parts of the Constitution.
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Due Process and Public Schools
What due process rights, if any, do students have if they are facing
suspension from public school? The Supreme Court addressed the
issue in Goss v. Lopez in 1975.
The School Suspension Case
• 1971: Columbus, Ohio, school
officials suspend number of
students for up to 10 days for
student misconduct
• Dwight Lopez asserted he was
innocent bystander
• Claimed due process rights
denied because he was
suspended without hearing
• District court ruled suspensions
unconstitutional; Lopez, others
denied due process
• Court said school should have
given students notice of
suspension, held hearing
• School system appealed to
Supreme Court
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Due Process and Public Schools (cont’d.)
The Court Hears Goss v. Lopez
• School argued because there was
no constitutional right in Ohio to
public education, no requirement
school provide due process
• Attorneys for Lopez pointed to Ohio
law requiring state to provide free
education for all students
• Argued suspending without due
process unconstitutionally deprived
students of this right
The Supreme Court’s Decision
• 1975: in 5–4 decision Court said
because Ohio offered public
education, students could not be
deprived of that right without due
process
• Justice White: Ohio had made
education a property right
• Either before suspension, or soon
thereafter, students must be given
hearing, allowed to explain events
Courts have consistently interpreted Goss to mean that students who are
suspended for longer than 10 days must be granted more due process rights.
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WHAT DO YOU THINK?
1. Do you agree that a public education is a property right? Why or why
not?
2. Should students suspended for fewer than 10 days for a rule
violation have a right to a hearing? Why or why not?
3. Should students who are expelled receive more due process than
those who are suspended? Explain why or why not.
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Due Process and Equal Protection
• 14th Amendment: no state shall “deprive any person of life, liberty, or
property without due process…nor deny any person…equal protection of the
laws”
• Court has applied many Bill of Rights guarantees to actions of states through
doctrine of incorporation, and has applied idea of “equal protection” against
actions of federal government
• Due process—laws, process, and procedures of applying them must be fair
• Equal protection—each person in same, similar circumstances stands before
law equally
• Procedural due process—certain procedures must be followed in carrying
out, enforcing law
• Substantive due process—if way laws carried out are fair, then laws
themselves must be fair
• People have natural rights not listed in Constitution
• To be fair a law cannot violate people’s natural rights
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Summarizing
Explain how procedural due process and
substantive due process
ensure that a person will have a fair trial.
Answer(s): possible answer—Procedural due
process ensures that proper trial procedures will be
followed, and substantive due process ensures that
the interpretation of the laws during the trial will be
fair.
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Substantive Due Process
• Constitution does not create or grant rights
• Protects, guarantees “unalienable rights” referred to in Declaration
• Purpose of 9th Amendment: recognize, protect rights not explicitly stated—
unenumerated rights
• Court has used doctrine of substantive due process to decide what some of
those rights are, including certain property rights, right to privacy, others
Protecting Property Rights
• Court first used doctrine of
substantive due process to define,
protect property rights, other
economic rights
• 1905, Lochner v. New York, one of
most famous examples—also
known as the Bakeshop Case
The Bakeshop Case
• Bakery owner arrested in violation
of Bakeshop Act; claimed deprived
of property rights—to negotiate
employment contract—without due
process
• State argued it was empowered to
protect well-being of citizens
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The Decision and the Dissent
• 5–4 decision, justices agreed with bakeshop owners
– Overturned conviction, ruled Bakeshop Act unconstitutional
– When considering if exercise of state’s police power to safeguard public
health constitutional, Court must ask if regulation reasonable and
necessary, or unreasonable, unnecessary, arbitrary
– Court did not believe long hours in bakery unhealthy
– Law unreasonable interference with rights of individuals to make
contracts regarding labor
• Strong dissents
– Justices Harland, Holmes argued Court’s majority should have respected
legislature’s judgment instead of own point of view
– “A constitution is not intended to embody a particular economic theory...”
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Lochner’s Effect
• After Lochner, first criticisms of
substantive due process heard
• Court attacked for using doctrine to
impose its views, values on nation
• As Court continued to apply
substantive due process to laws
affecting property rights, criticism
grew
• 1938, United States v. Carolene
Products Company: Court said it
would apply only rational basis test
to economic regulations
• Rational basis test meant for a law
to be upheld, government would
have to show only it had good
reason—rational basis—for passing
law
• When Court called upon to review
law, rational basis test the least
strict standard it can apply
The practical result of the Court’s announcement was that it nearly stopped
applying substantive due process to property rights. However, it said it would
apply a stricter test to laws that affected personal rights.
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Supreme Court Cases
Protecting Personal Rights
After Carolene, the Court did begin to use substantive due process to
define basic personal rights, none of which are expressly listed in the
Constitution.
• Right to Privacy
– 1965, Griswold v. Connecticut: privacy right first recognized by Court
– 1973, Roe v. Wade: expanded privacy right
• Determining the Right to Die
– 1983: Nancy Beth Cruzan critically injured in auto accident
– Doctors said she would never recover from “persistent vegetative state”
– 1987: hospital refused parents’ request to remove feeding tube and
allow Nancy to die
– Parents argued daughter would not want to live in such a condition
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Supreme Court Cases
Protecting Personal Rights
• The Cruzan Decision
– Trial court ruled for parents; Missouri Supreme Court overruled, holding
there was no clear, convincing evidence Nancy wished to die
– 1990, Cruzan v. Director, Missouri State Department of Public Health:
Court ruled right to refuse medical treatment a privacy right protected by
14th Amendment, but also upheld ruling of Missouri Supreme Court—
could not end treatment without evidence of what patient wanted
• The Effect of Cruzan
– Case established person’s right to refuse medical treatment, and to die
– Also set due process standard by which someone else could make
decision if patient unable to do so
– Cruzan’s parents went back to state court with evidence of
conversations in which Nancy said she would never want to “live like a
vegetable”
– Court ordered feeding tube removed; she died 12 days later
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Identifying the Main Idea
How has the Court’s theory and use of
substantive due process changed?
Answer(s): The Court shifted its use of
substantive due process from property rights to
personal rights.
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Procedural Due Process
Procedural due process has a very different history from substantive due
process. Procedural due process grew out of Magna Carta, the 1215
document that required the English king to follow the law of the land.
Procedural Due Process
and Property Rights
• Most attention focuses on life,
liberty issues as due process
applies to arrest, prosecution of
persons accused of crimes
• Issues typically involve depriving
people of personal property, land
• 1970s: concept expanded to
include other benefits, education,
statuses
Goldberg v. Kelly (1970)
• John Kelly, others, challenged
constitutionality of procedures for
termination of federal financial aid
• Court ruled Kelly entitled to full
hearing before benefits terminated
• Decision changed way all
government benefits are
administered
• Aid payments are form of property
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Stanley v. Illinois (1972)
• Illinois law defined “parent” as father and mother of child born to married
couple, and the mother—not father—of child born to unmarried couple
• Peter Stanley not married to Joan Stanley, mother of their three children
• State removed children from Stanleys’ home when Joan died because
according to state’s definition, Peter Stanley was not parent
• Peter Stanley sued state to regain custody of children
• 1972: Court agreed that Stanley had been denied due process, and that
treating unwed fathers differently violated equal protection clause
• Court said unwed fathers entitled to due process hearings to determine
fitness as parent before children can be made wards of state
• Also established what Constitution requires in way of due process for anyone
• Before government at any level can deprive person of rights or property,
person must at least be given formal notice, hearing to meet requirements of
procedural fairness
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Supreme Court Cases
Procedural Due Process and Juvenile Justice
By 1899 states recognized that juvenile offenders should be treated
differently from adult criminals. Unfortunately, juvenile proceedings were
often informal and did not include due process protections. In the 1967
landmark case In re Gault, the Court extended many of the due process
requirements of adult proceedings to the juvenile justice system.
Background to Gault
• 15-year-old Gerald Gault taken into custody following complaint by Arizona
woman who believed him to be person who made lewd phone call to her
• Mother went to juvenile center, learned son would have juvenile court hearing
next afternoon—never told what he was charged with
• Neither Gault nor parents advised he could have attorney; judge took no
testimony from family; no one testified under oath; no record of proceedings;
accuser not required to appear, denying right to confront, cross-examine
• Judge found Gerald guilty, sentenced him to state industrial school till 21
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Procedural Due Process and Juvenile Justice
The Gault Decision
Gault’s Impact
• Arizona law—Gault had no right to
appeal conviction, punishment
• Gault gave juveniles most of same
due process rights as adults
• Appealed to Supreme Court
claiming minors should have same
due process rights as adults
• Rights to know what they are
charged with, to counsel, to
confront witnesses
• Court agreed: neither 14th
Amendment nor Bill of Rights for
adults alone
• Did not give all same rights—in
most states juveniles still do not
have right to trial by jury
• Condition of “being a boy does not
justify kangaroo court”
1984, Schull v. Martin: Court ruled that due process for juveniles does not
include the right to be released from custody while they are awaiting trial.
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Supreme Court Cases
Summarizing
What is procedural due process?
Answer(s): possible answer—the requirement
that government must follow certain procedures
before depriving citizens of life, liberty, and
property
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Simulation
Terrorists and Due Process
Should suspected terrorists receive due process of
law?
The Fifth and Fourteenth Amendments guarantee that
Americans may not be denied life, liberty, or property
without due process of law. However, the Supreme Court
has applied this protection in some very different ways. Use
what you have learned in Section 3 to complete this
simulation about a fictional due process case being argued
in the Supreme Court.
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Simulation (cont’d.)
Roles
• Chief justice of the United States
• Associate justices
• Attorneys for the defendant
• Attorneys for the plaintiff
• Attorneys for the American Center for Civil Justice (ACCJ)
• Attorneys for Terrorism Victims and Survivors for Justice (TVSJ)
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Simulation (cont’d.)
The Situation
• Number of people suspected of plotting, having committed terrorist acts
against United States imprisoned at U.S. military base in another country
• Have not been charged with a crime
• Have not had hearing, been brought to trial
• Have not been allowed to hire attorneys to represent them
• Several imprisoned for more than two years
• Two are U.S. citizens, others citizens of other countries
• Civil rights group has appealed to Supreme Court on detainees’ behalf,
asking prisoners receive due process
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Simulation (cont’d.)
Oral Arguments
• Attorneys for both plaintiff, defendant will present oral arguments to
Supreme Court
• Plaintiff’s argument presented first, followed by defendant’s
• Justices may interrupt each argument to ask questions
• After each side has made argument, Court will rule on question of
what, if any, due process rights detainees may be entitled to
• Court may order due process for all, some, or none
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Simulation (cont’d.)
Debriefing
“Those who would give up essential liberty to purchase a little
temporary safety, deserve neither Liberty nor Safety,” is a quote
attributed to Benjamin Franklin. Use what you have learned about due
process to discuss the trade-off between liberty and safety today.
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Section 4 at a Glance
Federalism and the Supreme Court
• Treaties and States’ Rights Learn about the relationship
between federal law, such as treaties with other countries, and
state laws.
• Learn about the distribution of power between the federal and
state governments.
• Arguing a Federalism Case Use your knowledge to argue a
Supreme Court case involving the commerce clause, states’
rights, and the Eleventh Amendment.
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Supreme Court Cases
Federalism and the Supreme Court
Reading Focus
In Chapter 4 you read that federalism is a system of
government in which power is divided between a central
government and regional governments. The Constitution
gives the national government power over some issues
and reserves to the state governments power over other
issues. The balance of power between the national
government and the states shifts from time to time as a
result of legislation and Supreme Court decisions.
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Treaties and States’ Rights
Hunting and fishing are typically regulated by state governments. Should the
federal government have any power over state-regulated activities, such as
restricting the hunting of certain animals within a state’s borders?
Protecting Migratory Birds
• Wild animals considered property
of state in which they lived
• 1916: treaty to protect birds
migrating between U.S., Canada
• Wild animals, especially birds,
move across boundaries freely
• Congress passed Migratory Bird
Treaty Act to prohibit killing,
capturing birds covered by treaty
• Federal government tried to use
this to protect migratory birds
• Courts struck down federal bird
hunting regulations as
unconstitutional
• Missouri tried to prevent federal
game warden from enforcing act
as unconstitutional exercise of
federal power
Supreme Court Cases
Treaties and States’ Rights (cont’d.)
Court Hears Missouri v. Holland
Holland’s Impact
• Feds argued Constitution gave
president power to make treaties
• Court upheld lower court ruling that
act was constitutional
• Noted supremacy clause making
federal laws, treaties the supreme
law of the land
• Observed some matters require
national action
• Missouri argued Bird Treaty Act
unconstitutional intrusion into
Missouri’s sovereignty, Congress
should not be able to use treaty
power to pass law that would be
unconstitutional if passed directly
• Federal government can, under
international treaty, regulate
activities within states it might
otherwise have no power to control
• Migratory birds do not recognize
borders, are no one’s property
Holland clarified and expanded the limits of federal power to conduct
international relations. Other cases since have continued to expand authority
over state laws when the nation is dealing with international issues.
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WHAT DO YOU THINK?
1. Should the hunting of migratory birds be controlled by the states,
which license hunters, or by federal authorities? Explain your point
of view.
2. Was the Migratory Bird Treaty Act a proper expansion of federal
power over the states? Why or why not?
3. Could the federal government amend the Constitution by making a
treaty with another country? Explain.
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Expanding Federal Authority
• Commerce Clause of Constitution
– Congress has power to regulate commerce with foreign nations, the
states, Indian tribes
– Congress’s use of clause, Supreme Court’s interpretation of it, has
significantly defined balance of power between national government,
states, helped shape American life
• Use of power
– Congress has tried to use power to regulate commerce to end racial
discrimination in United States
– 1964, Heart of Atlanta Motel v. United States: Court upheld use of power,
said federal government could force private businesses not to
discriminate against African Americans
– Said Heart of Atlanta Motel engaged in interstate commerce since 75
percent of guests were from out of state; racial discrimination had
disruptive effect on interstate commerce
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Identifying the Main Idea
What part of the Constitution has had
the greatest impact on changing the
Constitutional system of federalism?
Answer(s): the commerce clause (Article I,
Section 8, Clause 3)
Supreme Court Cases
The Guns in School Case
• 1992: Alfonso Lopez arrived at
San Antonio high school
carrying concealed handgun
• School authorities received tip,
confronted Lopez
• Next day state charge dropped
when Lopez charged with
violating federal Gun-Free
School Zones law
• Law makes it illegal for anyone
to have firearm in school zone
• Lopez admitted he had .38
caliber revolver, five bullets
• Lopez arrested, charged under
Texas law with firearm
possession on school premises
• Lopez convicted in federal
court, sentenced to 6 months in
jail
• 5th Circuit Court of Appeals
reversed conviction
• Federal authorities appealed to
Supreme Court
Supreme Court Cases
The Arguments
• Lopez’s attorneys said having gun at school may be criminal offense, but
federal law was unconstitutional exercise of Congress’s power to regulate
interstate commerce
• Government argued guns in school zones could lead to violent crime, making
people afraid to travel in the area; fear of violent crime might interfere with
students’ learning; both could affect the economy
The Court’s Ruling
• 1995, United States v. Lopez: Court ruled 5–4 that Gun-Free School Zones
Act unconstitutional
• Possession of gun in local school zone not economic activity, would not
affect any sort of interstate commerce
• Lopez first case to limit Congress’s use of commerce clause since 1930s
• Court had duty to prevent federal government from further expanding powers
to regulate conduct of a state’s citizens
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Supreme Court Cases
The Medical Marijuana Case
• Using marijuana illegal under
federal law since 1937
• 1996: California voters
approved marijuana use for
medical purposes
• 2002: federal authorities seized
and destroyed six marijuana
plants grown by Monson
• Monson, Raich sued federal
government
• Two Californians, Diane
Monson and Angel Raich, used
home-grown marijuana to treat
chronic pain
• Doctor said Raich’s pain so
severe, she could die without
marijuana to relieve it
• Court of appeals ruled feds had
no right to interfere with right to
grow, use marijuana under
California law
• Government appealed decision
to Supreme Court
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The Arguments
• Raich, Monson claimed federal law allowing seizure was violation of
commerce clause because they were not engaged in interstate commerce
• Said marijuana home grown—seeds, soil, equipment all from state in which
they lived; therefore product was entirely of intrastate commerce
• Claimed federal government’s enforcement action was unconstitutional
• Government based its argument on supremacy clause
• Argued federal government does not recognize medical use of marijuana,
Constitution makes federal law supreme over state law
• Also argued use of home grown marijuana for medical purposes affected
illegal trade in marijuana coming into California from other states, countries
• Claimed this gave government right to regulate home grown marijuana
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The Raich Decision
• 2005, Supreme Court ruled 6–3 to uphold government’s use of commerce
clause to seize home grown marijuana plants
• Court accepted government’s argument that home grown medical marijuana
affects interstate commerce
• Justice John Paul Stevens’s majority opinion noted marijuana popular part of
commerce, commerce clause applies whether commerce is legal or not
• Said if Monson, Raich not growing own marijuana, would have to buy
somewhere else which would ultimately have impact on the interstate
commerce Congress can regulate
• Justice Sandra Day O’Connor’s dissenting opinion noted “Federalism
promotes innovation by allowing…a single courageous state, if its citizens
choose…[to] try novel social and economic experiments without risk to the
rest of the country…”
• Added that principles of federalism should protect California’s experiment
from federal regulation
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Supreme Court Cases
Summarizing
How did Justice O’Connor think the decision
in Gonzales v. Raich affected federalism?
Answer(s): Justice O’Connor believed it gave
the federal government too much power.
Supreme Court Cases
Simulation
Arguing a Federalism Case
Should Native Americans be able to operate casinos on
reservations in states where such gambling violates
state law?
Native American groups are considered “domestic
dependent nations” within the United States. Each group
has the right to have its own government on a reservation
that operates mostly independently of the laws of the state
within which the reservation is located. Using what you
have learned, complete this simulation involving issues of
federalism and having a casino on a reservation.
Supreme Court Cases
Simulation (cont’d.)
Roles
• Chief justice
• Associate justices
• Attorneys for plaintiff, Native American Nation
• Attorneys for defendant, the State
• Attorneys for the National Native American Council, a Native American civil
rights group
• Attorneys for the American Association for Family Values, a group that
opposes casinos and gambling
Supreme Court Cases
Simulation (cont’d.)
The Situation
• Native American nation asked state to allow to open casino on reservation
• State refused
• Native Americans sued state in federal court under provisions of Indian
Gaming Regulatory Act of 1988
• State filed motion to dismiss case
• Federal district court denied state’s motion, state appealed to circuit court of
appeals
• Court of appeals granted state’s motion, dismissed case
• Native American nation appealed to Supreme Court
• Appeals court considered, did not address, commerce clause issues
Supreme Court Cases
Simulation (cont’d.)
The Hearing
• Attorneys for both plaintiff, defendant will present oral arguments to
Supreme Court
• Plaintiff’s position presented first, followed by defendant’s
• Justices may interrupt each presentation to ask questions
• After each side has made argument, Court will rule on plaintiff’s
request that it reverse court of appeals, allow suit in district court to
proceed
Supreme Court Cases
Simulation (cont’d.)
Debriefing
While the Supreme Court is deliberating its decision, write a one-page
opinion of your own, revealing how you would decide the case if you
were on the Court. After the Court’s decision is read, discuss with the
class and the justices any differences you see between the decision
and any separate opinions the justices may have written and which
opinion, if either, you think is better reasoned.