United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution

ARTICLES

Amendment

SECTIONS

KEY ISSUES

Article 1, Section 1

The text of the U.S. Constitution begins with a description of the legislative branch of the government, or the “Congress.” In fact, the first three articles of the Constitution deal in turn with the three branches of the federal government: legislative (Congress), executive (President), and judicial (Supreme Court). These branches were designed to compete with each other – to have overlapping and competing interests, so no single branch or person could possess complete authority. In the wake of the American Revolution, the founders were left with a distaste for monarchy, and they created a system whose very structure lends toward a separation of powers.

Article I is made up of ten sections, which can be thought generally of as answering three separate questions: What is the Congress (Sections 1-3)? How does the Congress work (Sections 4-7)? What can the Congress do or not do (Sections 8-10)?

Below, is section one, which is uniquely short and straightforward.
Text of Article 1, Section 1:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The 'Travis Translation' of Article 1, Section 1:
Laws are made by Congress. Congress is made up of a Senate and a House of Representatives.
The very first section of Article I is simply written. It is more of an introduction than anything else. Congress makes laws. Congress is made up of the Senate and House of Representatives.

Article 1, Section 2

Text of Article 1, Section 2:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New- York six, New Jersey, four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

The 'Travis Translation' of Article 1, Section 2:
Clause 1: Members of the House of Representatives get elected every two years. The people who get to vote are the same people who get to vote for members of the biggest house of the state legislature (in other words, people who are registered to vote).

Clause 2: To get elected to the House, you must be 25 years old, be a citizen of the United States for seven years, and live in the state that elects you.

Clause 3: [Representatives and taxes were originally based on population which did not count slaves and Indians as full people; Section 2 of the 14th Amendment changed how people are counted.]

Representatives in Congress, as well as taxes [this part about taxes was changed by the 16th Amendment], are spread out over the country and are based on the number of people living in the places they represent. People in the country get counted every 10 years in a census so we know how many people are in the country, and so we can figure how many people are represented in the House of Representatives, and so we can figure taxes. A certain number of people (originally 30,000; now over 500,000) have their own representative.

For the first Congress, with no census, the division of Representatives in the House was: New Hampshire, three; Massachusetts, eight; Rhode-Island and Providence Plantations, one; Connecticut, five; New-York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, five; South Carolina, five; and Georgia, three.

Clause 4: If a Representative leaves office or dies, the Governor of that State sets up another election.

Clause 5: Representatives get to pick a Speaker and other officers. Only the House of Representatives can vote to start the process for kicking somebody out of office (impeaching them).

The second section of Article I sets up the House of Representatives.

As is still the practice today, the Constitution established that members of the House would all be elected every two years. The size of the House is established by Congress and is, today, set at 435 members. This number had increased decade after decade until it was fixed by a law in the early 20th century. Now, changes in population do not expand or contract the size of the House. Rather, the census, which takes place every ten years, is used to apportion the representatives among the states, using the fixed 435-member figure. Additionally, the Constitution established, among other provisions in Article I, that members of the House needed to be at least 25 years old, that the members of the House could pick their own “Speaker” (the person who presides over the House and is next in line for Presidential succession after the President and Vice-President [today, the Speaker is chosen by whichever party has a majority in the House]), and that the House is responsible for Impeachment.

Article 1, Section 3

Text of Article 1, Section 3:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

The 'Travis Translation' of Article 1, Section 3:
Clause 1: [Originally, Senators were chosen by the state legislatures, but the 17th Amendment changed it so people in the states voted directly for Senators.]

Clause 2: The Senate of the United States will have two Senators from each state elected every six years. Each Senator has one vote in the Senate. After the first election of Senators in the U.S., they will divide themselves into three groups, each picking a term of two, four, and six years for their first term so after that, one-third of the Senators are elected every two years. If a Senator leaves office or dies, the Governor of the State will pick someone to be the Senator until the next election.

Clause 3: To be a Senator, you have to be 30 years old, be a citizen of the United States for nine years, and live in the state that elects you.

Clause 4: The Vice President of the United States will be the President of the Senate, but only gets to vote if there is a tie.

Clause 5: The Senate gets to pick another President of the Senate for the times when the Vice President cannot be there.

Clause 6: The Senate will hold the trials for people the House of Representatives impeaches. If the Senate is trying someone on impeachment (to kick someone out of office), everyone has to swear to tell the truth. If the President of the United States is tried, the Chief Justice of the United States is in charge. But nobody can get kicked out of office unless two-thirds of the Senators present vote for it.

Clause 7: People impeached by Congress cannot be elected or appointed to another office. But if somebody gets impeached and then gets kicked out of office, he or she may still be tried before a jury for any crimes, like the law says.

The third section of Article I sets up the Senate.

As is still the practice today, the Constitution established that members of the Senate would be elected every six years, in two year increments. This means that, for example, in 1966, there was an election for 1/3 of the Senators. Those elected were not up for reelection again until 1972. But in 1968, there was also an election – for another 1/3 of the Senators, who served until 1974. And in 1970, there was an election for another 1/3 of the Senators, who served until 1976. There are two Senators per state, no matter the state’s population. Therefore, today, there are exactly 100 Senators (for 50 states). Additionally, the Constitution established, among other provisions of Article I, that Senators needed to be at least 30 years old, that the Vice-President of the United States casts a tie-breaking vote when necessary, and that the Senate is responsible for trying someone who has been impeached by the House.

Importantly, originally – as is stated in this section – Senators were chosen by the state legislatures. It was only with the passage of the 17th Amendment in 1913 that Senators, like Representatives, were also elected directly by the people.

Article 1, Section 4

Text of Article 1, Section 4:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
The 'Travis Translation' of Article 1, Section 4:
Clause 1: The State Legislatures will pick the times and places for elections, but Congress can make laws to change the times and places for Senators and Representatives. [Originally, Congress could not change rules about where Senators were chosen, but the 17th Amendment made that out-of-date.]Clause 2: The Congress will meet at least once every year, at a regular time [originally, they were to meet on the first Monday in December, but Section 2 of the 20th Amendment changed that to noon on January 3, unless they make a law to move it to another day.]
The fourth section of Article I establishes some basic guidelines for congressional elections and for Congress’ meetings.

The first clause describes the delegation of power between the federal government (Congress) and state governments regarding elections to Congress. According to this clause, states are permitted to set different laws for their respective elections. But Congress may also make such laws and override essentially any state laws to the contrary.

This second clause, today, is mostly moot. It requires Congress to meet at least once a year. The limits of communication and travel in the 18th century were so burdensome that a constitutional requirement that Congress gather one time in a year was necessary. But today, being a Senator or Representative is a full-time job in Washington, D.C. and Congress meets regularly throughout the year. Additionally, the last piece of this clause – that if Congress were to only meet once a year, that day should be the first Monday in December – was superseded by the 20th Amendment. Now, Congress must meet, at least, on January 3rd.

Article 1, Section 5

Text of Article 1, Section 5:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The 'Travis Translation' of Article 1, Section 5:
Clause 1: The House of Representatives and the Senate are each in charge of the elections and behavior of their Members. Both the House of Representatives and the Senate need most of their Members there to do business. They can make the other Members come to work and punish them if they do not.

Clause 2: Both the House of Representatives and the Senate make their own rules for doing business. They can punish Members for misbehaving, and they can kick out Members if two-thirds of them vote for it.

Clause 3: Both the House of Representatives and the Senate will write down what they say and do in a journal and print it so everybody can read it, unless it is really secret. Votes of individual Representatives or Senators must be written down if 20% of the Members want that.

Clause 4: While Congress is meeting, the House of Representatives or the Senate cannot leave for more than three days, unless they both decide to leave.

The fifth section of Article I deals with rules.

And, as with much of this article, the text itself is straightforward: Congress needs to make sure that its members are qualified, it needs a majority present to do most business, it can set its own internal rules and govern the punishment for violating those rules, it should keep records, and – during a session of Congress – neither House (Senate or House of Representatives) can adjourn for more than three days or meet in a place other than the Capitol without the consent of the other House.

Article 1, Section 6

Text of Article 1, Section 6:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The 'Travis Translation' of Article 1, Section 6:
Clause 1: Senators and Representatives will get paid by the government according to the law. Except for treason, stealing, or disturbing the peace, they cannot be arrested while they are at work, or on their way to work, in Congress. [Congress modified this a little bit in the 27th Amendment, making any change in pay for Congress apply to the next Congress, not the one that voted for it.]

Clause 2: No Senator or Representative can be picked for another office in the U.S. Government if that office was created, or if the office got a pay raise, while they were in Congress. No one can serve in Congress and work somewhere else in the government at the same time.

The sixth section of Article I addresses three somewhat complex issues.

First, according to this section, Congresspeople get paid for their work and their pay is set by law. Meaning, according to the original Constitution, it is Congress that decides how much Congress gets paid. Obviously, there is something of a conflict of interest in this arrangement. Concern for corruption spurred a constitutional amendment to change it. This 27th Amendment is unique for several reasons. Certainly, any constitutional amendment is rare. But not only was this amendment the last to be passed in the United States (in 1992), it was first proposed over 200 years earlier. The precise language of the amendment was actually suggested in the late 1700s, and ratified by half a dozen states then. Almost a century later, it was ratified by another state in protest to Congress giving itself a substantial raise. As it turned out, the amendment had no time limit placed on its ratification. So when the movement to curb Congress’ ability to give itself instant raises was revived in the 20th century, there was already a partially ratified amendment. It just needed to be passed by additional states, which it eventually was. The new constitutional requirement is that, though Congress still sets Congress’ pay, any raise it gives itself only takes affect after the next election. Meaning, a Senator or Representative may no longer be in Congress by the time the raise is actually put in place.

The second issue addressed by this section concerns what is known as the Speech or Debate Clause. This controversial provision affords immunity from arrest to members of the Senate or House of Representatives (and their staff members) for things said or done during a speech or debate in Congress, attendance in Congress, or going to or from Congress (except for the most serious of charges like treason or some felonies). This clause, modeled after a similar provision in place in the British Parliament, was designed to protect the independence of the legislature in the face of other branches of government. For example, in Doe v. McMillan (1973) the Supreme Court rejected a lawsuit filed against members of the House and their staff members by parents alleging that the dissemination of a congressional report about the D.C. school system violated students’ privacy. The Court held that the clause protects “anything generally done” in the business of Congress, whether by a member or an aide. However, in the famous Gravel v. U.S. (1972), the Court did not allow the invocation of the privilege by a Senator who arranged for the publication of the Pentagon Papers, classified documents relating to the Vietnam War. The Senator had read some of these documents directly into the congressional record; and that was protected. But his involvement with a private publisher was held not to be sufficiently related to congressional business to afford him the protection of the clause.

The third issue addressed by this section concerns what is known as the Emoluments Clause. In actuality, this clause addresses two issues. First, a person cannot simultaneously serve as both a member of Congress and as some other government official. This provision has been relatively uncontroversial. The second provision, the one that deals with emoluments, however, has been somewhat contentious since the founding. In this context, an “emolument” is an employment-related benefit. The clause prohibits a member of Congress from leaving his elected post early to take up a position in the government that, during his or her time in Congress, was either newly created or given a pay increase. In other words, Congressman X cannot vote to create the “Office of More Money” and then leave Congress early to assume that office. Obviously, this is designed to limit possible corruption. But occasionally, when there is no assumption of corruption, Congress uses a workaround to install a member (whose term is not complete) into a position whose salary was increased when that member was in office. This is known as a “Saxby Fix,” named after a member of Congress that was appointed to the office of U.S. Attorney General by President Nixon. Senator Saxby had participated in an earlier vote to increase the salary of the Attorney General; and his term was not yet complete when President Nixon sought him for that office. So the President and Congress proceeded to pass legislation that reduced the salary for the office to the level it was at before the increase. Though this remains a controversial procedure, it has been used with relative ease by subsequent administrations, including when outgoing President George W. Bush and the then-Congress passed a Saxby Fix to get around Senator Hillary Clinton’s ineligibility for the office of the Secretary of State in the Obama administration (her Senate term was not complete and she had participated in a vote to increase the salary for the office in an earlier year).

Article 1, Section 7

Text of Article 1, Section 7:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The 'Travis Translation' of Article 1, Section 7:
Clause 1: Any bill raising money (taxes) must begin in the House of Representatives, but the Senate must agree with it, just like any other bill.

Clause 2: When a bill passes both the House and the Senate, the bill goes to the President who must sign it to make it the law. If the President agrees with the bill, the President signs it — but if the President does not agree with the bill, within 10 days, the President writes down why and sends that letter and the bill back to the House of Representatives or the Senate, wherever the bill got started. When Congress gets the letter and the bi II back from the President, the House of Representatives or the Senate puts it all in their journal. Then they talk about it again and vote on it again. If two-thirds of the Representatives and Senators vote for the same bill again, it becomes law. The Representatives and the Senators must have their votes written down on this vote in their journal. If the President does not sign the bill, or does not send the bill back to Congress in 10 days (not counting Sundays), then it becomes law, unless Congress officially leaves to go home (adjourns).

Clause 3: Each law passed by the House of Representatives and the Senate must be signed by the President — or the President must agree with it — and the ones the President does not agree with (those that get “vetoed”) must be passed by two-thirds of the House of Representatives and the Senate before it can be the law.

The seventh section of Article I deals with bills and vetoes.

In general, for a bill to become law, both Houses must approve of the bill, and then it is sent to the President for approval. This clause requires, specifically, bills relating to money to be first proposed in the House of Representatives and then sent to the Senate for approval (as opposed to other types of laws that may originate in either the House or the Senate).

Once a bill has been passed by both Houses, it is sent to the President. The President then has ten days to consider the bill. If he doesn’t do anything, it automatically becomes a law. If he approves of the bill, he may sign it, and it becomes a law. If he disapproves of the law, he can send it back to Congress with his objections. This is known as a veto. The bill then can only become law if both Houses of Congress override the veto.This can only be accomplished by a 2/3 majority vote in both Houses. Obviously this is not an easy task – of the thousands of vetoes issued by presidents, only a small percentage has been overridden.

Article 1, Section 8

Text of Article 1, Section 8:
The federal government in general, and the Congress in particular, is only in possession of the power delegated to it (see the 10th Amendment). Meaning, if Congress makes a law, not only may it not conflict with some limitation on Congress’ power (not being a discriminatory law, for example), it must also emanate from some provision in the Constitution that gives Congress its ability to make this sort of law.

The textual powers given to Congress can be found throughout the Constitution. But this section, Article One, Section 8, is the source of many of the most important powers. It is essentially a laundry list of powers delegated to Congress. These “enumerated powers” as they are known, range from the particular (Congress can regulate the value of coins) to the sweeping (Congress can tax), and have been the sources of much contention in the public consciousness and in the halls of the Supreme Court.

One of the most broadly interpreted – and controversial – powers emanates from what is known as the Commerce Clause. This power gives Congress the ability to “regulate commerce…among the several states,” whatever this may mean. The lines delineating what is and is not commerce have been in flux since the ratification of the Constitution itself. Moreover, a cousin to the Commerce Clause is the so-called Dormant Commerce Clause, which is an implied limitation on the states which precludes them from acting in a protectionist manner against the interests of interstate commerce.

Another especially broad and oft-cited power comes from the Taxing and Spending Clause. Congress has the power to “lay and collect Taxes…and provide for the common Defense and general Welfare” of the country using the money it has collected. But the contours and limitations of this power are hotly debated, especially in the modern era.

Underlying each of these powers, is what is known as the Necessary and Proper Clause, which allows Congress to do whatever else is ‘necessary and proper’ to carry out its other responsibilities.

Of course, there are numerous other enumerated powers which stem from this section of the Constitution. Congress, certainly, is authorized to accomplish a great many things.

The 'Travis Translation' of Article 1, Section 8:

The Commerce Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
As James Madison stated, “[T]he powers delegated by the proposed Constitution to the federal government are few and defined.” One of these so-called ‘enumerated powers’ is found in the Commerce Clause. The clause itself includes a few distinct powers, giving Congress the ability “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” However, as the authority to legislate regarding international commerce or commerce with Native Americans has not been of great controversy, when speaking about the Commerce Clause, it is almost always understood to mean simply the following words: “To regulate commerce…among the several states.The problem, though, has been the lack of clarity surrounding the terms in the clause. What, exactly, is “commerce”? What does commercial activity “among the several states” actually mean? Some Justices have viewed these terms in their narrowest senses. For example, Justice Thomas has said that “[a]t the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.” To Justice Thomas, the Commerce Clause only governs these specific actions, as well as only when those actions explicitly reach across state lines.However, generally, the Commerce Clause has been given a more expansive interpretation. In the all-important case of Gibbons v. Ogden (1824), the Court took up the case of those challenging a New York law that gave a monopoly to certain individuals for the operation of steamboats within the state. The challengers were attempted to secure their own license for a steamboat route between New York and New Jersey, pursuant to a federal law that allowed such licenses to be given. The Court could have narrowly interpreted the Commerce Clause. The Court could have held that “commerce” did not include navigation along water routes; and the Court could have held that “among the several states” did not include intrastate waterways – or even routes between one state and another where one state was regulating its own territory.However, the Court did not give the clause a narrow interpretation. Instead, in an opinion written by Justice Marshall, the Court held that “commerce” includes “commercial intercourse” and any actions that may fall under that broad category, and the Court also held that “among the several states” means “intermingled with.” The Court was emphatic that “[a] thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” Gibbons, therefore, stood for the proposition that the Commerce Clause was not as narrow of a power as it could be. Moreover, along with the Supremacy Clause, this meant that Congress could override any state statutes regulating the same commercial issue as the federal government (see also Dormant Commerce Clause).Jurisprudence surrounding the Commerce Clause has developed since the days of Gibbons v. Ogden (1824). It has gone through periods where it was given a more or less narrow interpretation. But today (this is largely taken from United States v. Lopez (1995), see below), it is generally understood to certainly allow Congress to regulate (1) channels of interstate commerce (like roads, railroads, air routes, and rivers), (2) instrumentalities of interstate commerce (like cars, trains, planes, and boats), and (3) persons of interstate commerce (like drivers, conductors, and pilots). Fourth, the Commerce Clause also grants Congress the power to regulate intrastate (meaning, within a single state) commerce, provided the commercial action in question substantially affects interstate commerce.It is this last piece that has been, and continues to be, the subject of the most debate. When measuring the substantiality of interstate commerce, the Court will look to a number of factors, including whether or not the activity in question can be labeled “economic,” whether there are Congressional findings on the issue that lend to the argument that this activity has some impact on interstate commerce, whether considering the activity to be economic in nature is attenuated and only the result of a piling on of inferences, and whether the issue is a traditional state or federal concern.What follows are three crucial cases that impact the modern understanding of the Commerce Clause. Gibbons v. Ogden (1824)

United States v. Lopez (1995)
Important Cases in Commerce Clause Jurisprudence Important Cases
In Heart of Atlanta Motel v. United States (1964), the Court again turned to a subject that it had dealt with in the past: whether Congress could pass laws restricting the ability of private individuals, running private businesses, to discriminate on the basis of race. In this case, a hotel that was near major interstate roadways – and whose patrons came mostly from out of state – prohibited African Americans from staying in its guest rooms. This, however, was in direct contradiction with the 1964 Civil Rights Act, which did not allow such action. The hotel argued that Congress could not force it to accept clients it did not want to accept, noting that the Equal Protection Clause (here, of the 5th Amendment), only applied to government actors. While the Court accepted the argument that the Reconstruction Amendments (13, 14, and 15) did not give Congress the authority to regulate such action, it still sided against the hotel, using the Commerce Clause. The Court held that, given the nature of hotels, especially those like the Heart of Atlanta Motel, restricting the availability of rooms for African American travelers would have a detrimental affect on interstate commerce. Therefore, the hotel could not defy the Civil Rights Act, and had to accept patrons irrespective of race.One of the most important cases from recent decades was United States v. Lopez (1995), in which, for the first time in modern history, the Court did not allow Congress to make a particular law using its Commerce Clause powers. In that case, Congress had passed a law outlawing guns within certain distances of schools. The Court, however, did not accept the government’s argument that such a regulation involved interstate commerce. Though individual states – not being bound to particular powers given to them in the U.S. Constitution – may pass such laws, Congress may not. But though that statute, as it was written, was held unconstitutional by the Court, Congress amended the law to only affect guns that have “moved in or that otherwise affect[s] interstate or foreign commerce.” While this may appear merely to be semantic change to appease the Supreme Court, this new version of the law has been upheld numerous times in the lower courts, and never challenged in the Supreme Court. But Lopez has been used by the Court in subsequent cases to further restrict Congress’ power under the Commerce Clause.However, the Court has not consistently invalidated Congressional acts under the Commerce Clause since Lopez. For example, in the contentious case of Gonzales v. Raich (2005), the Court upheld a federal law prohibiting the production of marijuana (even where allowed by particular states under medical marijuana statutes), accepting the government’s argument that the regulation of marijuana affected interstate commerce in that such a law affects the national marijuana market. Boynton v. Virginia (1960)

Heart of Atlanta Motel v. United States (1964)

Katzenbach v. McClung (1964)

United States v. Lopez (1995)

United States v. Morrison (2000)

Gonzales v. Raich (2005)
The Commerce Clause and the Affordable Care Act Important Cases
This background, then, formed the foundation for the much of the debate surrounding the Patient Protection and Affordable Care Act of 2010, or as it sometimes known, Obamacare. This Congressional statute changed healthcare law in the United States in several important ways; but the most controversial provision of the bill, in both popular and legal circles, was the so-called “Individual Mandate.” This section of the law required those without health insurance, but with the means to purchase health insurance, to either do so – or pay a certain amount of money.This act was challenged in court; and the government, among other arguments, asserted that Congress had the ability to pass this law under the powers given to it under the Commerce Clause. The argument was that the cost of health insurance was high and increasing. According to the government, this cost was in large measure due to people who choose to not purchase insurance. Invariably, many of these individuals get sick and have no recourse but to seek medical care in emergency rooms, where costs can be relatively high. Moreover, without insurance, many of these patients are stuck with ER bills they can’t pay – meaning, hospitals are stuck with bills that aren’t being paid. Therefore, to cover these losses, hospitals are forced to raise prices for everyone, driving up the cost of healthcare for all, even those that have purchased insurance.This argument, that the inaction of not purchasing health insurance could be regulated by Congress, was rejected by the Supreme Court in <National Federation of Independent Business v. Sebelius (2012). There, Chief Justice John Roberts, writing for the majority, did not accept the assertion that the Commerce Clause afforded the federal government the power to regulate inactivity. According to the Chief Justice, “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” Not doing something could not be prohibited by Congress.However, the law was still mostly upheld (including the Individual Mandate) under Congress’ Taxing and Spending Power, also one of the enumerated powers in Article I, Section 8. National Federation of Independent Business v. Sebelius (2012)

The Dormant Commerce Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
The Commerce Clause gives the federal government the authority to regulate commerce “among the several states” (see the Commerce Clause for what this power entails). States, however, are not bound by the enumerated powers of the Constitution. They have what are called “plenary” powers. Essentially, they can do whatever they wish – provided those actions don’t conflict with some negative prohibition in the U.S. Constitution. Either way, however, states don’t need to be affirmatively granted power by constitutional provision, like the federal government.


However, once the federal government is granted a certain power, that power is theoretically “concurrent.” Meaning, for example, with the Commerce Clause in place, both the federal government and the state governments have authority in the realm of commerce. The question becomes, then, to what degree does the Commerce Clause actually limit a state’s ability to regulate commerce?


The answer (among other provisions like the Supremacy Clause and the Privileges and Immunities Clause) is what is known as the Dormant Commerce Clause.


The Dormant Commerce Clause does not explicitly stem from any textual provision. It is entirely implied from the Commerce Clause. One of the underlying purposes of the Commerce Clause is to allow the federal government to prevent economic discrimination between states. Selling goods between Alabama and Mississippi should not be as difficult as selling goods between the United States and Russia. While somewhat sovereign, a state should not be permitted to pass laws benefiting itself that also burden another state. The Commerce Clause allows laws passed by the federal government to override state laws that affect interstate commerce. The Dormant Commerce Clause automatically invalidates a protectionist state law, whether or not the federal government has legislated on the issue.

 Gibbons v. Odgen (1824)
The Pike Test Important Cases
Whether a state law violates the Dormant Commerce Clause is generally governed by a test gleaned from Pike v. Bruce Church, Inc. (1970). In Pike, Arizona had passed a law requiring (sometimes at great expense) Arizona cantaloupe growers to label their product as coming from Arizona, regardless of where the cantaloupes were eventually packed and shipped from. The Court invalidated this law as protectionist, coming up with the following framework:


First, if the state or local law is specifically purposed with economic protectionism, it is automatically (or, ‘per se’) unconstitutional.


Second, if the purpose is not economic protectionism – and is otherwise legitimate – the Court will use a balancing test. It will examine the significance of burden that this law places on interstate commerce. It will ask if the value of the benefit outweighs the burden. In other words, as stated in Pike, “Where the statute regulates evenhandedly…it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”


While the Pike Test may appear complex, is it practically relatively simple. The following cases illustrate the test in operation.

 Pike v. Bruce Church, Inc. (1970)
Examples of Governments Failing the Pike Test Important Cases
In Hunt v. Washington State Apple Advertising Commission (1977), North Carolina imposed a packaging requirement on apples whereby they had to be labelled according to the USDA, a federal agency that oversees food quality, and not individual state labels. However, apples from Washington State were actually of a higher quality than even the best USDA apples. Forcing the Washington State apples to replace their labels with USDA stickers when sold in North Carolina essentially eliminated the quality advantage possessed by Washington State apples. The Court held that, indeed, this was a violation of the Dormant Commerce Clause. The purpose wasn’t outright protectionism. It was the standardization of apple packaging. But it had a protectionist effect. Out-of-state apples that may have been better than in-state apples lost their competitive edge. As the benefit of the law did not outweigh the burden on interstate commerce, the law was unconstitutional.


In City of Philadelphia v. New Jersey (1978), New Jersey prohibited out-of-state waste from entering New Jersey landfills. Though the Court did not find this to be per se unconstitutional, it considered the potential burden on interstate commerce if such regulations were allowed. Though a particular state may want to limit its exposure to out-of-state garbage, it may not essentially blockade waste from entering the state. This was economic protectionism, burdening out-of-state interests without enough of an in-state benefit, and therefore invalid.


In West Lynn Creamery, Inc. v. Healy (1994), Massachusetts placed a tax on all milk sales (in-state and out-of-state), but redistributed the money back to in-state milk producers, essentially subsidizing the in-state industry. This practically amounted to a tariff on out-of-state milk and was therefore unconstitutional.


In C&A Carbone, Inc. v. Town of Clarkstown (1994), the city of Clarkstown prohibited businesses from discarding certain waste anywhere but in an in-city private facility, which was actually more expensive to use than other facilities outside of the city. Though this was not a state being protectionist – it was a city – the Court still found this law to be unconstitutional.

 Hunt v. Washington State Apple Advertising Commission (1977)

City of Philadelphia v. New Jersey (1978)

West Lynn Creamery, Inc. v. Healy (1994)

C&A Carbone, Inc. v. Town of Clarkstown (1994)
The Market Participant Theory Important Cases
A notable exception exists to the Pike Test approach to the Dormant Commerce Clause that involves states acting as so-called “market participants” instead of market regulators. When a state passes a law favoring public facilities or entities, even if the law is explicitly for protectionist purposes, it is constitutional.


For example, in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007), New York forced private waste management companies to deliver waste to a particular public facility. Since this was a public facility, and not a private facility, the Court held that this protectionist law was constitutional. This case is especially noteworthy because of how similar it is to C&A Carbone, Inc. v. Town of Clarkstown (1994) (see above). Essentially, the only significant difference between the two cases – leading to two different results – was that in United Haulers, New York mandated using an in-state public facility, while in Carbone, Clarkstown mandated using an in-city private facility.

 United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007)
The Quarantine Exception Important Cases
Finally, an additional exception revolves around so-called “quarantine laws.” These are fairly simple. Even if the law is protectionist, if it is to keep something harmful out of the state, it is permitted. Essentially, this exception revolves around health and safety. A law preventing one state’s contaminated beef from entering another is, by definition, protectionist – but it is nevertheless protectionist for an acceptable reason. 

The Taxing and Spending Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
Though parts of the federal government’s power to tax (and use the money made from taxes) can be found in different provisions throughout the Constitution, it is this provision, in Article I, Section 8, that is at the heart of this ability: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”


In the early part of the 20th century, this clause was used by the Court to narrow Congress’ ability to tax and spend. In efforts to affect changes in state policy and state law, the federal government attempted to use the stick of taxes and the carrot of spending to incentivize states to comply with some federal program. For example, Congress wanted to regulate child labor laws. But, as far as the Constitution is concerned, no provision authorizes Congress to regulate in this area. As a governmental body of limited, enumerated powers, Congress could theoretically not make laws to affect such change. It is the states’ prerogative whether or not to regulate in an area where Congress does not have authority. However, in 1919, Congress passed a law attempting to use its taxing and spending power to incentivize changes in state child labor laws. This law imposed a tax on profits of a company that employed children. But in Bailey v. Drexel Furniture Co. (1922), the Supreme Court held this law to be unconstitutional. Congress was prohibited from using its taxing and spending power to essentially work around a limitation on its authority.

 Bailey v. Drexel Furniture Co. (1922)

United States v. Butler (1936)
Modern Conditional Spending Important Cases
Still, despite the period during which the Supreme Court tended to limit Congress power on economic matters (see the Lochner Era), the modern Court generally views Congress’ authority under the Taxing and Spending Clause as fairly broad. Not only have the limits on Congress’ powers to use the negative reinforcement of taxes to shape behavior been relaxes, but so has the so-called “Conditional Spending” power of Congress. Meaning, in certain circumstances, Congress may use targeted spending to incentivize states to act in a certain way. After all, Congress may use money to “provide for the…general welfare of the United States,” a grant of power that is now seen as fairly broad.


However, there are still contours to the Conditional Spending Power, understood to have generally been established in South Dakota v. Dole (1987). In South Dakota, the Court examined a law passed by Congress that withheld a portion of federal highway money from states whose legal drinking age was below 21. Holding this law to be constitutional, the Court delineated the following: (1) that the exercise of the spending power be able to be defined as for the “general welfare,” (2) that the Court substantially defer to the judgment of Congress as to whether something is for the general welfare, (3) that the conditional receipt of federal funds be “unambiguous,” (4) that there be some nexus between the condition and the project for which the money is being given, and (5) that other constitutional provisions not independently bar the conditional grant of the funds.


For example, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006), the Court held the Solomon Amendment to be constitutional. The Solomon Amendment was a law that denied federal funding to any school which did not allow military recruiters the same access to students as other private employers. Law schools sought to not comply with the law because, at the time, the military abided by the ‘Don’t Ask, Don’t Tell’ policy, which the schools labeled discriminatory. However, finding that the conditional spending complied with the South Dakota framework, the Court upheld the law.

 Hampton & Co. v. United States (1928)

Magnano Co. v. Hamilton (1934)

South Dakota v. Dole (1987)

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
The Affordable Care Act: The Constitutionality of the Individual Mandate Important Cases
Recently, in National Federation of Independent Business v. Sebelius (2012), the Supreme Court relied heavily on the Taxing and Spending Clause to uphold most of the Affordable Care Act (also refereed to as Obamacare), as well as to declare part of it unconstitutional.


Though this healthcare law is vast and complex, the two major provisions dealt with in this case concerned what is called the ‘individual iandate’ (held constitutional under the Taxing and Spending Clause) and an expansion of Medicaid (held partially unconstitutional under the Taxing and Spending Clause). The individual mandate requires every American to have health insurance. Those who cannot afford insurance will be given subsidies to purchase it. Those who can afford insurance, but choose not to do so, will be subject to a fine. The underlying reasoning of this fine is as follows: someone who has the ability to purchase health insurance but doesn’t is burdening the cost of insurance for those who do purchase it. When the uninsured does get sick or injured, he or she has nowhere to turn but the emergency room, where the cost of healthcare is high. Then, this person may be suddenly stuck with a bill that he or she is unable to pay for. But because the hospital is obligated to provide care for all, it still expends the money to care for this patient – but then doesn’t get paid. Therefore, the hospital has no choice but to raise the cost of care for everyone, even those with insurance.


The most popular argument among legal scholars and media pundits, in the days leading up to the Court’s decision on this case, was that the Justices would either strike down the mandate or uphold it under the Commerce Clause. The side arguing that it was unconstitutional said that the federal government did not have the ability to require people to purchase a product (the insurance). The side arguing that it was constitutional said that those with the ability to purchase insurance, but who chose to do so, were impacting interstate commerce detrimentally – the consequences of the decision to forgo health insurance reached beyond themselves.


In the end, the Court did hold that, under the Commerce Clause, the individual mandate was unconstitutional. Congress could not force people to purchase insurance under its power to regulate interstate commerce. However, the Court did find the mandate constitutional under the Taxing and Spending Clause. The aforementioned fine – called a penalty by some – was, in actuality, nothing more than a tax, said the majority of the Court. In fact, it is the Internal Revenue Service that is charged with managing this aspect of the law. This means that, according to the Court. people weren’t being forced, per se, to buy insurance. Rather, those that didn’t were being subject to a tax – it was a simple case of Congress using its Taxing and Spending power to incentivize behavior, which is constitutional.

 National Federation of Independent Business v. Sebelius (2012)
The Affordable Care Act: The Unconstitutionality of the Medicaid Expansion Important Cases
However, the Court did not uphold the entire healthcare law. There was a portion of the law that required states to expand Medicaid coverage. Medicaid is an existing entitlement program that provides healthcare for the poor, much like Medicare provides healthcare for the elderly. Both states and the federal government provide for the funding of Medicaid. Under the Affordable Care Act, Congress requires states to enlarge their pool of Medicaid recipients. Under the law, before the Supreme Court decision, if states complied, they would get some additional federal money – but, over time, states would be increasingly responsible for the financial burden of the Medicaid expansion. If states refused, the federal government would withhold existing funding for state Medicaid programs.


The Court held that this provision left the realm of conditional spending and incentivizing, and entered the realm of coercion. Under the framework established by the 10th Amendment, as well as the requirements of conditional spending as laid out in South Dakota (see above) and subsequent cases, such usage of the Taxing and Spending Clause is actually unconstitutional. When states have no choice but to comply (as was practically the situation in the face of losing existing Medicaid funding), it is as if Congress is directly regulating in an area in which it has no authority.

 National Federation of Independent Business v. Sebelius (2012)

The Necessary and Proper Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
The Necessary and Proper Clause Important Cases
The final provision of Article I, Section 8 is known as the Necessary and Proper Clause. It gives Congress the ability “[T]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, Congress is also given the authority to act to further any of its express powers, even if the particular action isn’t expressly delineated. Thus, this clause theoretically authorizes implied powers, provided that the actions Congress takes can be generally grounded in some other constitutional provision.While this clause is written into the text of the Constitution, it was expounded on by the Supreme Court in McCulloch v. Maryland (1819), which is still today considered to be of extreme importance in understanding the meaning of the Necessary and Proper Clause.In McCulloch, the Court dealt with the federal government’s establishment of a national bank. The state of Maryland sued the government, alleging that, because the Constitution did not expressly grant Congress the authority to set up a bank, it did not have such an ability. Therefore, argued Maryland, the bank was unconstitutional. The Court, however, disagreed. It looked to the Necessary and Proper Clause to assert that Congress’ authority is not limited to the express provisions. There was some flexibility in the text, argued Chief Justice Marshall, writing for the Court. It is here that the Chief Justice wrote the words that are still regularly cited in court cases and academic treatises alike: “In considering this question, then, we must never forget, that it is a constitution we are expounding.”


More technically, the Court held that, although the Necessary and Proper Clause could be read narrowly (only authorizing whatever is absolutely necessary to uphold the other provisions of the Constitution), the Court interpreted the clause broadly: provided Congress’ goal could legitimately be said to relate to some express provision, the Necessary and Proper Clause permitted action to achieve that goal. The Court considered the establishment of a bank as legitimately relating to Congress’ express authority to tax and regulate commerce.

 McCulloch v. Maryland (1819)

Additional Enumerated Powers

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
The Congress only possesses the powers given to it by the Constitution. Many of these powers are found in the clauses of Article I, Section 8. But while some of these provisions, like the Commerce Clause and the Taxing and Spending Clause, are the sources of tremendous amounts of legislation, litigation, and academic debate – some of the Section 8 provisions get much less attention.


Below are brief descriptions of just a few of these provisions. But even this list is incomplete. Some of Congress’ powers – like its ability to regulate the weight of coins – are just not the subjects of much notable constitutional discussion.

 
The National Debt Important Cases
One of the most hotly contested political issues today is that of the U.S. national debt. This is the total amount of money the federal government owes to individuals or other countries. The national debt is created by the national deficit, the annual amount of money that is the difference between the income the government takes in (for example, through taxes) and the money the government spends (for example, through Medicare). When spending exceeds income, the government runs a deficit. The United States has run deficits for more years in the past century than it has run surpluses (when income exceeds spending). But today, as both the deficit and debt loom large, both parties understand the fiscal situation to be problematic – but they have, as yet, been unable to put forth workable, and agreeable, solutions as to how the United States can live within its means.


As the Constitution makes plain, it is Congress’ responsibility to take care of the national debt, as it is expressly given the authority “[t]o borrow Money on the credit of the United States.”

 
The Copyright Clause Important Cases
Congress is also given the authority “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”


Simply, this gives the federal government the power to regulate copyrights and patents. Copyrights are generally those government issued protections of an author’s writing – ensuring that it may not be copied by someone else until after a certain period of time has passed. Patents are generally those government issued protections of an invention or process – ensuring that it may not be copied until after a certain period of time has passed. Currently, for copyrights, Congress has set the period of time that a work can be copyrighted as (generally) the life of the author and 70 years. Currently, for patents, Congress has set the period of time that something can be patented as (generally) 20 years.


In this realm – of laws that protect intellectual property – there is a third domain: trademarks (logos or signs, etc.). It is noteworthy, then, that the Copyright Clause does not actually grant Congress the authority to protect trademarks. In the 19th century, Congress did attempt to enact legislation to protect trademarks – but the Supreme Court, in the Trademark Cases (1879) held that Congress had no such authority to do so under the Copyright Clause. Instead, in the wake of Trademark Cases, Congress has passed subsequent trademark legislation pursuant to its powers under the Commerce Clause. This clause, which allows Congress to regulate commerce among the several states (see the Commerce Clause), now provides the federal government with the ability to regulate trademarks. While Congress still makes laws relating to copyrights and patents under the Copyright Clause.

 Trademark Cases (1879)

Association for Molecular Pathology v. Myriad Genetics, Inc. (2013)
Declarations of War Important Cases
Quite explicitly, Congress is given the constitutional authority “[t]o declare War.” However, despite this blanket grant of power, the dividing line of power between the Congress and President with regard to war has been – and continues to be – contentious.


Of the many military conflicts engaged in by the United States, the vast majority of them have been “undeclared” (for example, the Korean War, and the recent U.S. involvement in the revolution in Libya). Even as far back as during the presidency of John Adams, part of the so-called ‘Quasi-War’ with France in the late 18th century was fought without an official declaration of war from Congress.


Instead, Presidents have repeatedly used their executive authority over the armed forces to engage in conflicts without direct congressional authorization. Sometimes, this creates no conflict, and Congress follows with some measure of approval. But often, Congress has seen this as a usurping of its power.


In fact, toward the end of Vietnam War, another long conflict without grounding in a specific Congressional declaration, Congress passed the War Powers Resolution. This law was designed to thwart the ability of a President to circumvent Congress in the initiation of hostilities. The law states that any military engagement authorized by the President must cease within 60 days if Congress does not authorize the action itself.


This law, however, has been regularly ignored by presidents in the past decades, as an unconstitutional violation of the separation of powers. Congress continues to see the power granted to it by this clause of the Constitution diminished.

 
Authority Over Washington, D.C. Important Cases
Washington, D.C. is unique. By virtue of a clause in the U.S. Constitution, it is not controlled by a local government. Instead, it is controlled directly by Congress, which was given the authority “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”


In other words, Congress directly runs the capital city of the United States. Over the centuries, residents of Washington have lobbied for more and more control over their own affairs. To a degree, they have received it. In 1973, Congress passed the “District of Columbia Home Rule Act,” a law that allowed the city to elect a mayor and a council, and pass laws all on its own. Still, Congress retained a large measure of control over the city. Uunlike any other city in the country, Congress could repeal the Home Rule Act, and retake direct control for every aspect of Washington’s governance.


Perhaps even more controversial than Congress’ direct authority over Washington, D.C., is the city’s lack of representation in either the Senate of the House of Representatives. Washington, like other territories such as Guam and Puerto Rico, have no voting representation in Congress (they do get to vote in Republican and Democrat presidential nomination primaries and they do have non-voting representatives called “Delegates” in the House that are allowed to observe and act in some limited ways). But unlike those territories, Washington does not enjoy the federal tax benefits of not being a state. Instead, residents of Washington both pay federal taxes, as if they were residents of a state, and do not have representation in the federal legislature. This has actually given rise to the recently popular city slogan of “Taxation Without Representation” (which actually now appears on D.C. license plates).


So powerfully does this idea resonate with D.C. residents, that, for decades, voters have elected so-called “Shadow Senators” and “Shadow Representatives.” These elected officials (not to be confused with the Delegates) are charged with lobbying Congress to grant Washington the same rights as those in the 50 states: representation in Congress.

 
Other Powers Important Cases
There are still many other enumerated powers listed in Article I, Section 8 that have not been dealt with here. They include the ability to regulate immigration, bankruptcies, coins, post offices, international law, and the structure of the army and navy. To be sure, so many of these powers are crucial for the government to function properly. Maybe part of the reason why they are so rarely dealt with in a constitutional setting is because, unlike some others, they function efficiently and without controversy. 

Article 1, Section 9

Text of Article 1, Section 9:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 'Travis Translation' of Article 1, Section 9:
Clause 1: The slave trade cannot be banned by Congress until at least 1808, but a tax of up to $10 can be put on imported slaves. [Slavery was banned by the 13th Amendment.]

Clause 2: Rights of people in jail to make the government show why they are in jail can be taken away only if there is a rebellion, or if the United States is invaded by a foreign power. Clause 3: Congress cannot pass a law to declare someone guilty of a crime. Criminal laws passed by Congress can be applied only from the time they are passed.

Clause 4: Congress must tax according to the number of citizens there are in the country, according to the Census. [The 16th Amendment changed this so Congress could charge and collect taxes any way they wanted.]

Clause 5: Congress cannot tax things sold from one state to another state.

Clause 6: Congress cannot prefer one port over another, and no ships from one state can get taxed for using another state’s port.

Clause 7: No money can be spent without Congress passing an Appropriations law, and they must publish a regular Statement of the Treasury Account from time to time.

Clause 8: Congress cannot give anyone any title of nobility (King, Queen, Prince, Lord, etc.), and no officer of the United States can accept any title, office or payment of any kind from any other country.

After listing the various powers that Congress has, the Constitution turns to powers that Congress does not have. First, Congress may not ban the importation of slaves into the United States until the set date of 1808. Second, Congress may not unnecessarily ban the so-called “writ of habeas corpus,” or the ability of prisoners to inquire after the legality of their imprisonment. Third, Congress cannot convict a person without a trial nor prosecute someone for a crime committed before that action even became a crime. Fourth, Congress cannot directly tax the people unless those taxes are proportion with the populations of their respective states (see the 16th Amendment). Fifth, Congress cannot place a tax on goods going from one state to another like a tariff between two countries. Sixth, Congress cannot make laws showing a preference to one state’s port over another. Seventh, Congress cannot spend money unless a law has been passed allowing it to spend money, which must be made public regularly. Eighth, Congress cannot give a person any title of so-called “nobility,” the inherited titles that stemmed from medieval Europe and continued in the United Kingdom, nor could a U.S. citizen accept any such titles or other positions or honors from other countries without Congress’ consent (this last provision has been haphazardly applied from one extreme to the other: a constitutional amendment was passed by Congress in 1810 and never ratified by enough states that would have automatically revoked the citizenship of anyone accepting such a foreign honor, while other times in American history Congress has explicitly allowed the acceptance of such honors).

Article 1, Section 10

Text of Article 1, Section 10:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s [sic] inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The 'Travis Translation' of Article 1, Section 10:
Clause 1: No state can ally with another country; make war; make their own money; allow private boats and vessels to catch and arrest enemy ships; or issue their own bills for credit. States must make only silver and gold to pay for things. States cannot pass any law to disgrace people accused of dishonor. States cannot pass a law that goes back in time. Laws can be applied only after they are passed. States cannot pass a law that messes up contracts already made. States may not give people a title of nobility.

Clause 2: States must have the permission of Congress to charge money for the buying and selling of things that come into the country and things sold outside of the country. If states pass laws to charge money for things that come into and go out of the country, all the money collected will go to the United States Treasury. Congress can make laws to change or control these state laws.

Clause 3: States must have Congress’ permission to keep armies, or warships during peacetime. States will need Congress’ permission to join forces with another state or with a foreign power, or to make war, unless they are invaded and the United States troops cannot get there in time to help.
Like Article I, Section 9, this section deals with limitations. Here, the Constitution places limits on the laws a state may pass. In these three clauses, the Constitution prohibits a number of seemingly unrelated things. However, they are all theoretically linked by the notion that, with the ratification of the Constitution, states gave up a portion of their sovereignty. States are not countries. Therefore, they may not legislate like they are countries.

In the first clause, among other prohibitions, states are forbidden from making treaties, creating money, and holding people accountable for crimes committed before those acts were made crimes. However, the provision in this clause that has been the source of the most study is the segment that prohibits a state from making a “Law impairing the Obligation of Contracts.” In fact, this entire clause has been known as the “Contract Clause” because of the importance of that provision. Simply, it prohibits states from making laws that interfere with contracts that have already been created. In the early years of the country, this provision was considered sacrosanct. For example, in Fletcher v. Peck (1810), the Georgia legislature sought to void land contracts that it had made in a previous session after learning that the original contracts were issued in exchange for bribes. However, the Supreme Court held this action unconstitutional. Once a contract is made, the Contract Clause prohibits interference by the government. However, the clause has since been watered down in the modern era. In Home Building & Loan Association v. Blaisdell (1934), the Court examined a Minnesota law that prohibited banks from foreclosing on homeowners in default. Conceptually, this was an interference with a contract – the exact type of law that the unqualified Contract Clause appears to prohibit. However, the Court considered this an insubstantial enough interference for a significant enough purpose (this was during the Great Depression, after all) and did not hold the law unconstitutional. Thus, today, the Court generally holds that a state may interfere with a contract given sufficient justification. It is no longer and black and white issue.

The second clause further prohibits another marker of independent nations, placing tariffs on imports and exports. In the third clause, states are prohibited from creating an army and making alliances or wars.

Indeed, as Congress was imbued with authority, the power of state legislatures diminished. They were no longer quasi-countries loosely bound by the Articles of Confederation. They were the new United States of America.

Fletcher v. Peck (1810) Home Building & Loan Association v. Blaisdell (1934)

Article 2, Section 1

Text of Article 2, Section 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

The 'Travis Translation' of Article 2, Section 1:
Clause 1: The leader of the country will be the President of the United States. The President will be elected every four years, along with a Vice President, like this:

Clause 2: The legislature of each state decides how that state will name a number of people called “Electors.” The number of electors will equal the number of Representatives and Senators of that State — but Senators, Representatives, or other government officers cannot be electors. (If a state has four Representatives and two Senators, it has six electors in what is now known as the Electoral College.)

Clause 3: The electors meet in their states and vote for two people. At least one person for whom they vote cannot live in that elector’s state. The Electors will make a list of all the people they voted for, and how many votes each person got. Then they sign and certify the list, and send it to the President of the Senate in the seat of the United States Government (in Washington, D.C.). The President of the Senate opens all the States’ certificates in front of the Representatives and Senators, and then the votes are counted. The person with the majority of electors’ votes will be the President. If more than one person has the same number of electors’ votes, the Representatives will immediately choose one of them by a vote. If nobody has a majority, then the Representatives will choose a President from among the five people who got the most electors’ votes. But if the Representatives have to choose a President like this, the vote will be taken by States, and each state has only one vote. At least two-thirds of the Representatives must be present to choose a President like this. If the President has to be chosen like this, the person with the next most electors’ votes will be the Vice President. If there is a tie, the Senators vote for the Vice President. [The 12th Amendment and the 23rd Amendment changed this process]

Clause 4: Congress picks the time of choosing of electors, and the day they vote. It will be the same day in all States.

Clause 5: The President must be born a United States citizen, be 35 years old, and have lived in the United States for 14 years.

Clause 6: If the President dies, leaves office, is kicked out of office, or is unable to do the job — the duties of President fall to the Vice President. Congress will decide how to handle things if the President or Vice President dies, leaves office, gets kicked out of office, or is unable to do their jobs. Congress will figure out which officer will act as President if the elected President or Vice President is unable to do their job, until the elected President or Vice President can do their job again, or until another President is elected. [This got more specific with the 25th Amendment]

Clause 7: The President will get paid for serving as President, and the pay cannot go up or down while that person serves as President. The President cannot get paid anything but salary from the United States while President. The President cannot get money from any State.

Clause 8: When the President takes office, this is the oath: “1 do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

Article II governs the powers and limitations of the Executive branch of the Government, led by the President. The Executive branch of government is tasked with the actual implementation and administration of the laws that Congress creates.

Clause 1: Vesting Clause and Inherent Executive Power

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 1: Vesting Clause and Inherent Executive Power Important Cases
Section 1 generally outlines the form of the executive branch and how someone becomes president. The first clause is a vesting clause, which gives the President the power of the Executive. The extent of this power, however, has proven controversial from the era of the Founding Fathers up to today. Unlike the vesting clause in Article I, Article II’s clause does not use the words “herein granted” when describing Presidential powers. Some, like Alexander Hamilton, believed that this wording meant the executive branch had “inherent” powers that were not specifically outlined in the Constitution. Others, like James Madison, believed that the powers of the President were expressly determined by the Constitution. The tension between these two doctrines has played out throughout history between the Executive branch and the Court.


One of the most important decisions addressing this issue of inherent presidential power is Youngstown Sheet & Tube Co. v. Sawyer. During the Korean War, steel workers threatened to go on strike due. President Truman seized the steel mills and operated them under the government in order to keep up production for the war effort. The steel mill owners sued, and the government argued that the President had the inherent power to seize the mills in order to prevent a “national catastrophe.”


The Supreme Court disagreed with the government’s position, holding that the seizure of the mills exceeded the President’s power by a 6-3 vote. Seven different opinions were written, with several differing explanations for the decision being provided.


Justice Black wrote the majority opinion, which took an absolutist position: there was no inherent power, the President was limited to powers expressly written in the Constitution or provided via law by Congress.


Justice Douglass adopted an “interstitial” approach: the President could act outside the express words of the Constitution or statute as long as the powers did not take or infringe upon the other branches. Since Congress was already allowed to seize and pay for property, taking the mills would have been more suited for the Legislative branch.


Justice Jackson, in an influential concurring opinion, expressed his belief that the President could act as long as the action wasn’t forbidden by the Constitution or statute. Since Congress had expressly denied the President the ability to seize the factories with earlier legislation, he could not assume that power. The most enduring section of Jackson’s concurrence ranks three different situations where the President’s power to act differs. When the President acts directly under Congressional approval, his powers are at his strongest. When the President acts in a way not expressly allowed or rejected by Congress, the specific circumstances will determine the constitutionality on a case by case basis. Finally, when the President acts incompatibly with Congress, his powers are at the lowest and will only be allowed if Congress’s law is unconstitutional.


The last stance, expressed in the dissent, is that of Chief Justice Vinson: broad inherent authority. This belief had since been important on issues of the President’s powers to conduct foreign relations, rather than internally.

 Youngstown Sheet & Tube Co. v. Sawyer (1952)

Clauses 2, 3, 4: Presidential Elections

Text of Constitution:
The 'Travis Translation' of Constitution:
Clauses 2, 3, 4: Presidential Elections Important Cases
The second and third clauses deal with the Electoral College and the means by which the President is elected. The Twelfth Amendment made significant changes to this procedure.

The fourth clause states Congress can determine the timing of choosing electors. Although the federal government can choose the time when electors must be chosen and give their votes, the Constitutional power to determine the manner in which they are chosen resides with the states.
 

Clause 5: Eligibility for Presidency

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 5: Eligibility for Presidency Important Cases
The fifth clause determine the eligibility of a person to run for President. The Supreme Court has held that naturalized citizens are the same as native citizens except in on regard: naturalized citizens may not run for President. 

Clause 6: Succession

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 6: Succession Important Cases
The sixth clause outlines the path of succession in the event that the President dies or is removed from office. Initially there was some debate as to whether when the President was removed, the Vice President became the new president, or rather was simply an “acting” president in the meantime. This was settled when President Harrison died in office and his Vice-President Tyler was sworn in as President, starting a tradition for all future succeeding Vice Presidents. 

Clause 7: Salary, Clause 8: Oath

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 7: Salary, Clause 8: Oath Important Cases
The last two clauses are very straight forward, determining how the President is paid and the oath which he must take before assuming the job. 

Article 2, Section 2

Text of Article 2, Section 2:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The 'Travis Translation' of Article 2, Section 2:
Clause 1: The President is the Commander-in-Chief, in charge of the Army, Navy and all the armed forces of the United States. The President is also in charge of the National Guard of the States if the Guard is working for the United States. The President may get the officers of the executive departments to write down their ideas about anything of which they are in charge. The President can pardon people for crimes against the United States, except when those people get impeached by the House of Representatives and found guilty by the Senate.

Clause 2: The President has the power to make treaties, with the advice and permission of two thirds of the Senators present. The President will also appoint, with the advice and permission of two thirds of the Senators, Ambassadors (U.S. representatives in other countries), Supreme Court Judges, and other U.S. officers. Congress must approve the President’s treaties with a two-thirds vote of Senators present. Congress will decide how other appointments will be handled. Congress can let the President, the courts, or Department heads appoint other officers as they see fit.

Clause 3: If Congress is not in session, the President can fill vacancies whose term ends at the end of the next session of Congress.
Section two of Article II lists the express powers given to the Executive branch, and thus, the President.

Clause 1: Commander in Chief

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 1: Commander in Chief Important Cases
Article II Section 2 begins with the Commander in Chief Clause, stating the President is the commander of the nation’s armed forces. While the Constitution vests Congress with the ability to declare war, it is the Executive that actually manages and commands the armed forces once war has been declared. This has inevitably created a continuing friction between the two branches, particularly when it comes to declaration of war.The clearest Supreme Court precedent on the matter is the decision in the Prize cases. Prior to the official declaration of the Civil War, President Lincoln ordered a blockade of the southern states. Many ships were seized – under admiralty law, if a ship was seized during war it could be kept as a “prize”, otherwise the taking of the ships would be considered piracy. Congress only approved of the President’s actions and the war after the blockade had already begun. The Court determined that the President did not need prior Congressional approval in order to start blockades as a war tactic against the South. The Court reasoned that rebellions as well as attacks against the United States both represented unique situations – war was being declared on the United States by either of these actions. In those specific cases, the President had to act quickly to protect the country, and could order military action without prior approval.


Challenges to a president’s use of military force can be difficult to bring before the Court. The courts are likely to refuse to decide on any cases they deem “political questions” – decisions that would reflect policy choices better suited for Congress, rather than constitutional issues determined by the Court. Many cases filed during the Vietnam War and other conflicts since have been dismissed this way.


One hotly debated topic regarding the Executive’s powers is the detention and prosecution of enemy combatants. This issue first was first addressed in Ex Parte Milligan, a decision issued shortly after the end of the Civil War. The defendants in that case had planned to attack Union prisoner of war camps, but were captured and sentenced to death by a military tribunal in Indiana. During this time, President Lincoln had suspended habeas corpus. The defendants challenged their convictions given by the military tribunals, and the Court overturned the convictions. The Court did not dispute the suspension of habeas corpus, but determined that since the defendants were not soldiers and the normal criminal courts were still open, the military tribunals could not be used. Since Indiana had never been a rebel state and the courts had never ceased to function, Congress could not allow military tribunals against non-enemy combatants.


Most recently the issues of executive power, military tribunals, and enemy combatants have come to the forefront of discussions about the global war on terrorism. Hamdi v. Rumsfeld, decided in 2004, and touched on these issues. Hamdi, an American citizen, was captured in Afghanistan and held as an enemy combatant. He was detained for two years without trial or charges on the basis of his capture and slim evidence. His father filed a habeus corpus petition, challenging his detention. The government argued that since Hamdi was considered an enemy combatant, he was not owed any form of due process or judicial review. The Supreme Court addressed two issues. Could the US detain an American captured abroad and try him before a military tribunal? What due process should Hamdi be given?


In a 5-4 vote, a plurality of the Court held that Hamdi could be held as an enemy combatant. The plurality reasoned that Congress’s Authorization for Use of Military Force (created after 9/11 to authorize the military to attack Al-Qaeda related individuals) allowed for Hamdi’s detention as an enemy combatant. The AUMF activated the President’s war powers. Justice Thomas wrote a concurrence where he stated that the President also was justified in detaining Hamdi as an enemy combatant under his Article II powers.


Justice Scalia wrote a strong dissent to this part of the decision, arguing that the only way an American citizen could be held as an enemy combatant without charges or a trial was if habeas corpus was officially suspended, which the Authorization for Use of Military Force did not do.


On the second issue, the Court was far more unanimous: Hamdi’s habeas petition could be heard, and he must be afforded due process. This included access to counsel and the ability to review evidence and charges against him.


In the 2006 decision Hamdan v. Rumsfeld, the President’s ability to use military tribunals was called into question. President Bush established military commissions (military courts that operate differently than normal courts) to try enemy combatants facing terrorism related charges. Hamdan, a yemini accused of being Osama Bin Laden’s bodyguard, challenged the legality of the military commissions. He claimed they violated international human rights law because they provided much less protection than the processes of a normal court. The government argued that the president had the authority to make the military commissions because Hamdam was accused of violating the laws of war, and that Congress had authorized the President under the AUMF. The government also argued that the commissions provided enough legal protections and that the Supreme Court was actually not even allowed to hear the case.


The Court determined that it did have jurisdiction, and that the military commissions could not proceed because they violated the law. Although the majority recognized that the President could create military commissions, it pointed out that this had limits: military commissions were used either in occupied territory, when other courts were not operating, or when the defendant being tried has violated the laws of war. Without this, the President would need a statute passed by Congress expanding his authority to create military commissions.


The Court determined that the AUMF did not give the President extra authority to create military commissions – therefore the military commission was only justified because Hamdan would be accused of violating the laws of war. However, even if that was the case, the military commissions had to follow these laws as well. The Court determined that multiple aspects of the commissions violated the Geneva Convention, and therefore the commissions could not continue.

 Prize Cases (1862)Ex Parte Milligan (1866)


Hamdi v. Rumsfeld (2004)


Hamdan v. Rumsfeld (2006)

Clause 1: Pardons

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 1: Pardons Important Cases
The first clause of section two also gives the President the power to pardon individuals of any federal crime, aside from impeachment. In Ex Parte Garland, an attorney was given a pardon after the Civil War’s end. The decision affirmed that a presidential pardon could be provided before, during, or after the legal proceedings, for any crime. This pardon allowed the lawyer in Garland to have his ability to practice law restored as well.However, pardons do not remove civil liability. In Ex Parte Grossman, the defendant illegally sold and served liquor at his establishment. After being caught and given a restraining order to cease serving alcohol, he violated the court order and was found guilty of contempt of court. The President pardoned the defendant, but the district court ordered him to serve time for the contempt regardless. The Supreme Court upheld this decision, differentiating between civil and criminal penalties. A pardon could remove criminal penalties, because these penalties only served to punish the offender. However, civil liability focused on the injured party – civil liability aims to make the victim whole, rather than necessarily punish the defender. Therefore a pardon of a civil liability would hurt the injured party. The Court also referred to English common law, where this same distinction was made.


A pardon does not necessarily need to completely forgive an offense, either. In Biddle v Perovich, a man convicted to death for a murder had his sentence commuted to life in prison by a Presidential pardon. The Supreme Court upheld the pardon and noted that a pardon from the President was an ultimate decision done for the public’s general welfare, and that it could not be denied, even by the pardoned individual.


Pardons can also be given out to groups rather than individuals. This was done after the Civil War, as well as to anyone who dodged the draft in the Vietnam War.

 Ex Parte Garland (1866)Ex Parte Grossman (1925)


Biddle v. Perovich (1927)

Clause 1: Cabinet

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 1: Cabinet Important Cases
This first clause additionally establishes the Presidential cabinet – the principle officers of executive branch departments and agencies which the President can ask for opinions on matters. 

Clause 2: Treaty Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 2: Treaty Clause Important Cases
The second clause of Article II Section 2, the Advice and Consent Clause, contains two separate Presidential powers – both requiring the consent of the Senate.The Treaty Clause allows the President to negotiate and enter into agreements with foreign countries upon the approval of the Senate. Treaties that have been adopted by the Senate are permitted as long as they don’t violate the Constitution. In Reid v. Covert, the cases of two civilian women who had murdered their active military husbands while accompanying them abroad on duty, were at issue. Both were tried under US military tribunals due to an agreement with the foreign countries they committed the murders in. The treaties gave exclusive jurisdiction to US military tribunals over criminal acts committed by Americans in the military or accompanying military members when overseas.


The Court held that that was unconstitutional, because geographical limits did not change the fact that the accused were American civilians. They held that the treaty violated the Constitution because by allowing the military to try American civilians in tribunals, the treaty gave a branch of the government more power than was allowed by the Constitution.


Treaties are binding throughout the country and can overrule state law, however. The 1920 decision Missouri v. Holland established this, when the Supreme Court upheld a treaty between the United States and Great Britain that protected certain migratory birds from being hunted. Missouri sued, arguing that the treaty interfered with the state’s rights reserved under the 10th Amendment. The Court rejected this argument, with Justice Holmes stating that treaties were allowed under Article II and the supreme law of the land under Article VI, and were different than any other law passed by Congress – treaties could in fact have broader power.


It is important to note that there are different kinds of treaties that the US government recognizes, despite only one form being explicitly laid out in the Constitution. Treaties require 2/3 vote approval of the Senate. Congressional-Executive Agreements require additional laws to be passed by Congress, and these are treated like any other statute. Sole-Executive treaties are the last and final kind of treaty, requiring only ratification by the President, but can only be on issues under the President’s control or authorized by Congress. Some treaties are “self-executing”, meaning they don’t require additional laws to be passed, while the rest require additional domestic legislation to be passed as normal.


Missouri v. Holland has proven to be a controversial case in the time since, with some disputing that there should not be a difference in treatment between a statute and a treaty under the 10th amendment. Most recently, critics hoped that the 2014 decision in Bond v. United States would overturn Missouri v. Holland, but the opinion avoided the issue instead.

 Reid v. Covert (1957)Missouri v. Holland (1920)


Bond v. United States (2014)

Clause 2: Appointment Power

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 2: Appointment Power Important Cases
The Appointment Clause allows the President to nominate Supreme Court justices, ambassadors, officers, and inferior officers (if allowed by Congress) with the approval of the Senate. The clause acts as a balance of power between the two branches – Congress cannot weaken the Executive branch by appointing its own supporters, but the President’s appointments must still be approved.Under this clause, Congress can pass laws which specifically give the President, heads of executive departments, or the courts the ability to approve appointments of “inferior officers”. This led to the question of who exactly was considered an inferior officer. In the 1988 Morrison v. Olson decision, the Court upheld the appointment by federal judges of an “independent counsel” created by the Ethics in Government Act to investigate abuses of power by federal officials. The Court determined that this independent counsel was an inferior officer because he could be fired after showing of good cause by the attorney general, he had less power than the attorney general, and the length and mission of the appointment was limited by the appointing court. Since he was an inferior officer, and Congress had given the judiciary the ability to appoint him via law, the independent counsel was constitutional.


The power of the President to dismiss appointed officials is not mentioned in the Constitution. However, the ability to do so has been developed over time. In the 1926 decision Myers v. United States, the firing of a postmaster was at issue. Postmasters are part of the executive branch, yet Congress had passed a law prohibiting their firing without advice and consent from the Senate. Writing for the majority, Chief Justice Taft upheld the firing, holding that the ability of removal was solely an executive function, and that the act Congress passed to prevent this was an unconstitutional limit of executive power.


However, the Court shifted course several years after Myers, in the decision Humphrey’s Executor v. United States. Congress passed an act which only allowed for the Federal Trade Commissioner to be removed from office for particular offenses. The Court upheld this act under the reasoning that the Federal Trade Commissioner was a “quasi-legislative” agency, whereas Myers’ holding controlled purely executive positions. Public policy and separation of powers were served by letting Congress put some limits on when a President could remove an officer of an independent regulatory agency, compared to cabinet officials or other people directly serving the President.


Weiner v. United States continued with this concept, holding that even without any statutory limit on his removal powers, the President could not arbitrarily remove executive officials who were in positions that by their very nature required independence. The Court took a functional approach in its reasoning: some positions needed to be independent from the President in order to properly regulate conduct, and therefore the President’s power to remove can be limited.


Although Congress can protect positions from the President’s removal in certain circumstances, Congress cannot create a position that has executive power yet cannot be removed at all by the President. In Bowsher v. Synar, the Court struck down the Gramm-Rudman-Hollings Deficit Reduction Act of 1985. The act allowed the comptroller general of the United States, the head of a congressional agency, to impose budget cuts. The Court held that this was unconstitutional because only the Executive branch was tasked with implementing the law, not Congress. By letting a congressional office implement budget cuts, Congress was effectively using executive power through an official who could not be fired or controlled by the President. The only way Congress could reserve the ability to remove an executive official is through the impeachment process.

 Morrison v. Olson (1988)Myers v. United States (1926)


Humphrey’s Executor v. United States (1935)


Wiener v. United States (1958)


Bowsher v. Synar(1986)

Clause 3: Recess Appointment

Text of Constitution:
The 'Travis Translation' of Constitution:
Clause 3: Recess Appointment Important Cases
The third clause in section two is the Recess Appointment Clause. While the Senate is in recess (not in session), the President may appoint senior federal officials to vacancies without the Senate’s approval. These appointments must be approved by the end of the next session, otherwise the position becomes vacant again.This clause was at issue in the recent decision National Labor Relations Board v. Noel Canning. President Obama determined that the Senate was in recess and made several appointments to the National Labor Relations Board. These appointments were challenged, and the Court ruled that the President had overstepped his power under this clause because the Senate was in fact still in session when the appointments were made. The Senate is the only body that may declare when it is officially in recess. National Labor Relations Board v. Noel Canning (2014)

Article 2, Section 3

Text of Article 2, Section 3:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The 'Travis Translation' of Article 2, Section 3:
The President will tell Congress how the country is doing in a “State of the Union” speech from time to time. The President will also give Congress ideas about how to get things done; and the President can meet with Congress anytime it is really important. If the Congress cannot agree on when Congress is finished working for the year, the President can dismiss them until a time the President thinks is fair. The President will welcome Ambassadors or government representatives from other countries; the President is in charge of making sure that the laws are carried out fairly; and the President empowers all the officers of the United States.

Faithful Execution of the Laws

Text of Constitution:
The 'Travis Translation' of Constitution:
Faithful Execution of the Laws Important Cases
Section 3 outlines the responsibilities of the President. Most of the portions of this section are straightforward and do not have significant Supreme Court precedents dealing with them. The President must provide a State of the Union address to discuss the condition of the country. It is the duty of the President to make recommendations to Congress, on behalf of the public, as to what laws should be passed. In the event of an emergency, the President can call Congress into session. The President also must receive and meet with foreign dignitaries and ambassadors. Additionally, the President may commission officers in the military and foreign services.


The main responsibility of the President is to faithfully execute the laws passed by Congress. This means that it is the Executive’s sole responsibility to enforce the law, and they must do so as exactly as Congress has detailed in law. In Clinton v. City of New York, the Court held that “line-item” vetoes were unconstitutional. These vetoes allowed the President to cancel certain portions of budget bills while allowing the remainder of the bill to pass. The Court ruled this was unconstitutional because it let the President change the law that Congress had already passed. This was viewed as an unconstitutional expansion of the power of the Executive, whose role was solely to carry out the laws rather than change them.


In Printz v. The United States, the Brady Handgun Prevent bill was struck down as unconstitutional because it forced state officials – local police officers – to enforce a federal regulatory scheme. The Court listed various reasons for striking down the bill, one of which was the role of the Executive as the only branch responsible for executing the law. Justice Scalia, writing for the majority, stated “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed.”


The President cannot alter how the law is to be implemented when specific instructions have been provided by Congress. This was affirmed recently in the 2014 decision Utility Air Regulatory Group v. E.P.A., where the Court held that the EPA had over-stepped its authority in changing certain limits in a statute to make the law more workable. Determining that the language in the law was clear, the Court held that the agency could not change the limits in the law. The Executive branch did not have the power to change the law once passed, even if it wasn’t working well in practice.

 Clinton v. City of New York (1998)


Printz v. US (1997)


Utility Regulatory Air Group v. Environmental Protection Agency

Article 2, Section 4

Text of Article 2, Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The 'Travis Translation' of Article 2, Section 4:
The President, the Vice President, and other officers of the United States, can be kicked out of office (impeached) if they are found guilty of double-crossing (betraying) the country, offering people money or getting money to do something dishonest, or other really big crimes.

Impeachment

Text of Constitution:
The 'Travis Translation' of Constitution:
Impeachment Important Cases
The final section of Article II covers impeachment – the removal of government officials up to and including the President. Impeachment is the ultimate check on presidential power, and is considered a move of last resort. The House of Representatives alone has the ability to vote to impeach, which if accomplished, results in a trial before the Senate. The Chief Justice presides as the judge. An official can only be impeached for treason, bribery, or other “high crimes and misdemeanors”. A conviction in the Senate requires 2/3 of the vote.


The Judicial branch is usually hesitant to involve itself in legal issues regarding the impeachment process due to the separation of powers. In Nixon v. United States, a district court judge was convicted of making false statements to a grand jury and was impeached. The Senate convened a committee to advise the full Senate on the matter, and the Senate followed the committee’s recommendation to remove the judge. The judge challenged this as unconstitutional, arguing that the full Senate had to sit and hear the evidence. The Court disagreed, dismissing the claim as a political question. The majority concluded that since impeachment is a political remedy, having the judiciary review the Senate’s decision and vote would endanger the separation of powers.

  Nixon v. United States

Article 3, Section 1

Text of Article 3, Section 1:
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
The 'Travis Translation' of Article 3, Section 1:
All the judicial power of the United States, including the courts of law and justice, will be headed by one Supreme Court. Congress can set up other courts as we need them. The Judges on the Supreme Court and the other courts under them can stay judges all their lives if they obey all the laws. The money Judges get paid for their service cannot be cut during their time as a Judge.
Article III of the Constitution is likely more fascinating for what it does not include than for what it does include. The section, for example, includes several of the preliminaries that simply need to be laid out to establish the judicial system. It sets up the U.S. Supreme Court, and allows for the creation of lower courts. It briefly describes the vague outline of what is required of a federal judge, as well as provides for judges’ salaries. However, somewhat uniquely, the true foundations of the federal court system and the power of the U.S. Supreme Court rest not with any text in the Constitution. Instead, the Court’s power is drawn from a peerlessly important case, Marbury v. Madison (1803). It is this case that established Judicial Review, the notion that the Court is the ultimate authority on the interpretation of the Constitution and that the Court decides the outcome of a conflict between the Constitution and legislation. This cornerstone of the American judicial system has been at the heart of countless decisions ever since. Finally, by way of general introduction, it is also worth noting here the role that constitutional interpretation has played in the history of the Court and in the modern controversies surrounding the Court’s authority. Today, Justices and their supporters tend to be placed into two camps: Originalists, sometimes known as Strict Constructionists and Non-Originalists, sometimes known as Activists. While the lines between these two camps are often more illusory than not, the disagreement centers on the degree to which it is appropriate for the Court to read into the text of the Constitution. Originalists argue that broadly interpreting the Constitution and its scope risks exacerbating what is called the “counter-majoritarian problem.” Meaning, the more power the Court has to find conflict between the ever-expanding Constitution and enactments of the Legislative and Executive branches, the more the will of majorities, as represented by elected officials, will be frustrated by unelected judges. But Non-Originalists argue that the Constitution, by its very nature, requires interpretation. Some provisions are words are essentially meaningless without doing something more than giving the Constitution as strict and literal of an interpretation as is possible. Moreover, the role of the judicial system is often specifically to protect minorities from what can become tyrannical majorities. Whole most Justices approach the role of the Court with some mix of the two, most notably, the battle cry of the Non-Originalists has been a line from the case of McCulloch v. Maryland (1819). There, Chief Justice Marshall was emphatic: “we must never forget, that it is a constitution we are expounding.”

Judicial Review

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
Judicial Review, a power exercised by the judicial branch, and the Supreme Court in particular, is ubiquitous in the colloquial understanding of the job of the Court. People associate the Supreme Court with its ability to declare a law made by the states or by Congress unconstitutional. It can therefore be surprising to learn that this power cannot be found in any textual provision of the Constitution.In fact, this power is inferred from two disparate provisions, Article III, where the Court is given the power to decide cases “arising under this Constitution, and from Article IV, which states that the Constitution is the “supreme law of the land.” The Constitution is supreme; it trumps legislation, so to speak. The Court decides cases regarding the Constitution. Therefore, the Court decides if and when a piece of legislation is constitutional.This idea may appear almost obvious from the above-mentioned provisions. However, it took a Supreme Court case, Marbury v. Madison (1803), to cement its place as a foundational element of the U.S. judicial system.There were, however, stirrings of this power before Marbury. In Hylton v. United States (1796), the Court examined the constitutionality of a Congressional act relating to taxes. As it happened, the Court decided that the act was, in fact, constitutional. So it did not have to exercise the extreme measure of declaring the tax unconstitutional. However, this set the state for Marbury, where such a measure was taken. Hylton v. United States (1796)
Marbury v. Madison Important Cases
Marbury v. Madison is notable not just for its lasting impact on the Court’s jurisprudence and the notion of separation of powers. It is also notable for the story and intrigue behind the case itself.In the election of 1800, or the Revolution of 1800, as it has come to be known, Thomas Jefferson defeated incumbent John Adams to become the third President of the United States. However, there was a “lame-duck” period of time after the election and before President Adams was to step down. During this period, President Adams used the power of his office to appoint dozens of judges to vacant seats (many of which, incidentally, President Adams had helped create through the signing of a new law adding more lower federal courts). The process by which judges were appointed was such that the President would appoint them, the Senate would approve them, and the names would then have to be delivered to the Secretary of State.In the short period of time between the election and the beginning of the new presidency, however, there simply was not enough time for this process to be completed for all the judges. While they were appointed and approved, then-Secretary of State John Marshall (who was also, somewhat unbelievably, Chief Justice of the Supreme Court) just could not complete his part in time.President Jefferson took over the office, and with him came a new Secretary of State, James Madison (who, aside from eventually becoming the fourth President, helped to author much of the U.S. Constitution). Secretary of State Madison (and a brief predecessor working as acting-Secretary), then, refused to continue the appointment process for Adams’ appointees, under orders from President Jefferson.One of those appointees, William Marbury, petitioned the Supreme Court for what is called a “writ of mandamus,” basically a court proceeding used to decide such an issue. Marbury claimed that Jefferson and Madison had no such right not to deliver the remaining appointments.Chief Justice Marshall, then, found himself to be at the center of a delicate political issue. He was, after all, the former Secretary of State under President Adams. If he so emphatically sided with Marbury, he could be accused of being bias or partial, or possibly even corrupt. But if he sided with Madison, he could be seen as turning his back on the political ideologies that he had long aligned himself with.Chief Justice Marshall, however, had a way out, one that was unique – and one that did more than simply sidestep the issue at hand.


First, the Court found that, indeed, Marbury did have a legal right to the post he was appointed to by President Adams. However, and this was a monumental qualification, the United States Supreme Court did not have the power to compel the appointment through this writ of mandamus. As it happened, the power of the Court to issue writs of mandamus was not included in the Constitution. It was instead part of a law, the Judiciary Act of 1789. This statute gave original jurisdiction to the Court to issue such writs. Original jurisdiction means that a person can appeal directly to a court, without having to first go through another process. This is in contrast with appellate jurisdiction, in which a court can only rule on some matter after another court has ruled on the issue and the party has appealed to the higher court to reconsider the ruling.


Per Article III, Section 2, the Court only has original jurisdiction,”[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” For every other case, the Court only has appellate jurisdiction. A party must first work its way through the lower courts before the Supreme Court can rule on the case. As far as the Constitution was concerned, Marbury may have very well had a right to his post, but the Court could not make any decisions on the matter in the process by which Marbury had gone about the case.


In other words, the Congressional statute, the Judiciary Act of 1789, and a provision in the Constitution, Article III, Section 2, were in direct conflict. Chief Justice Marshall applied the notion of Judicial Review to render the Judiciary Act unconstitutional. According to the Chief Justice, the Supremacy Clause lifted up the Constitution above any legislation, and Article III granted the Court the power to decide a conflict between the Constitution and legislation, and interpret the Constitution accordingly.


William Marbury never did get his post. But Marbury v. Madison lives on.

 Marbury v. Madison (1803)

Dred Scott v. Sandford (1857)
Judicial Review and the States Important Cases
While Marbury cemented the Court’s authority to exercise Judicial Review over federal legislation (though that authority would not again be exercised until Dred Scott v. Sandford (1857)), it took a few more more years for the Court to assert its power over state statutes and courts as well.In Fletcher v. Peck (1810), the Court invalidated the Georgia legislature’s voiding of certain previously made contracts. The Court held this to be a violation of the Contract Clause in Article I, Section 10.In Martin v. Hunter’s Lessee (1816), the Court both invalidated a Virginia law and overruled the Virginia Supreme Court’s opinion on the issue. Virginia had passed a law permitting the confiscation of land belonging to British loyalists (during the Revolutionary War). This law was challenged in an earlier case in the U.S. Supreme Court, and the Court held that the law was unconstitutional. The Virginia Supreme Court, however, charged with implementing that decision, refused to comply, holding the U.S. Supreme Court to have no power over state court actions. The case then returned to the U.S. Supreme Court which insisted on, and fomented, its supremacy over state legislative and judicial action. Fletcher v. Peck (1810)

Martin v. Hunter’s Lessee (1816)

Impeachment of Federal Judges

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
In the United States, the word “impeachment” is merely the term for the proceeding that begins the process of removing an official from the government. Thus, while this particular section of the Constitution sets the broad outline for what is expected of a federal judge (that he or she sit in “good Behavior”), other officials can be impeached as well, including the President of the United States himself (see Article II, Section 4).


The process of what is colloquially known as impeachment contains two steps. The first step, the one that is technically the impeachment, is taken by the House of Representatives. By a simple majority, the House can vote to impeach a federal official. This process is akin to an indictment in an ordinary criminal proceeding. Then, once the official is impeached, the Senate holds a trial to determine if the official should be convicted, in which case the official is removed from office. The Senate, however, needs a two-thirds majority to convict.


Very few federal officials have ever been impeached, and even fewer have been convicted and removed from office. By way of example, President Bill Clinton was impeached by the House of Representatives, but he was not convicted by the Senate.


The impeachment of federal judges, in fact, is often an even more murky process than the impeachment of other officials. While Article II, Section 4 contains some vague guidelines for what warrants impeachment proceedings – and this section relates to federal officials in general – Article Three only explains that judges are supposed to remain in office only while in “good Behavior.” This is an incredibly open-ended standard.


Only 15 federal judges have ever been impeached and only eight have ever been convicted and removed (most recently, Judge Thomas Porteous of Louisiana in 2010). But even then, the “articles of impeachment,” the list of misconduct the accused is on trial for, have described quite a wide range of inappropriate behavior.

 
Examples of Impeached Federal Judges Important Cases
By way of example, the only Supreme Court Justice to ever have been impeached (though not convicted) was Samuel Chase, in 1805. Chase had criticized a decision made by President Jefferson (the repeal of the Judiciary Act of 1801, effectively eliminating many newly created federal judgeships held by Federalists, a political party opposed by Jefferson). Jefferson led the charge to have Chase impeached. Officially, the articles of impeachment also included several other actions taken by Chase as a lower court judge, accusing him of mishandling his job. However, though the House voted to impeach, the Senate acquitted.
More recent examples provide better illustrations of how impeachment is used in the modern era. For example, Walter Nixon (no relation to the former U.S. President), a federal judge in Mississippi, was impeached and convicted in 1989. Nixon had committed perjury by lying under oath to investigators, falsely denying his involvement in helping the son of a business partner get out of being prosecuted for a drug-related charge.
 Nixon v. United States (1993)

Article 3, Section 2

Text of Article 3, Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The 'Travis Translation' of Article 3, Section 2:
The judges of the courts have the power to decide any case that involves or questions: the Constitution, laws of the United States, or a treaty signed by the United States. Courts will also decide any case that involves Ambassadors or foreign ministers from other countries. They have the final say on cases that happen on the oceans. They decide: arguments when the United States is involved, cases between two or more states, cases between a state and somebody from another country, cases between citizens of different states, cases between citizens of the same state when different states give them the same land, and to all cases between a state, the citizens in that state, and other countries and their citizens. [This was changed by the 11th Amendment.]

If an Ambassador or Minister from another country, or if a state is involved, the Supreme Court can hear the case first. In all the other cases, the smaller courts will hear the cases first, and the loser can appeal their case. The Supreme Court is the final authority. The Supreme Court can look at both the law and the facts of each case, with the rules Congress has passed.

Trial for all federal crimes, except kicking people out of government (impeaching them), will be in front of a jury. The trial will be held in the same state where the crime was committed. If the crime was not committed in a State, Congress can decide by law where to hold the trial.

This section of the Constitution contains, essentially, the job description of the judicial branch (see also Judicial Review), what it can rule on and what it can’t rule on. It describes the extent of the power, or jurisdiction, of both the Supreme Court and any other federal courts beneath the Supreme Court. It is also used to delineate the limits of that power, including Congress’ ability to limit certain judicial power by legislation (also known as the Exceptions Clause) and other limits implied by the text of the Constitution. There have also been further limits placed on the power of the federal courts by the 11th Amendment.

The section also includes a short provision guaranteeing jury trials in criminal proceedings, a right which was also supplemented by the 6th Amendment.

Justiciability

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
Much of the time, a court case comes to an end because one side or the other wins through the persuasiveness of the arguments made. This result is often referred to as winning “on the merits.” When a court rules “on the merits,” a party prevails over another and substantive law may be made regarding a certain topic.


However, sometimes, a court ends a case – not on the merits – but because the court simply does not have the ability to make a decision in this instance (though this does not mean that one party did not want the practical result of the end of the case). Often, this has to do with jurisdiction, or the power of a particular court in a particular place to hear this type of case at all. But other times, this has to do with what is known as justiciability. Justiciability, broadly, relates to the case itself and whether it is appropriate for it to be brought to court at the stage that it is at. But that description, really, is an oversimplification. In actuality, justiciability is better conceptualized as a bundle of various doctrines that all serve to limit when a case is and should be brought to court.
 
Constitutional Standing Important Cases
The first, and perhaps broadest, topic under the umbrella of justiciability is the issue of standing. Within the topic of standing, there are two general categories: Constitutional Standing and Prudential Standing.


Constitutional Standing, as may be clear from the name, is a requirement of the Constitution. Congress cannot override its limits and could not pass a law allowing federal courts to hear cases that the restrictions of Constitutional Standing prevent them from hearing.


Specifically, this type of standing emanates from the wording in Article III, Section 2 which extends federal judicial power over “cases” and “controversies.” Often, in fact, this part of the Constitution is called the “Case or Controversy Clause.”


This has been understood to prohibit federal courts from issuing what are known as “advisory opinions.” In other words, unless there is some case to rule on, a court could not make an official statement on a theoretical outcome before any case actually came into being. More particularly, this requirement is composed of three distinct elements. For a court ruling, if issued, to not be an advisory opinion, it must adhere to all three.


First, there must be so-called “injury in fact.” This means that the party bringing the action must be suffering some concrete harm. This injury must be actual, not theoretical. Or, at least, it must be imminent. For example, in Lujan v. Defenders of Wildlife (1992), a case was brought by a group of (former) birdwatchers, alleging that a new policy was endangering birds in certain African countries. However, even though the birds themselves may be in danger, the plaintiffs had no standing to bring the suit. Not only were they personally not suffering, but they could not even show how further endangering the birds would be an imminent danger to them, as they had no immediate plans to return to these locations and engage in further birdwatching. Some of the Justices wrote an opinion concurring in the judgment that suggested that the result of the Court would have been different had the birdwatchers only bought a plane ticket to these locations before bringing the lawsuit.


The second element is causation. There must be a causal connection between the alleged injury suffered and the conduct complained of. For example, in Allen v. Wright (1984), a case was brought by parents of African American students in several states. They alleged that Internal Revenue Service (IRS) policies that were supposed to identify discriminating private schools – to prevent them from being able to receive tax deductible donations – were inadequate. These parents asserted that the IRS allowing certain schools to possibly discriminate and receive tax benefits made it easier for segregated schools to still exist, thereby making it more difficult for African American children to attend desegregated schools. However, the Court found this connection to be too attenuated. There was an insufficient causal connection between the alleged injury (the lesser availability of desegregated schools) and the conduct complained of (the IRS policies in question).


Finally, there must also be what is known as redressibility. This means that it must be likely that the alleged injury will be redressed, or remedied, by a favorable court decision. In other words, if the court agrees with the plaintiff’s argument, will that decision actually help him or her? For example, in Massachusetts v. EPA (2007), the Court analyzed standing issues in a case where Massachusetts and several other states sued the Environmental Protection Agency over EPA policies that refused to regulate carbon emissions. The Court found there to be redressibility, and standing in general, here because rising sea levels resulting from increased greenhouse gases (a contention that the EPA did not dispute in their argument) could directly impact coastal Massachusetts. As such, a court ruling could redress Massachusetts’ potential injury.

 Allen v. Wright (1984)

Lujan v. Defenders of Wildlife (1992)

Massachusetts v. EPA (2007)
Prudential Standing Important Cases
Even if there are no impediments in the case of a case from the standpoint of constitutional standing, there are other, judicially created, doctrines that may prevent a case from going forward. Collectively, these doctrines are known as prudential standing. It is worth noting, though, that because these are judicially created doctrines, they are traditionally more flexible and discretionary – as well as are able to be overrode by Congress.


First, one may not assert the legal rights of another. There is no “third party standing,” as it is called. For example, in Elk Grove Unified School District v. Newdow (2004), a father brought a lawsuit on behalf of his daughter who attended a public school where the pledge of allegiance was recited daily. This amounted to an establishment of religion, asserted the father, and was unconstitutional. However, the majority in Newdow did not rule on this issue. Instead, they held that the father did not have standing to bring this lawsuit on behalf of his daughter. There is a doctrine, known as the “next friend” doctrine, which allows certain people (parents or guardians, for example) to bring lawsuits on behalf of other less-able litigants (children or the mentally handicapped, for example). However, in this particular case, the father did not actually have custody of his daughter; and the Court held that this prevented the next friend doctrine from being applicable. Therefore, the father did not have prudential standing to bring the lawsuit.


The second prudential standing rule says that generalized grievances are best left to the representative branches of government. For example, in United States v. Richardson (1974), the Court rejected a lawsuit challenging certain CIA policies because those bringing the lawsuits attempted to do so simply because they were taxpayers, and asserted that this gave them a right to challenge the government in this fashion. However, the Court rejected this “taxpayer standing,” holding it to be too generalized of a grievance.


Finally, a plaintiff’s complaint should fall within the so-called “zone of interests” protected by whichever law is being invoked; if it does not do so, it lacks prudential standing. For example, in Association of Data Processing Service Organizations, Inc. v. Camp (1970), data processors challenged the government on a new rule concerning banks. There had been a law in place that stated that banks could not engage in activities that were not bank-related. But this new rule, by the Office of the Comptroller of the Currency, allowed banks to engage in data processing. Thus, the association sued – but the lower courts rejected the suit on the grounds that the initial statute in place was not meant to apply to data processing. In other words, a lawsuit by data processors under this bank statute was beyond the zone of interests the statute was designed to protect. However, the Supreme Court reversed, holding that, indeed, the association had standing because the statute could conceptually include any other industry that a bank was encroaching upon.

 Association of Data Processing Service Organizations, Inc. v. Camp (1970)

United States v. Richardson (1974)

Elk Grove Unified School District v. Newdow (2004)
Ripeness Important Cases
Another important justiciability issue is the doctrine of ripeness. Essentially, this is a matter of timing. When it is too early to bring a case – when a judicial challenge is not yet appropriate or when necessary events must still follow – that case is said to be unripe. For example, in Goldwater v. Carter (1979), Senator Goldwater and other legislators unhappy with President Carter’s recognition of the People’s Republic of China was held to not be ready for a judicial challenge. At the stage in which the suit was brought, there was no constitutional impasse. It was not that Congress had voted on the issue and then the President defied the law, some of these legislators were just displeased. This meant that, unless there was some more concrete issue to be resolved, the Court could not opine on the issue one was or the other (see also below, Political Question Doctrine). Roe v. Wade (1973)

DeFunis v. Odengaard (1974)
Mootness Important Cases
Another important justiciability issue is the doctrine of mootness. Essentially, like ripeness, this is also a matter of timing. When the case or controversy underlying the court action is over – and time spent on issuing a court decision would be wasteful – the case is said to be moot. For example, in DeFunis v. Odengaard (1974), a student sued the University of Washington after it denied him admission to the law school. He alleged that the school’s affirmative action policies discriminated against those groups that did not benefit from their race or ethnicity. However, while the case was pending, and before it rose up to the Supreme Court, the student was admitted to the school (and unlike other Equal Protection school-related cases, the student brought the lawsuit alone, and not on behalf of others or applicants in general). By the time the Court was set to rule on the issue, he was months away from graduating. The case, therefore, was moot. It was no longer necessary. Whether or not the Court had ruled in the students favor ‘on the merits,’ he would have graduated from law school.


There is, however, an exception to this rule, known as “capable of repetition, yet evading review.” This means that though a particular case may be moot by the time it reaches a court, if it is representative of other similar cases which would also ‘evade review’ by becoming moot before they can be ruled on, the court should decide the issue on the merits anyway. For example, in Roe v. Wade (1973) (see Abortion), the opponents argued that the Supreme Court should not issue a ruling on the abortion issue. “Roe” had given birth by the time the case rose up to the Court, and conceptually, her individual case was moot. However, the Court understood that abortion cases would, in general, be capable of repetition, yet evading review. Therefore, the Court rejected this argument and decided the case on the merits.

 Roe v. Wade (1973)

DeFunis v. Odengaard (1974)
Political Question Doctrine Important Cases
This last justiciability issue stands for the proposition that the courts are not the proper place to decide political issues. This ‘political question doctrine’ is sometimes exercised in the following situations: (1) the issue is textually given to some other branch of government to resolve; (2) there is a lack of a judicially manageable standard with which to implement a ruling; (3) it is impossible for the Court to decide the issue without an initial policy determination from another source; (4) the Court cannot decide this issue without disrespecting another branch; (5) there is some unusual need for the Court to accept the decision of another branch; or (5) a Court ruling would embarrassingly conflict with another branch of the government. Though this is the list (taken from Baker v. Carr (1962)) usually given for applications of this doctrine, the Court is not limited to these situations. Nor does the Court always adhere to this doctrine: scholars and litigants often accuse the Court of using this doctrine out of convenience to rule on a case it wants to rule on and pass the buck, so to speak, when it feels that a ruling is imprudent.


The most noted case on this doctrine is Baker v. Carr (1962). There, the Court was asked to rule on an issue of redistricting and the defendants in that case argued that drawing the lines of voting districts is a political question, not to be decided by the Courts. The majority, however, disagreed and held that the issue was justiciable. However, Justice Frankfurter and Justice Harlan, in their dissent, felt that the Court had misapplied the doctrine: “The Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”

 Baker v. Carr (1962)

Nixon v. United States (1993)

Vieth v. Jubelirer (1962)

Exceptions Clause

Text of Constitution:
The 'Travis Translation' of Constitution:
Introduction Important Cases
Article II, Section 2, Clause 1 reads as follows: “The Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. The Court has appellate jurisdiction in all other cases, except as Congress makes by regulation.“This last sentence, known as the Exceptions Clause, is a very specific, but important, limit on the power of the Supreme Court. Appellate jurisdiction means that the Court is able to hear all types of cases, but only if they are first heard by some lower court. It is only those topics in the first sentence, where the Constitution refers to “original jurisdiction,” where a case can be brought straight to the Supreme Court (see Marbury v. Madison (1803) and Judicial Review). However, according to the Exceptions Clause, Congress could actually take away the appellate jurisdiction of the Supreme Court if it so chose.For example, in Ex parte McCardle (1869), a man was arrested for writing articles critical of Reconstruction (the term for the government actions taken in the wake of the Civil War). After a trial, while his appeal was pending to the Supreme Court, Congress amended the statute involved in the case, stripping away the Supreme Court’s appellate jurisdiction over the issue. The Court held that it could not rule on Mr. McCardle’s case.In recent decades, a modern scholarly interpretation of the clause has been put forward, known as the “Essential Function Test.” This approach suggests that though the text of the Constitution appears to grant this power to Congress without reservation – meaning Congress could remove all Ex parte McCardle (1869)

Article 3, Section 3

Text of Article 3, Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The 'Travis Translation' of Article 3, Section 3:
Treason, or betraying the United States, is making war against the United States, or being loyal to an enemy of the United States, or giving that enemy help or comfort. Nobody can be found guilty of treason unless two people describe the same obvious act of treason in open court, or unless the accused person says in open court that she/he did it.

Congress decides how to punish treason. If someone is guilty of treason, their family cannot be punished. The disgrace of the traitor, and any fines they owe, will go with them to their death, but not past that.

This clause is unique in that, unlike many of the other general constitutional provisions relating to criminal law, this clause is quite specific. It defines the crime of treason, and enshrines it in the Constitution. This both serves to impress the gravity of the offense, as well as ensure that its parameters are anything but unclear.

The definition here works to set the American definition of treason apart from the earlier British version. According to British law, there were several different actions that could be defined as treason, many relating to Kings and Queens. Here, the Constitution narrowed the scope of treason to two offenses: waging war against the United States, or helping an enemy of the United States. Additionally, under British law, treason was such a terrible crime, that the convicted traitor’s property could not even pass to his or her heirs upon death (and any money owed by the traitor would remain the obligation of heirs). The United States Constitution undid this as well. The punishment of the traitor ends at death, and goes no further.

Finally, the clause describes some of the parameters surrounding a conviction of treason, including the requirement that two individuals bear witness to the crime.

Article 4, Section 1

Text of Article 4, Section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The 'Travis Translation' of Article 4, Section 1:
Each State will honor every other States’ public acts, their records, and their legal reports. The Congress will make laws to decide how to check on such acts, records, and reports. Congress will decide how to test these records and how effective they are.

This clause is essential to the federal system set up by the Constitution. The national government makes laws that affect the country as a whole. But the ratification of the Constitution did not undue the laws of the various states. In many respects, the states retained their sovereignty. But, unlike federal law, which is uniform throughout the country, laws on a particular issue in one state may not be the same as laws on that issue in another. In fact, one state’s laws may be diametrically opposed to the laws of a neighboring state.

Full Faith and Credit Clause

Text of Constitution:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The 'Travis Translation' of Constitution:
Each State will honor every other States’ public acts, their records, and their legal reports. The Congress will make laws to decide how to check on such acts, records, and reports. Congress will decide how to test these records and how effective they are.
This clause is essential to the federal system set up by the Constitution. The national government makes laws that affect the country as a whole. But the ratification of the Constitution did not undue the laws of the various states. In many respects, the states retained their sovereignty. But, unlike federal law, which is uniform throughout the country, laws on a particular issue in one state may not be the same as laws on that issue in another. In fact, one state’s laws may be diametrically opposed to the laws of a neighboring state. The Full Faith and Credit Clause ensures that, no matter the differences among state laws, those laws are still respected in other states. For example, if a man in New Jersey is ordered by a New Jersey court to pay a certain amount of money – but he flees to New York before he pays – a court in New York would be bound to enforce the New Jersey judgement. This is so even if New York law does not recognize whatever proceeding took place in New Jersey. One state’s judgments are given ‘full faith and credit’ in another. Moreover, the second provision of the clause goes one step further. It authorizes Congress to pass laws to help states access and recognize other states’ judgments and records.

Privileges and Immunities Clause

Text of Constitution:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
The 'Travis Translation' of Constitution:
Citizens of each State will have all the advantages and protection of citizens in the other states.
Following thematically from the Full Faith and Credit Clause, the Privileges and Immunities also guides interactions among the states. Though the text of the clause may appear ambiguous – and has been the source of some confusion in cases throughout the centuries – the Privileges and Immunities Clause (not to be confused with the Privileges or Immunities Clause of the 14th Amendment) prohibits states from treating residents from other states differently than residents of that state. This clause is similar in some respects to the Dormant Commerce Clause, which prohibits states from making protectionist laws against other states as entities. Here, the Constitution forbids states from treating other states’ citizens differently. For example, in Toomer v. Witsell (1948), South Carolina was charging a $2,500 fee for out-of-state shrimp boaters to do business in the state, while it only charged South Carolina residents a fee of $25. The Supreme Court then held that this action violated the Privileges and Immunities Clause. The state could not discriminate against out-of-staters merely for being from out of state.

Extradition Clause

Text of Constitution:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
The 'Travis Translation' of Constitution:
If somebody is charged with a crime in one state, then runs from the police to another state, the Governor of the state in which the crime was committed can demand the return of that person, and the other state must obey.
The Extradition Clause is yet another provision which normalizes legal processes among the states. In this clause, the Constitution requires that if a person is charged with a crime in one state and flees to another, the harboring state must return the individual to the charging state. There are two Supreme Court cases which are central to the history of the Extradition Clause. First, in Kentucky v. Dennison (1860), a man committed a crime in Kentucky by helping a slave escape. He then fled to Ohio. The Court did hold that, under the Extradition Clause, the governor of Ohio had the constitutional responsibility to return the man to Kentucky. However, practically, the Court refused to enforce the clause. Instead, it held that federal courts could not issue so-called “writs of mandamus” – essentially court orders – to force the governor to comply with the clause. Essentially, this greatly mitigated the power of the clause. However, in Puerto Rico v. Branstad (1987), the Court reversed its position. There, an Iowa man had struck pedestrians in Puerto Rico. The man then fled back to his home state; and the governor of Puerto Rico requested that Iowa return the fugitive, asking an Iowa federal court to enforce the Extradition Clause. The governor refused, and his decision was backed by the district court in Iowa, as well as the Circuit Court of Appeals. They cited the precedent set in Kentucky. The Supreme Court reversed, however, holding the decision in Kentucky to be outdated and no longer applicable. Iowa had to return the man to Puerto Rico. In the wake of Branstad, courts now do have the power to enforce the Extradition Clause.

Fugitive Slave Clause

Text of Constitution:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The 'Travis Translation' of Constitution:
A slave in one state who escapes to a state where slavery is outlawed, will be returned to the slave owner upon their request. [The 13th Amendment outlawed slavery, making this part of the Constitution outdated.]
Thankfully, this clause has been rendered null and void. In the original Constitution, it required that any escaped slave – no matter that he or she may have escaped to a state that outlaws slavery – would be returned to the owner. In the aftermath of the Civil War, the nation ratified the 13th Amendment, which rendered slavery unconstitutional and illegal across the country.

New States and Other Property

Text of Constitution:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The 'Travis Translation' of Constitution:
Congress can let new states into the Union, but no states can be formed inside another State. States cannot be made of two or more States, or parts of States, unless both the State legislatures of those States and Congress agree to it. Congress has the power to make rules and laws for lands and other property of the United States. Nothing in the Constitution can be used to influence any claims of the United States or any State.
According to these next provisions, the Constitution permits the crea tion of new states, provided the land for these new states is generally taken from areas not already states. This has not been an issue of much contention in American history. But when Virginia seceded from the Union before the Civil War, the counties in the area now known as West Virginia voted against secession. They declared themselves a new state. Though that declaration may have raised some constitutional questions, the Supreme Court in Virginia v. West Virginia (1871) settled the issue by interpreting Virginia’s actions during this period as giving consent to the separation, as well as acknowledging Congress’ approval of the new state. The second provision of this clause gives Congress the authority to directly administer land held by the United States that isn’t part of any state. Today, these lands include Puerto Rico, American Samoa, and the U.S. Virgin Islands, among others. Depending on how Congress acts, these areas are subject to different degrees of self-rule. Puerto Rico is a Commonwealth of the United States, and though citizens in Puerto Rico do not vote in federal elections or pay federal income taxes, the territory is treated like part of the United States in many other respects. According to the Constitution, it is up to Congress to decide the laws and workings of these areas.

Guarantee Clause

Text of Constitution:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
The 'Travis Translation' of Constitution:
The United States will guarantee every state a government elected by the citizens of that state, and it will protect the States from attack. The United States will also protect the states from local fighting, or riots, if the State legislatures ask for it. The Governor can ask for this protection if the legislature of that state is not meeting.
This clause guarantees that states be governed in a “Republican” fashion. Obviously, this means that it is unconstitutional for a state to be governed by a monarch or a dictator. But beyond such extreme scenarios, it is not entirely clear what is minimally required for a government to be considered Republican. What is clear, however, is that the question is not one for the courts. The legal challenges brought against states under this clause generally result in the Supreme Court abdicating on the issue, declaring it a “political question,” and one for Congress and the Executive branch to decide. For example, in Luther v. Bordon (1849), the Court addressed the so-called “Dorr’s Rebellion.” Since its founding, Rhode Island had been governed by a charter that only permitted landholding men to vote. The disenfranchised men (women’s suffrage would be saved for a later date) held their own state constitutional convention and elected a man named Thomas Dorr to be the new governor of the state. Though two governments existed for a time, the leaders of this group were eventually arrested and the case made its way to the U.S. Supreme Court. The Court, however, declined to decide the question of whether a state restricting its voter population to landowners was sufficiently Republican under the Guarantee Clause. Instead, it held that it was an issue for the other branches of government to decide. Though Rhode Island did eventually expand the right to vote, the notion of this question being political, and not judicial, in nature, has lasted.

Article 4, Section 2

Text of Article 4, Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The 'Travis Translation' of Article 4, Section 2:
Citizens of each State will have all the advantages and protection of citizens in the other states. If somebody is charged with a crime in one state, then runs from the police to another state, the Governor of the state in which the crime was committed can demand the return of that person, and the other state must obey. A slave in one state who escapes to a state where slavery is outlawed, will be returned to the slave owner upon their request. [The 13th Amendment outlawed slavery, making this part of the Constitution outdated.]

Article 4, Section 3

Text of Article 4, Section 3:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The 'Travis Translation' of Article 4, Section 3:
Congress can let new states into the Union, but no states can be formed inside another State. States can¬not be made of two or more States, or parts of States, unless both the State legislatures of those States and Congress agree to it. Congress has the power to make rules and laws for lands and other property of the United States. Nothing in the Constitution can be used to influence any claims of the United States or any State.

Article 4, Section 4

Text of Article 4, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
The 'Travis Translation' of Article 4, Section 4:
The United States will guarantee every state a government elected by the citizens of that state, and it will protect the States from attack. The United States will also protect the states from local fighting, or riots, if the State legislatures ask for it. The Governor can ask for this protection if the legislature of that state is not meeting.

Article 5, Section 1

Text of Article 5, Section 1:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The 'Travis Translation' of Article 5, Section 1:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The fifth article of the Constitution concerns the process by which additions or changes can be made. The process, though difficult, is fairly simple. First, two-thirds of each house of Congress (the Senate and House of Representatives) must propose the amendment. Two-thirds of the state legislatures can also call for an amendment, in which case Congress must call a convention to prose it. After the amendment is proposed, three-fourths of the states must approve of it (today, this is 38 states), either by vote in the legislature or by state convention. Finally, as something of an aside, the article adds that even if these requirements are met, in no way can a state lose its two Senators without the state’s express permission.

All told, there have been 27 amendments to the U.S. Constitution. However, there have been 33 total proposals for amendments passed by two-thirds of the Congress and sent to the states. Of these, four are still pending. Meaning, the proposed amendments did not come with deadlines for ratification. So any state which has yet to ratify the amendment may still do so. These amendments include:

(1) The Congressional Apportionment Amendment (proposed in 1789, ratified by 11 states): Would reapportion the House of Representatives according to a difference scheme. Its calculations are considered unmanageable by today’s standards. It would have set the membership of today’s House in the thousands.

(2) The Titles of Nobility Amendment (proposed in 1810, ratified by 12 states): Would automatically revoke the citizenship of anyone who accepted a title of nobility by a foreign country or, without Congress’ permission, accept essentially any foreign honor whatsoever.

(3) The Corwin Amendment (proposed in 1861, ratified by 2-3 states): Would prohibit any further amendments to the Constitution limiting or prohibiting slavery. Obviously, with the Civil War and the related amendments (13th, 14th, and 15th), this amendment is moot, even though it is still technically pending before the states.

(4) The Child Labor Amendment (proposed in 1924, ratified by 28 states): Would explicitly permit Congress to legislate against child labor.

Beyond these four pending amendments, two others were proposed. But these including time limits in their text. Meaning, because the requisite number of states did not ratify these amendments within the expressly required time, they were revoked and are no longer pending. If movements ever arose for these amendments to be ratified, they would have to be passed in Congress anew. They are:

(1) The Equal Rights Amendment (proposed in 1972): Would have made discrimination on the basis of sex unconstitutional.

(2) The District of Columbia Voting Rights Amendment (proposed in 1978): Would have repealed the 23rd Amendment and given the residents of Washington, D.C. full representation in Congress and the Electoral College as if the district were a state.

Article 6, Section 1

Text of Article 6, Section 1:
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The 'Travis Translation' of Article 6, Section 1:
All debts and promises made by the United States before the approval of this Constitution will still be enforced under this Constitution.

This Constitution, the laws of the United States, and the treaties of the United States are the absolute law of the land — and all judges must honor them, despite anything different in State Constitutions or State laws.

All Senators, Representatives, Members of State Legislatures, executive and judicial officers, both of the United States and in the states them¬selves, are bound by their word to sup¬port this Constitution. No religious test can ever be used in order to serve in public office.

With Article VII being nothing but the requirement that nine states ratify the Constitution before it could go into affect, it is Article VI that contains the last of the substantive provisions of the Constitution.

The first clause simply states that any debts that the country may have accrued before the ratification of the Constitution are still valid. Thus, if the country borrowed money during the Revolutionary War, for example, even though the structure of the government was undergoing enormous change with the Constitution, those debts would be unchanged.

The second clause, the so-called “Supremacy Clause,” is perhaps the most significant of this article. It’s meaning is simple: where the Constitution or valid federal laws conflict with state constitutions or state laws, the Constitution and the federal laws win. They preempt. They are ‘supreme.’ From early on, this clause has been used to supersede state laws. For example, in Ware v. Hylton (1796), the Court examined a conflict between the Treaty of Paris, made by the federal government, and a Virginia law. The Court held that Virginia could not nullify debts that the Treaty of Paris guaranteed. The Supremacy Clause meant that the federal enactment overrode the Virginia law to the contrary. Famously, in McCulloch v. Maryland (1819), the Court held that the Supremacy Clause meant that it was unconstitutional for the state of Maryland to tax a federally created bank. The bank was within the power of the federal government to create. A state could not exercise authority over the bank. That would thwart the meaning and intention of the Supremacy Clause. Though the Court has further defined the clause and when a federal law preempts a state law, the central holding of Ware and McCulloch remains in effect. Indeed, in the recent case of American Insurance Association v. Garamendi (2003), the Court held that a California law was unconstitutional under the Supremacy Clause. California had passed a law in efforts to help Holocaust survivors collect reparations payments from German companies. The law required any insurance company in business during and before World War II to make much of its client information public. The Court, however, held that federal laws governing reparations, and the United States’ relationship to modern Germany in general, preempted the state law. When the federal government legislates in one area, and a state government does the same, the Supremacy Clause works to make the federal law preempt the state law.

The third clause requires that members of the federal government, in any branch, take an oath of office to uphold the Constitution. But that oath – or any requirement to be a member of the government – cannot be contingent on some religious test, oath or otherwise.

Ware v. Hylton (1796)
McCulloch v. Maryland (1819)
American Insurance Association v. Garamendi (2003)

Article 7, Section 1

Text of Article 7, Section 1:
This seventh article is merely a post-script to the rest of the Constitution, and has no bearing on the law or the government today. It required nine states to ratify the Constitution before it could take affect on the country as a whole. The text of the article is as follows:

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Of the original thirteen states, these were the first nine to ratify the Constitution: Delaware (hence its nickname “The First State”), Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire. The Constitution then technically took effect, though the remaining states of Virginia, New York, North Carolina, and Rhode Island would also ratify the Constitution within a year.

The 'Travis Translation' of Article 7, Section 1:

Religion

The First Amendment protects the right to express and hold religious beliefs. It does this through two clauses – the Establishment Clause, and the Free Exercise Clause. The Establishment Clause prevents the government from instituting any particular religion of its own. The Free Exercise Clause prohibits the government from interfering with the religious expression of the people. Although these two clauses often work together, there are inherent tensions between both clauses – either one taken to its logical extreme will be in conflict with the other. Some would argue that by prohibiting religion’s involvement in government, that religious expression is being violated, and vice-versa. The tension between these clauses is due in part to the divisive history of their creation. Three distinct viewpoints emerge from the Founders: First is the view that religion must be protected from the corrupting influence of government. This view originated with the theologian Roger Williams, who helped found the colony of Rhode Island, a haven for minority religious groups at the time due to its strong protections for religious freedom. Thomas Jefferson also had strong views on the separation of church from state, but did so from the inverse position of Williams- church and state must be separated so that government would not be corrupted. Jefferson’s views were most strongly expressed in his 1802 Letter to the Dansbury Baptists, where he assured a minority religious group of a wall between church and state, a phrase which has been used in the discussion of the two clauses ever since. Jefferson, with the help of James Madison, also drafted and helped pass the Virginia Statute for Religious Freedom – a law guaranteeing religious freedom within Virginia that acted as a model for the religion clauses in the First Amendment. The third view of these clauses comes from James Madison. Madison felt that both government and religion would be each better off if they were separated, with competition between various religious sects balancing power rather than dominance by one.
What is Religion? Important Cases
Inevitably when analyzing constitutional questions under the religious clauses the question of “What is considered a religion?” will arise. The Supreme Court has largely steered clear of this issue, instead choosing to accommodate a wide variety of beliefs as long as they are “sincerely held” by the person or organization in question.

One line of cases on this question are those dealing with who could be exempt from the Selective Service Act – the draft for the military – due to being “conscientiously opposed to war” because of “religious training or belief.” In United States v. Seeger, decided in 1965, the Court broadly interpreted what qualified as “religious training or belief.” The party involved in the case objected to participating in war, but did not believe in a “supreme being” as required by the statute.

The Court held that nontheistic views fell within the definition of religion, and that a sincere and meaningful belief, equivalent to that of someone who believed in God, would fit the definition under the law. The Court upheld this view again in a very similar case, Welsh v. United States, and also added that a belief in God is not necessarily a prerequisite for a religion. It is important to note that these two cases did not explicitly touch on the First Amendment, but instead dealt with statutory interpretation of the Selective Service Act. Still, these cases may provide insight into how the Court interprets religion.

The determination of whether or not a belief is religious has appeared in other Supreme Court cases where the individual has sought religious exemptions to certain laws. The “sincerely held belief” reasoning has been applied there as well. Realizing the potential danger in allowing a court or jury to rule on a person’s religious beliefs, the Court has cautiously kept the decision making as to whether or not the person sincerely holds a belief.

The decision should not consider the religion or belief – only whether or not the person actually believes in it. This was exemplified in the Court’s decision in United States v. Ballard. An organization was indicted for asking for donations in return for curing diseases. The Court held that the jury could rule whether or not the defendant’s had this belief, but not on whether or not they could actually cure diseases. As the majority opinion phrased it, “Men may believe what they cannot prove.” If the Court allowed the jury to actually rule on the religion itself, hostile juries could discriminate and destroy religious liberty.

Even comparisons between what individuals believe compared to others within their own religion do not have a decisive effect on courts decisions in these cases. In Thomas v. Review Board of the Indiana Employment Security Division, the Court held that a sincere religious belief can be claimed even if it was inconsistent with the doctrines of their religion. The Jehovah’s Witness in Thomas was denied unemployment benefits after quitting his job. The man had left his job because they had transferred him to a department making tanks for the military, something which he said he opposed on religious grounds. Despite the fact that other Jehovah’s Witnesses said that working on tanks would have been fine, the Court said this was irrelevant and that the Court would not become “arbiters of scriptural interpretation.”
 United States v. Seeger (1965)Welsh v. United States (1970)


United States v. Ballard (1944)


Thomas v. Review Board of the Indiana Employment Security Division (1981)

Freedom to Assemble and Petition Government for Grievances

The right to assembly is often used interchangeably with the right to associate. Generally however, the right to assemble usually takes on a more public form as the right to gather in protest. The right to petition for redress of grievances allows people to access to their government in order to express demands for action without being retaliated against. Clearly very closely associated to other First Amendment Rights like the freedom of speech and the freedom to associate/assemble, the right to petition is unique in that it secures access for the speaker to each branch of government. The government is not obligated to respond, but is obligated to allow access and listen. Frequently together, these two rights work in tangent – assembling to petition the government for grievances.
Right to Assemble and Right to Petition Important Cases
The right to peacefully assemble was declared to be a right “cognate” and “inseperable” from the freedom of speech and freedom of the press in the 1937 decision De Jonge v. Oregon. De Jonge had been arrested under a state criminal syndicalism statute because he organized a peaceful public meeting where he spoke on behalf of the Communist Party. The Supreme Court held that since the right to assemble was so closely related to the rights of free speech and the free press, it should have the same level of protection under the 14th Amendment. The government could prohibit speech that instigated crime or violence, but could not criminalize peaceful meetings that were not advocating crime or violence. De Jonge’s conviction was overturned.

In Thomas v. Collins, decided 1945, the right to petition and assemble was again considered to be inseparable from other First Amendment rights. The case involved a Texas law which required union members to get an organizers permit prior to being allowed to solicit new members. An organizer was convicted of speaking at a rally without a permit, and he challenged the constitutionality of the statute. The Supreme Court sided with the labor organizer, holding that the law violated the First Amendment. The Court emphasized that protected free speech being expressed in an assembly or petition can take many forms, and that petitions did not necessarily have to be political in nature. A solicitation for members to join a union may very well be business and economics related, but is still equally protected and would require a compelling government interest to be able to infringe it.

The Court further clarified the protections afforded to the right to petition in 1961 when it decided Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. The case involved a lawsuit by long distance trucking companies which alleged that multiple railroads had conspired, in violation of anti-trust laws, to influence the government to pass legislation that was harmful to truckers. Of particular issue was a publicity campaign conducted by the railroad companies to influence legislation that was pro-railroad and anti-trucker. The railroads filed a counterclaim, alleging the same violations of anti-trust laws, again for a publicity campaign, that the truckers had coordinated.

The Court held that publicity campaigns designed to influence the legislature into passing laws do violate anti-trust laws. The majority reasoned that anti-trust laws were designed to stop unfair private agreements between monopolies and companies – whereas these publicity campaigns instead worked through influencing official government action. The campaigns were in effect petitioning the government, and petitioning the government for a desire change is how the democratic system is supposed to work. Multiple groups or individuals working together to petition the government was likewise protected – interpreting the Sherman Act any other way would mean that Congress had passed it intending to infringe on the First Amendment, which it had definitely not intended.

Noerr is considered a companion case to United Mine Workers v. Pennington, a labor union case decided four years later. The Court applied the same logic used in Noerr to hold that labor unions do not violate anti-trust laws when they conduct joint efforts to influence public officials. Combined, these two cases created the “Noerr-Pennington Doctrine”, a doctrine which protects the rights of groups to petition the government.

The decisions in both Noerr and Collins were cited when the Court decided
National Ass’n for Advancement of Colored People v. Button in 1963. Virginia had amended its laws to effectively criminalize the way the NAACP solicited and retained clients within the state. The NAACP sued on the grounds that this violated the First Amendment. The state argued that the NAACP’s soliciting for clients did not count as protected First Amendment speech, but was actually professional business conduct which the state could regulate.

The Court held that the NAACP’s solicitation for clients was within the protection of the First Amendment. Citing Collins, the Court reasons that the First Amendment protects many kinds of messages, particularly advocacy. In this sense, the NAACP’s lawsuits actually represented one of the only forms of petition that existed for discriminated-against minorities in the south: petitioning of the courts for relief for redress of grievances. Citing Noerr, the Court emphasized that coordinated group petitioning was protected, and that the state’s interpretation of protected speech was far too narrow. The NAACP was not a standard law firm acting between private actors – its entire purpose was pro-bono work to vindicate the constitutional rights of others. Given the appropriate First Amendment protection, the Court concluded that the solicitation was not something the state could ban without first showing a compelling state interest.

The same year as Button was decided, the Court also issued an opinion in Edwards v. South Carolina which affirmed the right to peaceably assemble and petition the government. A group of civil rights demonstrators protested outside the South Carolina statehouse, and a hostile white crowd formed in response. The police ordered the protesters to disperse and arrested them when they refused, for breaching the peace. The Court overturned this conviction as violating the First Amendment rights of the protestors to free speech, right to assemble, and right to petition. Non-violent protest at the site of the state capitol building, over grievances regarding unequal racial treatment, was determined by the majority to be an “exercise of these basic constitutional rights in their most pristine and classic form.” A similar ruling was reached in the 1965 case Cox v. Louisiana.

The government cannot limit or deny the right to assemble because it does not agree with, or dislikes, the assembly or the message they are expressing. In Coates v. City of Cincinnati, a Cincinnati city ordinance prohibiting three or more people from gathering on a sidewalk that “annoyed” others was struck down as violating the First Amendment rights to assembly. The Court held that mere public intolerance or annoyance cannot ever be enough to criminalize assembly, and that the ordinance was unconstitutional on its face. A footnote in the opinion quoted a lower court making a similar ruling:

“[A]rrests and prosecutions, as in the present instance, would have been effective as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe, Patrick Henry, Thomas Jefferson, George Washington and others for loitering and congregating in front of Raleigh Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at any time during the summer of 1774 to the great annoyance of Governor Dunsmore and his colonial constables.”

The right petition extends to all branches of government. The 1972 case California Motor Transportation Co. v. Trucking Unlimited involved a lawsuit between groups of trucking companies. The plaintiff group claimed the other had instituted multiple state and federal actions opposing plaintiff’s applications for operating rights in bad faith: effectively abusing the legal and regulatory systems in an attempt to drive the plaintiff out of business. The defendants argued that their actions were protected by the Noerr-Pennington Doctrine, but the Court disagreed. First, the Court held that the right to petition applied to all aspects of government: in this case, this included agencies because they were the “creature of the legislature, and the arms of the executive.” Having established this, the Court re-iterated its decision in Noerr. However, the Court differentiated this particular case, because of the allegation of bad faith abuse of the process. Such conduct, if true, would actually be the defendant infringing the plaintiff’s ability to petition government. The Court held that conspiracy to infringe on a party’s ability to petition government would not be immune from anti-trust laws.

Although the right to petition guarantees that a speaker may petition the government for grievances, the First Amendment cannot make the government respond or acknowledge the speech. In the 1979 decision Smith v. State Highway Employees, Local 1315, a public employees union sued the government for refusing to allow a union to file a complaint on behalf of its members. The government insisted that grievances could only be filed by individuals, who then must submit it to their supervisors. The Court held that this did not violate the First Amendment because the government wasn’t preventing the union members from associating or expressing the complaints. Instead, the government was simply choosing one complaint procedure, and choosing not to listen to the grievance petition when submitted as a union. The majority stated that, “[T]he First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.”
 De Jonge v. Oregon (1937)Thomas v. Collins (1945)


Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc (1961)




United Mine Workers v. Pennington (1965)


NAACP v. Button (1963)


Edwards v. South Carolina (1963)


Cox v. Louisiana (1965)


Coates v. City of Cincinnati (1971)


California Motor Transp. Co. v. Trucking Unlimited (1972)


Smith v. Arkansas State Hwy. Employees Local

Freedom of the Press

The Free Press Clause protects the rights of individuals to publish ideas and information without interference from the government. The importance of a free press cannot be understated: the press reports on the government as well as national and local affairs. Without that reporting, citizens would not be informed and could not properly make decisions like who or what to vote for. The Free Press Clause is intertwined with the Free Speech Clause, yet also is a distinct fundamental right. Despite its application to traditional news and media outlets, this right is also an individual fundamental right. The press is considered any form of publication which acts as a ‘vehicle’ for expressing information or opinion. This has been extended to a wide variety of traditional media, such as newspapers, yet also to newer forms of media such as television and video games.

Access

Judicial Proceedings Important Cases
The Court’s current position is that denying the public access to court room proceedings violates the First Amendment. This was not always the case – in the 1979 case Gannett Co. v. DePasquale, the Court held that pre-trial hearings dealing with suppressing a defendant’s confession could properly be closed to the public and the press. The defendant’s in the trial argued that publicity before the proceedings had jeopardized their right to a fair trial under the 6th and 14th Amendments. The Court agreed, stating that although the 6th Amendment guaranteed a defendant a public trial, it did not necessarily guarantee the public a right to the trial. A trial transcript was still provided afterwards and the Court determined this satisfied the First Amendment.

Since Gannett however, the Court has consistently ruled against closing trials to the public. Decided only a year after Gannett, Richmond Newspapers v. Virginia held that the public and press had a First Amendment right of access to court proceedings. The trial in question in this case had been reversed once and declared a mistrial twice – for the fourth time, the lower court ordered the proceedings to be closed. The plurality opinion rested heavily on the long history of open and public trials, and warned that changing this could damage the First Amendment. The concurring opinion stressed that public access to trials increased fairness and informed the public on the judicial branch of government.

This right of access under the First Amendment also applies to certain pre-trial proceedings. In Press-Enterprise Co. v. Superior Court, the Court held that the public had a First Amendment right of access to voir dire proceedings. The Court emphasized that this was a crucial portion of a trial, and that in court proceedings there was a strong presumption of openness. To overcome this presumption, an overriding interest must be given based on findings, and it must be narrowly tailored. One example of this would be in a voir dire proceeding where potential jurors may have to reveal sensitive information about themselves.

When the press has tried to argue for specific right of access just for the press however, they have largely been rebuffed by the Court. In Seattle Times Co. v. Rhinehart, the Court held that the press did not have any right of access to pre-trial discovery that was under a protective order. The Court specifically said the press would not be allowed access because the general public would not be allowed access. This same reasoning was applied to the press’ attempts to gain special access to prisoners to interview prisoners. In Saxbe v. Washington Post Co., the Court held that the press was not given “special access to information not shared by members of the public generally.”
 

Gannet Co., Inc. v. DePasquale (1979)


Richmond Newspapers v. Virginia (1980)

Right of Reply in Media Important Cases
Another question of access involves the right of access to the press itself. Should press outlets be required to provide an opportunity for opposing views or a right of reply? This policy used to be codified in the FCC’s “fairness doctrine”, which dictated that broadcast stations must present balanced discussions on public issues, including a right of reply when the honesty or character of an individual is attacked. Although the FCC eventually revoked this doctrine on its own, the Supreme Court upheld it as constitutional. However, this right of access – the right to be provided an opportunity to respond or present the opposing side – the Court expressly chose not to extend to print media.

In the 1969 decision Red Lion Broadcasting Co. v FCC, the Court considered the constitutionality of the fairness doctrine. The Court examined the legislative history of the FCC and the doctrine, and determined that the commission was following the intent of the law and had not exceeded its authority. Focusing on the nature of broadcast radio and television stations, the Court noted that the available number of broadcast channels was limited – justifying government regulation of who could use them. The Court reasoned that the rights of the public, rather than the rights of the broadcaster, were more important when the broadcaster was using such a limited public resource. Therefore the First Amendment did not provide a censorship right to broadcasters using this limited resource. Furthermore, as regulators of the broadcasts, the FCC was in a position to guard against any broadcasters who refused to discuss controversial decisions in trying to avoid the fairness doctrine.

Despite being upheld by the Supreme Court, the fairness doctrine was vehemently opposed by the Reagan administration and was eventually revoked. The ideas behind this doctrine were also found not to apply to print media. Decided five years after Red Lion, Miami Herald v. Tornillo dealt with the right of reply in newspapers. A Florida law required that any political candidate whose character had been attacked must be provided space to reply in the paper that attacked them. The Court struck this down as unconstitutional, stating that this punishes newspapers due to the cost of printing and the necessary exclusion of content that otherwise would have taken that reply’s place. This also interfered with the First Amendment because it intruded on the editorial powers of a newspaper. Although not specifically mentioned, the distinction between Red Lion and Tonillo seems to be the limited nature of broadcast frequencies and channels compared to print media.
 Red Lion Broadcasting Co. v. FCC


Miami Herald v. Tornillo

Sources

Sources Important Cases
Frequently reporters will base their news stories off of confidential sources who do not wish to be revealed. Despite the freedom granted to the press in other areas, the Supreme Court has refused to give reporters much in the way of special protection when it comes to protecting the confidentiality of sources. Reporters are expected to truthfully answer questions under oath in court, even in regards to the identities of sources, the same as any other individual under oath. This has proven to be quite controversial, with proponents of press freedoms arguing this hurts reporting by preventing sources that would otherwise come forward.The most influential decision on this subject is Branzburg v. Hayes, decided in 1972. The decision actually involved three cases decided at once. In the first two, a reporter interviewed individuals making hashish and smoking marijuana in Kentucky. The third case involved a reporter who had reported on the Black Panthers and stayed in their headquarters. In each case, the reporting had been brought to the attention of the police. This resulted in grand jury subpoenas for the reporters, where they were ordered to identify the individuals in their pieces. Both reporters refused, citing the First Amendment, and each was held in contempt of Court.


The Supreme Court held that no such “reporter’s privilege” existed under the Press Clause of the First Amendment. The majority was not convinced that the risk and burden this placed on the press would be as bad as the press advocates argued. The Court concluded that the press had been successful so far without that constitutional privilege, so the decision would not change anything. On the other hand, giving reporter’s the ability to refuse to answer a grand jury – something other citizens can’t do – would hurt law enforcement and judicial proceedings. The Court acknowledged that the press was still due some protection, so it settled on a test: in order for a subpoena for a reporter regarding his sources to be valid, there must be a clear connection between the information sought and a compelling government interest.


Justice Powell, the deciding vote, wrote a concurrence where he urged a balancing test. In his notes published much later, it became clear that Justice Powell did not want to establish a constitutional privilege, but instead an evidentiary rules privilege. His notes expressed concern on creating a constitutional privilege because it would become difficult for the court to decide who could be considered “the press” under the privilege’s protection. Some states have interpreted Justice Powell’s concurrence as confirmation that some sort of reporter’s privilege exists, and have implemented their own state laws creating one.


As recently as 2014, the Court has still shown unwillingness to provide a shield for journalists’ anonymous sources. Without issuing an opinion, the Court declined to hear the case of a New York Times reporter facing jail time for refusing to name his CIA source, who the government accuses of illegally leaking information.


The Court has held that searches of news rooms for source material does not violate the freedom of the press or the Fourth Amendment. In Zurcher v. Sanford Daly, police raided and searched a newsroom they believed had pictures of individuals at a recent student protest they were investigating. The newspaper sued, and the Court held that even as third parties who were not suspected of a crime, a search warrant could still be issued for evidence of a crime. The Court reasoned that the normal procedure for getting a search warrant was sufficient protection enough to address any First Amendment concerns. Congress later passed the Privacy Protection Act of 1980 in response to this decision, giving greater protection to journalists from police searches of their offices.


One area where the Court has decided to extend a shield to the press is in regards to liability of the press for the actions of sources. Frequently, when a source leaks information to the press, the manner in which a source has obtained the information or released the information is illegal. This begs the question of whether or not the press is allowed to report or publish information which has been acquired through illegal means.


In the 2001 decision Bartnicki v. Vopper, a phone call between a union boss and a lead negotiator regarding a strike was illegally recorded. The press subsequently broadcast the tape, and the union president sued. At the time, a party that willfully disclosing communications that it knows were obtained illegally was in violation of the law. The defendant conceded this, but argued that his reception of the recording from the source was lawful, and that the publishing was protected by the First Amendment.


The Court agreed with this interpretation. First, the Court reasoned that the purpose of the statute was to deter people from wiretapping conversations: since the press in this case did not actually do the wiretapping, holding them accountable did little to fulfill the purpose of the law. The recording was anonymously delivered to the defendant. Furthermore, the contents of the illegal recording were of public interest, regarding a controversial labor dispute. Therefore reporting on recordings of public interest should be given the same level of protection that was afforded to other reports or criticisms of public figures and government officials (such as in New York Times v. Sullivan).

 Branzburg v. Hayes (1972)


Zurcher v. Sanford Daily (1978)


Bartnicki v. Vopper (2001)

Free Speech Clause

Compared to other clauses and amendments, the historical evidence of the Founder’s original intent behind this clause is scarce – there was little debate about this clause, and no records were kept during the first Senate which approved it. To further add to the confusion regarding original intent, several of the founders were involved in the passage of the Alien and Sedition Acts of 1798. These laws prohibited criticism of the government, and were used on political opponents of President John Adams until Thomas Jefferson was elected president and repealed them. Despite never being ruled upon by the Supreme Court, Justice Brennan would later describe in the majority opinion for New York Times Co. v. Sullivan that the argument against the constitutionality of the Acts ”[H]as carried the day in the court of history.” The ambiguity regarding the original intent of this clause has led to the Court developing the law relating to free speech with less of a focus on original intent compared to other parts of the amendment. Several schools of thought have developed regarding the rationale behind protecting freedom of speech. Unrestricted communication, particularly political speech, is essential to a working democracy and self-governance. Protecting political speech allows citizens to keep their government in check and effectively inform themselves as voters. Free speech also allows for discovery of truth through the “marketplace of ideas”. If different ideas can be shared freely and compete against each other, the best ideas can rise to the top. Additionally, free speech is considered an essential part of humanity and personhood. Humans have a natural need to express themselves, and free expression allows people and society to develop on an important personal level regardless of the effect it has on others. Lastly, protecting free speech promotes tolerance. By protecting the expression of unpopular ideas, society becomes more tolerant and open to discussion as a whole.

Freedom of Association

The freedom of expressive association – to interact and join with others as a group to advance beliefs or ideas– is a fundamental right, considered an essential part of both the Fourteenth and First Amendment. Advocacy of a message is enhanced by groups, because groups have more resources than individuals. Simply being in a group can stand as a symbolic message by itself. By protecting the right to express beliefs in a group, the freedom of expression is strengthened as whole.
Group Membership Important Cases
The most direct way that a government could infringe upon the freedom of association would be to punish citizens for associating or being members of a group. Because of this, punishment for group membership is only allowed under very specific circumstance – when the government has proven that a person is actively affiliated with a group, knows of its illegal objectives, and has specific intent to further those objectives.

Like the other First Amendment related rights, case law about government restriction of the freedom of association occurred significantly during the Cold War. In Scales v. United States, the Supreme Court affirmed the conviction of a chairman of a state communist party. The Court reasoned that if the group’s speech advocating illegal actions was not protected speech, then the association of a group to promote the same would not be protected under the First Amendment either. The majority settled on a test that would be applied in future cases: group membership will not have protection if the person is affiliated with a group, knows of its illegal goals, and has intent to further those illegal goals. Another case decided that same day, Noto v. United States, reversed a similar conviction because there was no evidence of the individual’s own intent to commit illegal activities.

The test used in Scales has been used by the Court in the areas of employment and bar membership as well. In Elfbrandt v. Russell, the Court struck down a state’s loyalty oath and ban on anyone holding office who was a member of the Communist Party. The Court held that the government couldn’t punish someone due to their membership in a group unless they could prove that they knew of the group’s illegal objectives and also intended to further them – doing so would violate the First Amendment. Simply membership alone would only be guilt by association, and is not enough to be constitutional.

In Baird v. State Bar and In re Stolar, the Court invalidated state bar questions asking if the applicant had ever been a member of the Communist Party or other anti-government groups. While these questions were struck down, the Court upheld a question in Law Students Civil Rights Research Council v. Wadmond, because it specifically asked if the applicant intended to carry out a group’s violent anti-government goals.
 Scales v. United States (1961)


Noto v. United States (1961)


Elfbrandt v. Russell (1966)


Baird v. State Bar of Arizona (1971)


In re Stolar (1971)


Law Students Research Council v. Wadmond (1971)

Membership Disclosure Important Cases

Sometimes the suppression of the freedom of association can happen in more subtle ways than outright punishment. When groups are forced to disclose their members, this can have a “chilling” effect on association. This happens particularly with groups that have dissident or minority views, where being publicly associated with an unpopular group may harm them. Removing privacy from the freedom of association can make people less likely to join together and associate, thereby weakening the freedom of expression. Because the privacy of association is so important, the government can only force group’s to disclose members if it successfully passes strict scrutiny – the most difficult standard. However, this standard only applies in cases where disclosure will also chill or hurt association.


The Court, in the 1958 decision NAACP v. Alabama ex. Rel. Patterson, used strict scrutiny to strike down an Alabama order. An Alabama law required certain out of state corporations to meet certain disclosure requirements. Alabama demanded that the NAACP give up a full list of its members and held them in contempt of court for refusing to do so. Given the timing, in the midst of the Civil Rights Movement, releasing the names of every NAACP member in a southern state like Alabama would have opened up the exposed members to violence and harassment. The fear of experiencing this would likely have had a chilling effect on association, because people would be intimidated by the chance they would be revealed as members.


The Court stated that the freedom of association, and the privacy that comes along with it, was protected under the First Amendment and the Fourteenth Amendment. Any interference with those rights would therefore have to meet strict scrutiny, and the Court held that Alabama did not meet the standard. Alabama’s stated reason for wanting the list was to see if the NAACP was conducting business in violation of other Alabama statutes. The NAACP complied to a large extent, such as disclosing leaders and their activities, but refused to give up all of its rank and file members. The Court did not see the relation between the government’s goal and revealing rank and file members, so Alabama failed to meet strict scrutiny.


The Court is willing to allow for disclosures in the context of campaign finance. In Buckley v. Valeo, the Court upheld a provision of a campaign finance law which required that records of names and addresses of anyone donating over $10 be made available to the public. Acknowledging that there still was a privacy interest in association, the Court still however held that the public interest in knowing who was financing elections outweighed this. If identities were not disclosed, there would be no practical way to find out who was violating election donation limits. The Court did take care to mention that it could possibly see disclosures of smaller parties creating a chilling effect, though no such parties were part of this case.


The Court again emphasized its position on campaign finance disclosure recently, in McCutcheon v. Federal Election Committee. Disclosure of donations does put some burden on speech, but at the same time, it does not create any sort of ceiling or limit on the speech. Combined with the governmental and public interest it serves in exposing any corruption, disclosure of direct donations is constitutionally valid.

 NAACP v. Patterson (1958)


Buckley v. Valeo (1976)


McCutcheon v. FEC (2014)

Discrimination Important Cases
Laws forbidding discrimination have frequently been attacked by individuals claiming that the right of association allows one to discriminate and exclude certain people from their group. One seminal decision on this topic is Roberts v. United States Jaycees. Decided in 1984, the lawsuit involved a fraternal organization of young men known as the Jaycees challenging the Minnesota Human Rights Act. The Act prohibited discrimination based on race and sex, and the Jaycees argued that the right of association protected their ability to exclude women from their club.

The Court affirmed that the freedom of association was a fundamental right, and that forcing a group to accept members it does not desire is an intrusion on that right. Still, the Court upheld the law, finding that the state’s interest in stopping discrimination was compelling, and that the restriction was unrelated to suppressing any message. The Court did not see how allowing women would undermine any expressive message of the Jaycee’s. While the Court may have allowed discrimination in smaller and more personal “intimate association” under the 14th amendment, the size of the Jaycee’s excluded them from being considered for that as well.

The Court upheld anti-discrimination laws in several other suits following Jaycees when those groups were of similar size and nature (including rotary clubs and clubs with over 400 members). Despite this, the Court has acknowledged certain instances where the right to associate will protect discrimination. Intimate association – small, personal gatherings – are protected. Additionally, if discrimination is in fact the very message or expressive purpose behind the association, it is protected.

The message exception was affirmed in the decision Boy Scouts of America v. Dale in 2000. A Boy Scouts’ scoutmaster was expelled from the Scouts after publicly announcing his homosexuality and he sued under New Jersey’s public accommodations law which prohibited discrimination. The Court ruled in favor of the Boy Scouts, holding that the forced association of a gay scoutmaster within the organization violates the Scouts right to freedom of expressive association. The Court held that a group gets deference from the Court in regards to what its expressive message is, as well as what will interfere with that message. In this case, the Boy Scouts claimed they were anti-gay, and that having a gay scoutmaster would undermine and ruin this group expression. The decision was decided 5-4, with the 4 dissenting judges arguing against the Scout’s determination of their message: sexuality having been expressly not mentioned or discussed in any Scout literature or rules.
 Roberts v. United States Jaycees (1984)


Boy Scouts of America v. Dale (2000)

Forced Association

Can the government force people to associate? Making individuals associate or include unwanted others in their group certainly affects the right of free association. Generally, the Supreme Court has upheld mandatory association when the association is content neutral.
Mandatory Fees Important Cases
In Abood v. Detroit Board of Education, the Court upheld a mandatory union service charge for all local government employees. The unions argued that the dues were used to support collective bargaining that benefited all employees, union members or not, and therefore all employees had to contribute equally to be fair. The non-members argued that this violated their freedom of association, because they were having to pay money to a union they were not a part of and might not necessarily agree with. The Court held that mandatory union dues, used for collective bargaining purposes, was constitutional. This was because any employees who did not pay would still benefit from the collective bargaining, essentially getting a “free ride” on the contributions of others. However, the Court specifically stated that money donated by non-members could not be used on other political issues. While collective bargaining benefits all employees, campaigning for certain politicians or political issues unrelated to this did not. The unions were free to use their member’s contributions for this, but could not coerce and force non-members to contribute to those causes. Recently, many believed Abood would be overturned in the Harris v. Quinn decision. However, the Court differentiated the cases and failed to expressly overturn Abood. The Court simply declined to extend Abood to the case of home healthcare personal assistants, which the Court determined to be different from other state employees that might otherwise enjoy union benefits.


A similar ruling to Abood was reached in Keller v. State Bar of California. The Court held that state bar dues could not be used to fund advocacy of unrelated political issues such as “gun control or [a] nuclear weapons freeze initiative”, yet could be used for “activities connected with disciplining members of the Bar or proposing ethical codes for the profession.” The similarity between the two decisions being the Court’s efforts to distinguish between associated related to the purpose of the group as a whole and to ideological or partisan issues.


Mandatory association through fees has also been upheld in public universities. In University of Wisconsin v. Southworth, the Court upheld mandatory activity fees. Conservative students had sued the school, claiming that their freedom of association was being infringed by having their activity fee subsidize other student groups. The Court stressed the importance of the activity fee, which served an important interest in keeping campus diverse. As long as the funds were distributed in a content neutral matter, the court decided, then they did not violate the First Amendment.

 Abood v. Detroit Board of Education(1977)


Keller v. State Bar of California (1990)


Harris v. Quinn (2014)


Board of Regents of the University of Wisconsin v. Southworth (2000)

Parades Important Cases
Outside of requirements for mandatory fees or contributions, the Court has mostly refused to allow forced association. In the 1995 case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Supreme Court sided with private parade organizers who refused to admit the Irish-American Gay, Lesbian, and Bisexual into their parade. The Court emphasized that the parade was an inherently expressive activity, as was the gay organization’s plans for joining. Additionally, the right to free expression and association also included the right to not speak, or not be associated with certain groups. The decision was unanimously in favor of allowing the organizers to exclude the other organization from the parade – holding that “under the First Amendment… a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

Prior Restraint

Prior restraint is when some sort of administrative system or a court order stops speech from occurring. These kinds of restrictions take several forms, including court ordered injunctions on speech and licensing/permit systems. Given the widespread use of prior restraints by the colonial British, prior restraint was expressly viewed as one of the worst forms of censorship by the founders. This stems in part from the unique nature of the restriction, which works to stop speech before it can even occur, compared to punishing it after it has been communicated. Because of this, prior restraint is only considered constitutional under particular, narrow exceptions. Often, issues of prior restraint are intertwined with the freedom of the press. Prior restraint issued by a court must be narrowly tailored and burden no more speech than necessary.
Collateral Bar Rule Important Cases
Prior restraints are often considered the worst forms of censorship, partly because of how they work with the ‘collateral bar rule’. The collateral bar rule prevents any challenges to a court order if the party disobeys the order before first challenging it in court. When a law is unconstitutional, punishments for those who violate that law can be challenged. Prior restraints are often court ordered however, so a person who speaks in violation of one without first challenging it in court may not then challenge it later, regardless of the constitutionality of their speech. In Walker v. City of Birmingham, the Supreme Court upheld charges against Dr. Martin Luther King Jr. for violating a court order preventing him from marching without a permit. Additionally, the Court denied him the ability to challenge the constitutionality of that order under the collateral bar rule.

Some courts have even applied this collateral bar rule to licensing systems. When deciding to apply this rule to licensing systems, the Court will first look to see whether or not the licensing system is constitutional in the first place. In the 1953 case Poulus v. New Hampshire, the Court upheld a conviction for practicing a religious ceremony in a park without a permit, and denying any constitutional challenges because the defendant had not challenged his permit denial under that system’s through the permit process first. The Court determined that the system set up to review license denials in Poulus was sufficiently constitutional and did not violate due process.

The Court will not apply the collateral bar rule if the licensing system is not constitutional on its face, however. The decision in Shuttlesworth v. City of Birmingham overturned the convictions of civil rights protesters for marching without a permit. Because this particular licensing system gave local officials unlimited discretion to approve or disapprove permits, the Court determined it to be unconstitutional and said that a “person faced with such an unconstitutional licensing law may ignore it.” It is important to note that the marchers in Shuttlesworth marching without a permit were doing so in violation of the same permit system as Dr. King in Walker. However, Dr. King violated a court ordered injunction, whereas the marchers in this case violated an unconstitutional permit law.
  Walker v. City of Birmingham (1967)


Poulous v. New Hampshire (1953)


Shuttlesworth v. City of Birmingham (1969)

National Security Important Cases
The first major exception to the general rule against prior restraint is in regards to issues of national security. Surprisingly, the initial boundaries of this exception were set in a case that was not about national security at all. The decision in Near v. Minnesota struck down a court order that prevented a newspaper from publishing anything “whatsoever containing a malicious, scandalous, and defamatory matter.” After discussing historical context of the freedom of the press, the Court determined that punishment after the fact was the usual and proper way of dealing with defamatory press because of the “deep seated” belief that prior restraint violated the First Amendment. However, the Court did outline hypothetical situations where an injunction against the press could incur. One of these situations was if the press were to release “the sailing dates or the number and location of troops.”

This national security exception was central to the famous case New York Times v. United States. In 1971, the New York Times and the Washington Post began publishing pieces from a secret Defense Department history of the war in Vietnam that had been leaked to them. The government wanted injunctions on national security grounds. The 2nd Circuit reversed the lower courts and approved the injunction, and only 18 days after they first began to be published, the articles were ruled on by the Supreme Court. Voting 6-3, with 10 separate opinions, the Court held that the injunction was unconstitutional because the government failed to meet its burden to overcome the presumption against prior restraint.

All the Justices of the majority agreed that the government had failed to meet the requirements to necessary to keep a constitutional prior restraint of the press, yet their opinions varied. Justices Black and Douglas wrote strong opinions against all use of prior restraint against the press, declaring “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” The remaining justices in the majority felt either that some additional congressional approval was needed for the executive to ask for such prior restraint, or that strict scrutiny was required and had not been met.Chief Justice Burger and Justice Harlan both dissented because they felt the decision had been rushed: they argued that the injunction needed to remain in place at least until the time the Supreme Court had been able to review the material. Justice Blackmun voiced similar concerns but also emphasized that the release of the documents may prolong the Vietnam War or cost the lives of soldiers.
 Near v. Minnesota (1931)New York Times Co. v. United States (1971)
Preserving Fair Trials Important Cases
Another area where there can be prior restraint is if they are necessary to protect the fairness of a trial, by restricting what the media can share. Although this is technically permissible, it has almost never been upheld in practice. In a rare move, the Court upheld such a ban in Nebraska Press Association v. Stewart, where the trial court prohibited the media from broadcasting confessions or admissions by the accused in a murder trial in a small town. The opinion weighed the freedom of the press against the right to a free trial and found that one could not be greater than the other. This led the Court to determine that a very strong presumption against prior restraints of this type exists, and that it could only be overruled if it passed a three part test. First, there must be excessive publicity without the prior restraint, and this publicity will jeopardize fairness. Second, this must be a method of last resort – all other methods to achieve a fair trial must be ineffective. Lastly, the prior restraint must be workable and effective – an ineffective prior restraint will not be upheld.

Nebraska’s prior restraint was upheld, but no other prior restraint like it has been upheld since. The question of whether or not a Court’s prior restraint of participants outside of the press – such as attorneys involved in the trial – has never been decided on.
 Nebraska Press Association v. Stuart (1976)
Obscenity Important Cases
The Court has upheld injunctions on the showing of films or other material that has been adjudicated as obscene. This is only after the material in question has been fully adjudicated as obscene in an adversarial court proceeding, such as the films in Paris Adult Threatre I v. Slaton, which had only faced an injunction from being shown after it was determined obscene by the Georgia Supreme Court.The Court has not upheld injunctions based on obscene material in general. In Vance v. Universal Amusement Co., the Court struck down indefinite prior restraints against a theater for “habitual use” for showing obscene material. This was because not all of the material being shown had been finally adjudicated like the material in Slaton. Paris Adult Theatre I v. Slaton (1973)


Vance v. Universal Amusement Co. (1980)

Licensing Important Cases
Licensing, the requirement for a license or permit in to be able to express speech, is the most traditional form of prior restraint. In order for a license or permit scheme to be held as constitutional, three conditions must be met. First, there must be an important reason for licensing. Second, there must be clear standards for the licensing that leave almost no discretion to the government. Lastly, there must be procedural safeguards to ensure constitutionality and fairness.

An important reason must be necessary in order for a licensing system to be justified. In Cox v. New Hampshire, the Court upheld a city licensing scheme for parades and demonstrations. The city emphasized two reasons: it needed prior notice so it could properly police the event, and so that it could make sure groups did not overlap in the same routes and areas.

In contrast to Cox, the Court refused to uphold a licensing scheme for door to door solicitation in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton. The Court determined this would place a burden on speech by deterring people who would not want to seek a license. This burden was not justified by the reasons given by the government, which included preserving resident’s privacy and lessening the likelihood of crime. Reasoning that the residents could hang “no solicitation signs” and that a permit system wouldn’t stop a criminal from knocking on a door, the Court held these were not sufficiently important enough reasons to burden speech through a licensing system.

Perhaps the largest concern of the Court is the potential for a licensing system to be used as a way to discriminate against certain messages or content, allowing some speech and not others. The second requirement for a constitutional license or permit system is that there is a minimal amount of discretion or arbitrary decision power in the hands of the licensing government official. In City of Lakewood v. Plain Dealer Publishing Co., the Court declared a permit system for newspaper racks to be unconstitutional. In order to place a newspaper rack on public property, a permit would have to be annually approved by the mayor. There were no neutral criteria for the mayor to determine which newspaper racks would be permitted, effectively giving him uncontrolled power over the existence of newspaper racks. The Court determined that there was a facial constitutional issue anytime a licensing law gives a government official the ability to discriminate against viewpoints. Additionally, the Court emphasized the danger of too much discretion given to the government is one of self-censorship: those applying for a license will minimize negative speech in order to qualify for a license. Un-controlled discretion is dangerous because without proper criteria on how to approve a permit, it becomes difficult to measure if an official is being fair, or to decide how to fix the situation if they are not.

Procedural safeguards are required for any licensing scheme. A decision to grant or deny a license must be prompt, a fair hearing must be provided, and prompt judicial review of any decision denying a license must be available. In Freedman v. Maryland, the Court struck down a permit system for displaying movies that required approval by a censor board before a movie could be shown. The Court held that the safeguards in place were inadequate: if the censor board ruled against a film, the permit-seeker had the burden of persuading the court that it was protected expression and the showing of the film was prohibited until fully adjudicated, of which there was no guarantee of speed. The process did not involve a Court unless the applicant chose to pursue one themselves, and even then, risked a long process during which he could not show the film. The Court determined that the weight of proof should be on the censor, and that a prompt judicial determination in an adversarial proceeding was necessary.
 Cox v. New Hampshire (1941)


City of Lakewood v. Plain Dealer Publishing Co. (1988)


Freedman v. Maryland (1965)

Political Speech

Introduction Important Cases
As Justice Black stated in Mills v. State of Alabama, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Political speech includes discussions of candidates, the form of government, how government should be run, and any other discussion of the political process. These forms of speech are afforded the strongest protection, and usually any restrictions on them are judged by a strict scrutiny standard.Strict scrutiny was applied to just such a restriction in Brown v. Hartlage. The Court held that the voiding of an election due to a candidate’s offering of an idea was unconstitutional. A state corruption law prevented candidates from offering benefits to voters in exchange for votes – in this case, the candidate had promised to work for a lower salary if elected, and the election would be voided if he was found to have violated the statute. The Court determined that any restriction on the offering of ideas by a candidate to the electorate would need to be justified by a compelling state interest and could not unnecessarily infringe protected speech, and that voiding the election over this kind of campaign promise did not meet these standards.It is very difficult for a law limiting pure political speech to meet strict scrutiny, but there are rare moments when it does. In the 1992 decision in Burson v. Freeman, the Court upheld a law prohibiting solicitation of votes or distributing campaign materials within 100 ft of a polling place. The Court held that historically, some restriction on campaigning directly in or around polling places was necessary to protect the right to vote. When balancing the compelling state interest of protecting the right to vote with the right to free expression, the Court found this compromise to be constitutional. Mills v. State of Alabama (1966)


Brown v. Hartlage (1982)


Burson v. Freeman (1992)

Money as Political Speech Important Cases
Although pure political speech has been reserved high protection, the use of money in elections as a form of political speech has proven to be quite controversial. Spending and raising money is technically symbolic speech, which as discussed elsewhere, usually is more susceptible to regulation. Additionally, there are serious concerns about the specific, unique ways that money can influence politics and elections, which leads many people to think it should be specifically restricted and regulated.The classic Supreme Court decision on this issue is the 1976 case Buckley v. Valeo, which controlled the law on this topic for decades. The law at issue in the case is the 1974 Amendments to the Federal Election Campaign Act, which had been enacted after the Watergate investigations revealed serious campaign finance misdeeds in the 1972 presidential elections. The 1974 Amendments limited contributions, limited personal expenditures, created disclosure requirements, and created public funding for presidential elections.The Court began the opinion by determining that unlike other symbolic speech, which would normally be analyzed through the O’Brien test, the giving or spending of money can be either speech alone, conduct, or both. This is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” Therefore, the Amendments would be analyzed under strict scrutiny as restrictions on political speech.Under this analysis, the Court upheld the restrictions on contributions. Unlimited monetary contributions can cause corruption or the appearance of it, such as a “quid pro qou” deal where a candidate does a favor in exchange for a contribution. The Court felt that the government preventing this was essential to a functioning democracy. Limiting a contribution still allows someone to make a statement or message with their allowed contribution, so speech was not overly restricted. Similarly, the Court upheld financial disclosure requirements, using the same anti-corruption rationale.Limits on expenditures, however, were struck down as unconstitutional. The Court determined that limiting independent expenditures did not have the same anti-corruption impact – there being less danger of a quid pro quo deal if the individual isn’t directly contributing. Additionally, the Court rejected the argument that these limits were necessary to make candidates equal, stating the idea of restricting some speech to enhance the speech of others was “wholly foreign to the First Amendment.” Following a similar line of reasoning, the Court struck down total limits a candidate could spend on themselves, stating that it was the role of the individual – not the government – to determine how much one could spend to promote their own views.The last portion of the decision upheld the public financing of elections because it did not restrict speech. By allowing for public financing of candidates who met the requirements, speech could be expanded to a broader pool of candidates and electors.Cases involving campaign financing after Buckley focused on new loopholes or specific issues that had cropped up following that decision. The 1990 case Austin v. Michigan Chamber of Commerce dealt with the increase in independent expenditures that followed the Buckley decision. Corporations and unions were raising money to independently expend in supporting or opposing candidates in elections. Michigan passed a law banning corporations from spending on elections from their treasuries and the state was sued by the Michigan Chamber of Commerce. The Court upheld the law as constitutional, finding that corporate structure can allow for immense concentration of wealth that can influence elections without reflecting what the actual public wants. The Michigan law allowed for corporations to make a separate account from which they could solicit for funds, which the Court determined would more accurately reflect the public’s view and serve the state’s need to maintain the integrity of elections.


Congress attempted to close post-Buckley loopholes regarding “soft money” by passing the Bipartisan Campaign Finance Reform Act of 2002. Soft money are funds that are not covered by limits on contributions to candidates or committees. Corporations and unions which could not directly donate to a campaign would raise this soft money in large amounts and then donate it to the political party to spend instead. BCFRA prevented this soft money from being used by national political parties or state political parties, restrict ads that were paid for by unions and corporations that supported a candidate, make coordinated between elected officials and unions or corporations be considered contributions, expand the reporting requirements. In response to passing this law, they were sued. The law was challenged, and the case made it up to the Supreme Court as McConnell v. Federal Election Commission.

The Court upheld the vast majority of the law, affirming Buckley and the important interest of preventing corruption and the appearance of corruption rationale. This rationale was supplemented with the Court’s determination that many of the 2002 amendments were necessary to prevent the circumvention of the rules affirmed in Buckley.


Despite the substantial case law mostly upholding Congress’s campaign finance reform efforts, recent trends in the current Court have moved in the opposite direction – overruling a significant number of cases and causing significant controversy. The decision which prompted this major shift is Citizens United v. Federal Election Committee.


Citizens United is a conservative non-profit political action group. During the 2008 election, Citizens United created a film attacking Hillary Clinton, titled “Hillary: The Movie.” The group wanted to show the movie in theatres and through on-demand video services, but the federal government blocked it. The DC District Court held that showing the video violated a section of the BCFRA, the law which had been upheld in McConnell. Specifically, by playing television ads for their film, Citizens was in violation of one section of that law prohibited use of a corporation or union’s general treasury to fund “electioneering communication” within 30 days of a primary or 60 days of a general election.


First the Court overruled Austin, now holding that it was a violation of free speech to discriminate against a speaker simply because that speaker was a corporation. The Court discussed that the main rationale behind Austin was “anti-distortional” – to equalize speech between the public and the wealthy corporations. However, this kind of equalizing rationale had been ruled unconstitutional in Buckley. Additionally, corporations reflected the association of people, so this infringed on the First Amendment right to associate as well.


McDonnell was also partially overruled. The Court found no state interest to justify limiting independent expenditures by corporations. Following a similar line of reasoning to the Buckley case, the Court held that independent expenditures did not create or give the appearance of corruption. With Austin also overruled, there was no reason to specifically limit independent expenditures by corporations either. Without any state interest left remaining, the ban was struck down as unconstitutional.


The Court did uphold one portion as constitutional – the disclosure requirements. Disclosure can be a burden on speech, and the Court analyzed it under a standard which required a substantial relation between the restriction (disclosure) and the significant government interest. Since disclosures do not limit expenditure or contributions and do not prevent speech and also serve the significant interest of keeping the electorate informed, the Court found this provision to be constitutionally acceptable.


This trend towards deregulating finance most recently continued in the 2014 decision McCutcheon v. Federal Elections Commission. This time, aggregate contribution limits were being challenged. Aside from base limits to how much money a person can donate to a candidate, there were also limits to the total amount of money a donor could give to all candidates in total. Several prospective donors challenged this, claiming it in infringed on their First Amendment rights. The plurality held that the only permissible regulation of speech in regards to elections and campaign finance were those which served the compelling government interest in stopping “quid pro qou corruption.” After analyzing the statute, the Court determined that limiting the totals did not aid in this interest and also infringed too heavily on speech, making it unconstitutional. The plurality reasoned that since Congress established a max amount that can be given to a single candidate, then anything within that limit posed no threat of corruption. Without a limit to the total donations, each candidate can still only receive the base maximum allowed. Restricting the total would only limit the number of candidates a person could donate too – restricting their speech and political association – yet would have no effect on the base limit or quid pro quo corruption.


The dissent, written by the liberals of the court, argued for a wider view of corruption – that focusing on quid pro quo corruption was far too narrow. Removing the aggregate limit allows single donors to donate vast amounts of money to a political party, regardless of individual candidate limits. Combined with the earlier Citizens United decision, the dissenters said this decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

 Buckley v. Valeo (1976)Austin v. Michigan Chamber of Commerce (1990)


McConnell v. Federal Elections Commission (2003)


Citizens United v. Federal Election Commission (2010)


McCutcheon v. FEC (2014)

Forum

Where a person can express themselves, the forum for their speech, is a critical First Amendment issue. Depending on the location and the ownership of the property, the amount of control the government is allowed to have will vary.In very early Supreme Court cases, the right to speak on government property was not protected at all. Davis v. Commonwealth of Massachusetts featured the Supreme Court upholding a Boston law prohibiting speeches on public property unless done under a permit from the mayor. The Court compared the government to a private property owner, controlling what can happen on its land and offering no First Amendment protection.Modern cases, on the other hand, have recognized some First Amendment protection. Two important cases in 1939 first helped establish this protection: Hague v. CIO and Schneider v. State of New Jersey. In Hague, the Court found a statute prohibiting all public meetings without a permit to be unconstitutional because streets and parks have, throughout history, been used by the public to meet and communicate ideas. Schneider featured an ordinance banning distribution of leaflets on public property, for the stated purpose of preventing litter and maintaining the appearance of the city. The Court held this ordinance was unconstitutional because the potential burden of cleaning up litter did not outweigh the rights of people to give and receive literature. Additionally, the Court rejected the government’s argument that people could simply speak somewhere else. The opinion described streets as “the natural and proper place for the dissemination of information and opinion” and refused to limit this simply because it could also be done somewhere else. This isn’t the case for all property however. Private property and government property are treated differently. There are even different types of government property with differing levels of free speech protection. The three different types of government property were laid out in the 1983 case Perry Education Association v. Perry Local Education Association: public forums, limited public forums, and nonpublic forums. Public forums, such as streets and parks, have a long tradition of being used for speech and enjoy the highest protection. Limited public forums are voluntarily kept open for speech but may be closed – however, if they are open, the same rules governing public forums must be applied. Nonpublic forums give the government the strongest control, allowing them to be reserved for specific non-speech uses as long as it is done for that reason rather than to suppress speech.
Public Forum Important Cases
The Government is constitutionally obligated to leave public forums open for speech. These areas, such as sidewalks and parks, have a long-standing tradition of being places to communicate, gather, and exchange ideas.As with any regulation of speech, statutes controlling or prohibiting speech in public forums must be content-neutral. The government cannot limit what can be said in a forum based on the viewpoint being expressed or the subject matter being discussed, unless it meets strict scrutiny – the highest standard of protection of speech.In Police Department of Chicago v. Mosley, the Court held a Chicago ordinance that prohibited all picketing except that relating to labor disputes within 150 ft. of a school during school hours was unconstitutional. Mosley peacefully picketed the school during school hours, but on the issue of racial discrimination, and was warned after the passing of the ordinance that he would be arrested if he continued. In response he sued, claiming that the ordinance violated the First Amendment. The Supreme Court ruled the ordinance unconstitutional on Equal Protection grounds because it distinguished between different types of picketing by content. Despite being ruled on Equal Protection grounds, the case was still important for reinforcing the necessity for content neutrality, or in the words of the majority opinion, “the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”


Any restriction or regulation on speech that is content neutral does not have to meet strict scrutiny, but still must be considered a reasonable time, place, or manner restriction. These restrictions must be justified unrelated to the content of the speech, must serve a significant government interest, be narrowly tailored to serve that interest, and must leave open ample alternative channels for communicating that information.


A Minnesota State Fair regulation which banned distributing literature except for at booths was held to be a constitutional time, place, or manner restriction in Heffron v. International Society for Krishna Consciousness. The Court reasoned that the restriction was content neutral because the booths were open to anyone “first come first served”. Limiting literature hand-outs to booths fulfilled the significant government interest of keeping pedestrian traffic orderly within the fair ground. Lastly, the Court explained that the defendants had multiple other ways to communicate with their audience both on and off the fair grounds.


The modern test for time, place, and manner restrictions comes from the case Ward v. Rock Against Racism. The 1989 case revolved around a bandshell in New York City’s Central Park. After receiving complaints about noise volume levels, as well as having experienced unruly audiences disappointed with sound quality, the City required that all performances would have use the City’s own sound system and audio technician. A sponsor who hosted yearly concerts at the band shell sued, claiming this regulation violated the First Amendment. The Court of Appeals held that the regulation was unconstitutional because there were less restrictive ways to control the volume levels that did not include interfering with the sponsors sound mixing.


However, the Supreme Court overruled this and declared the regulation constitutional. First, the Court determined the bandshell to be a public forum because it was open to all. Next, the Court proceeded with a time, place, and manner evaluation of the regulation. Since the regulation applied to all performances at the bandshell regardless of content and was aimed at fixing sound issues and crowd control, it was justified without considering the content. The regulation was “narrowly tailored to serve a significant government interest” because the City had a significant interest in controlling the sound to limit complaints and stop unruly crowds, and was narrowly tailored because other solutions would be “less effective” while this regulation was still “not overly broad.” This second part of the test specifically overruled the lower court – the government does not have to prove a regulation is the “least restrictive” solution, the government regulation simply cannot be overly broad. The plaintiff must prove this overbreadth rather than the government having to prove it is the least restrictive. Lastly, the court found that sufficient alternative channels existed because the concerts were not actually being prohibited in any way- only the sound levels were affected, and in some circumstances, may be even louder under the government solution (fixing low volume issues that caused angry crowds).


Regulations of public forums has recently taken the spotlight due to high profile cases dealing with restrictions of protestors outside of abortion clinics. In the 1997 case Schenck v. Pro-Choice Network Of Western New York, the Court gave a New York District Court’s injunction restricting protesting around abortion clinics a mixed ruling. The Court first determined that the restrictions were content neutral – the injunction wasn’t based on the speech of the protestors, but on prior illegal actions (blockading the clinic and violent harassment). A permanent “buffer zone” which protestors could not enter was held as Constitutional, and justified by the state’s interest in the operation of its facilities, controlling traffic, and protecting the safety of woman. However, the “floating” buffer zone of 15 ft. around anyone entering the clinic was held to be unconstitutionally broad. The floating buffer was wide enough that in the case of certain clinics, protestors could be forced into the street due to limited sidewalk size. Additionally, the uncertainty of how to comply with the law (such as when a protestor must keep moving to stay far enough apart from the buffer zone) may lead to substantially more restriction than is allowed.


The Court next addressed the issue in 2000 with Hill v. Colorado. The challenged law in question was a state statute that prohibited anyone within 100 ft. of an abortion clinic from “knowingly” approaching within 8 ft. of a person entering or leaving the clinic “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” The Court decided that the statute was content neutral – no one could approach someone using the clinic for those purposes, regardless of the subject matter (“the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries”). Distinguishing between other communication and “oral protest, education, or counseling” was not equivalent to blocking a specific subject matter or view. Unlike Schenck, the whole statute, including the 8 ft. mobile buffer zone, was held to be constitutional. This time, the narrowly tailored prong of the time, place, and manner test was met by the statute. Colorado’s 8 ft. limit still allowed normal conversation, and a protestor was only in violation if they “knowingly approached” (therefore not forcing the protester to constantly move back if they were approached, like in Schenck).


The ruling in Hill was controversial, garnering fierce dissents from the conservative Justices. McCullen v. Coakely, the most recent Supreme Court case on the topic, has seen the court move in the opposite direction of Hill. A Massachusetts statute making it a crime to enter or remain within 35 ft. of an abortion clinic (if you were not entering or exiting the facility) was held to be unconstitutional. Again, the second the prong of the time, place, and manner test was at issue. The Court held that the statute was not narrowly drawn and substantially burdened plaintiff’s speech more than was necessary to achieve the State’s goals. Importantly, the plaintiffs in this case were “counselors” rather than protesters – they claimed that their goal was to discuss other options with women seeking abortions, rather than simply protest. They claimed they could not do this with the buffer, whereas protesters could still continue loudly protesting outside the clinic. Additionally, the Court found that the state had enough laws in place already to deal with protesters blocking entrances aside from this statute, making it an unnecessary burden. This decision is has caused both speculation and controversy, because it did not go as far as to overrule Hill, thereby leaving many questions unanswered.

  Police Dept. of Chicago v. Mosley (1972)Heffron v. International Society for Krishna Consciousness (1981)


Ward v. Rock Against Racism (1989)


Schenck v. Pro-Choice Network Of Western New York (1996)


Hill V. Colorado (2000)


McCullen v. Coakley (2013)


 

Limited Public Forums Important Cases
Limited public forums, also known as designed forums, are places that the Government willingly leaves open to speech yet has the ability to close to all speech if it so chooses. However, when open, many of the same rules that apply to public forums apply to these as well.Public schools and universities are classic examples of limited public forums. Schools are allowed to close their facilities to public use. However, as soon as one religious or student group is permitted to use the school for use, all must be equally allowed. In Lamb’s Chapel v. Center Moriches Union Free School District, the Court held that a school district’s refusal to let a church use its premises to show a film of child rearing was unconstitutional. The school district had rules allowing for use of its rooms for civic and recreational uses but prohibited use by religious groups. The Court concluded that by opening up the property for the speech of some groups, the school had become a limited public forum – any restriction on its use must be viewpoint neutral. Non-religious child rearing videos weren’t banned – only religious ones could not be shown, specifically because they were religious, making the rule unconstitutional.  Lamb’s chapel v. Center Moriches Union Free School Dist. (1993)
Nonpublic Forum Important Cases
Nonpublic forums may be closed to speech, and speech may be restricted as long as the regulation is reasonable and viewpoint neutral. Many different non-public forums exist.Government can restrict speech around prisons and jails. Protesters at a demonstration on a jails property were arrested for trespassing and the Court upheld their arrest in Adderly v. State of Florida, emphasizing both the security concerns of the jail as well as the government’s right to manage its property.Military bases were similarly found to be nonpublic forums in 1976 with Greer v. Spock. The Court held that bases were nonpublic, and that “the business… of Fort Dix is training soldiers, not to provide a public forum.” Additionally, the Court mentioned that unlike sidewalks and town squares, there is no tradition for political protest inside military bases.

Even sidewalks, traditionally a classic example of a public forum, can be regulated depending on the circumstances. In Kokinda v. USA, the Court upheld a speech restriction on a sidewalk because it was located directly next to a post office. Evaluating the sidewalk’s location, the Court decided that the connecting sidewalk between the post office and its parking lot was different than a sidewalk through the middle of a city or town, and therefore had no tradition of being a public forum. Because this sidewalk was used exclusively for postal business, it was a non-public forum which the government could restrict or close as long as it the restriction was reasonable and not related to the viewpoint being expressed.

Discussion of history and traditional use, or the lack thereof, factored heavily into the decision by the Court to hold that airports were non-public forums. International Society for Krishna Consciousness, Inc. v. Lee involved a religious group being banned from soliciting or handing out leaflets in an airport. The majority opinion held that airports were nonpublic forums, emphasizing how new air travel is compared to classic public forums like town squares, as well as the non-speech related, commercial nature of airports. The Court determined that a ban on solicitation was reasonable for a non-public forum, due to the threat of fraud to travelers in airports. However, the ban on distribution of leaflets was unreasonable and therefore unconstitutional.

Election debates have also been held to be nonpublic forums. In a state congressional race, a third party candidate sued after being denied access to a televised debate. The Court ruled against the candidate in Arkansas Education Television Commission v. Forbes, holding that a state-owned televised debate is a nonpublic forum. First, the Court declined to extend the forum doctrine to broadcasting, because that would infringe on the First Amendment rights of broadcasters. Next, the Court determined that the government had not created a limited public forum by having the debate – a limited public forum would have been created with the intent to provide general access, while the debate had only “selective access” to certain candidates. The Court concluded that the restriction was reasonable and not viewpoint discrimination, because the candidates lack of support was the criteria rather than his views. The dissent by Justice Stephens, joined by Justices Souter and Ginsberg, took particular issue with this because an unpopular view will always be the one with less support (yet should have the same protection).
  Adderly v. Florida (1966)Greer v. Spock (1976)US v. Kokinda (1990)


International Society for Krishna Consciousness, Inc. v. Lee (1992)


Arkansas Educational Television Commission v. Ralph P. Forbes (1998)

Private Property Important Cases
Due to the government action requirement there is no constitutional right to use private property owned by others for speech. However, there has been several cases regarding free speech in privately owned shopping malls. The Court has fluctuated over time in how it deals with these cases.In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, a 1968 opinion regarding laborers picketing a business within a private shopping mall, the Court held that the privately owned shopping mall could not exclude the striking laborers within it. The shopping mall was considered the “functional equivalent” to a business district, much like an earlier case Marsh v. Alabama, where the Court had prevented a company-owned town from restricting speech within it.However, the Court reversed directions from this opinion in Lloyd Corp v. Tanner. This time, the demonstrators were protesting the Vietnam War and the Court allowed the shopping center to ban them. The Court attempted to distinguish their opinion from Logan Valley, pointing out that the protest in that case had been related to the shopping mall, whilst this did not.


By focusing on the subject matter of the protest, the Court had basically created a content-based distinction. Because of this, Tanner was overruled in 1976 Hudgens v. National Labor Board Relations. The reasoning in Logan Valley was also critiqued. Comparing the company town from Marsh to the shopping center defendant in Hudgens, the Court found them very different – the private company in Marsh having actually assumed control as a governing body for the town compared to Hudgen’s simply operating a mall. The Court held that there was no First Amendment right to use a privately owned shopping mall for speech.


Four years later, the Court’s opinion shifted again to what is now the current stance on the topic. The decision in PruneYard Shopping Center v. Robins revolved around a Californian constitutional amendment which allowed for the use of private shopping malls for speech. Distinguishing this case from their opinion in Hudgens, the Court noted that State constitutions can expand rights, and that no such provision was at issue in other prior upheld the provision, leaving room for protected expression in privately owned shopping malls via state law.

 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (1968)Lloyd Corp., Ltd. v. Tanner (1972)Hudgens v. National Labor Relations Board (1976)Pruneyard Shopping Center v. Robins (1980)
School Important Cases
Although students have freedom of speech within school, there are still significant limits. When determining the degree of expression allowed for students, the Court has frequently had to balance two opposing notions: teaching students how to express themselves in an open democratic society, and letting school administrators effectively manage their schools. The difficulty in successfully doing this clearly shows in the wide variety of ways the Court has tried to do so since first considering issue.One of the earliest and most defining Supreme Court decisions regarding freedom of expression in schools is the 1969 case Tinker v. Des Moines Independent Community School. Two high school and one junior high school students wore black armbands to protest the Vietnam War and were suspended from school after they refused to remove them. They sued, and the Supreme Court ruled in their favor. The oft-quoted majority opinion written by Judge Fortas stated that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.” Armbands, although symbolic, were given higher protection closer to “pure speech” since they were part of a silent, passive, sign of expression. The opinion emphasized that the expression was non-disruptive, and that because of that, the school had no constitutional reason to restrict it.Although Tinker established student freedom of speech via a test that focused solely on disruption, more recent cases have seen different analyses school officials. The 1986 case Bethel School District No. 43 v. Fraser, a student nominated a classmate for student government by giving a sexual-innuendo filled speech. In response, his school suspended him and prevented him from speaking at graduation. The Court upheld this as constitutional, because indecent or vulgar language was “wholly inconsistent with the ‘fundamental values’ of public school education

.Punishment and restriction of indecent or disruptive speech was again upheld in the 2007 decision for Morse v. Frederick. At a televised school sponsored event off of school grounds, a high school student unfurled a banner saying “BONG HITS 4 JESUS.” His banner was confiscated and he was suspended. The Court upheld the actions of the school because they determined that restriction of messages promoting drug use at school events to be a reasonable restriction on the First Amendment. The opinion was controversial and divided, written by a plurality, with 3 justices dissenting, and three others writing concurrences (one of which dissented in part). The dissent described the plurality’s opinion as doing “great violence to the First Amendment” and warned against making special rules regarding view points on drugs or alcohol.

Schools have substantially more control over speech when they are promoting it or it involves school resources. In Hazelwood School District v. Kuhlmeier, members of a student newspaper sued their principal after he chose to remove two stories from the school-run student newspaper: an anonymous interview with three pregnant students at the school, and an article on student’s affected by divorce. The principal had concerns about potentially exposing the identities of the pregnant students, exposing younger students to inappropriate sexual material, and providing a one-sided view of the divorcing. Holding that the school paper was a nonpublic forum which the principal only had to regulate in a reasonable matter, the Court upheld the principal’s decision. The school newspaper, which was written through the school’s journalism class, was determined by the Court to be within the category of curricular decisions controlled by the school. These included school sponsored publications, plays, and other things someone “reasonably” could believe was sponsored by the school.
  Tinker v. Des Moines Sch. Dist. (1969)Bethel School District No. 43 v. Fraser (1986)Morse v. Frederick (2007)Hazelwood School District v. Kuhlmeier (1988)

Less Protected Speech

Commercial Speech Important Cases
In its earliest opinions on the topic of commercial speech, the Supreme Court ruled it completely outside of First Amendment protection. The holding in Valentine v. Chrestensen, a 1942 case involving a conviction of a man for distributing an advertisement in violation of a local ordinance banning distributing advertisements, was that this ordinance was constitutional since the Constitution imposed no restraint on government in regard to “purely commercial” advertising.Commercial speech remained unprotected until the 1975 case Bigelow v. Virginia. A law banning the encouragement of procuring abortions was found unconstitutional because it restricted the First Amendment rights of abortion advertisers in newspapers. The opinion stated that speech was not stripped of all First Amendment protection because it appears as advertisement, and that the lower court had erred in finding that advertising had no First Amendment protection.

The reversal of course by the Court continued in a case decided shortly after Bigelow, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. A law that did not allow pharmacists to advertise the cost of prescription drugs was held to be unconstitutional because speech that “proposes a commercial transaction” is protected expression. Commercial speech that was false or misleading could be prohibited, the court reasoned, but otherwise individuals and society have a strong interest in the free flow of lawful commercial information as another way to have an informed citizenry. The Court noted other forms of speech where the speaker had economic incentives, like negotiations in a labor dispute, which were still protected. The statute was held to be unconstitutional because it discriminated based on content (prices of drugs) without any sufficiently compelling state interest.

However, the question of when commercial speech COULD be regulated and the limits to the extent of commercial speech’s protection still remained. The Court answered this in the influential 1980 case Central Hudson Gas v. Public Service Commission. To determine whether or not a state law prohibiting a utility from advertising was legal, the Court formulated a four part test that creates an “intermediate scrutiny” standard. The Court first asks if the speech concerns lawful activity and is not misleading. If it does, the Court then asks if the government interest being argued is substantial. If the interest is not substantial, the inquiry ends and the regulation is unconstitutional. However, if the speech is lawful and not misleading but the government interest is also substantial, the Court then determines if the regulation is directly aiding the government’s substantial interest. Lastly, the Court must decide whether or not the regulation is more than is necessary to advance that government interest. Additionally, the burden of proof that a regulation is constitutional is on the government restricting it, rather than the speaker having to prove it unconstitutional.
 Valentine v. Chrestensen (1942)


Bigelow v. Virginia (1975)


Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc (1976)


Central Hudson Gas v. Public Service Commission (1980)

Indecent and Profane Speech Important Cases
Although obscenity is not protected under the First Amendment, some sexual speech is still protected. These forms include adult book stores and movie theatres, nude dancing, and profane or indecent speech. However, these forms are usually considered less protected than standard speech under the First Amendment.The regulation of sexual speech through prohibiting adult movie theaters began with the case Young v. American Mini-Theatres, Inc in 1976. The Court upheld an ordinance limiting the number and location of adult theaters. The opinion stated adult movie theatres had First Amendment protection as speech, yet allowed them to be more susceptible to government regulation due to the “low value” of the speech conveyed.This trend continued in the 1986 case City of Renton v. Playtime Theatres, Inc., where the Court upheld another city ordinance which effectively banned adult theatres entirely in a city. This time the Court emphasized the constitutionality of the ordinance because the ban was focused more on preventing the secondary effects of the theatres – the crime and decreasing property value associated with the presence of adult movie theatres.Nude dancing has been met with similar regulation and rationale by the Court. The Court initially upheld ordinances restricting nude dancing under the state authority granted by the Twenty First Amendment. The opinions in California v. LaRue and City of Newport v. Iacobucci used this reasoning since the establishments involved both had liquor licenses. The Court found that the Twenty First Amendment allowed for more enhanced control over public health, welfare, and morals, and since nude dancing was a less protected form of speech, this control outweighed its protections.

Barnes v. Glen Theatre in 1991 featured the Court going even farther, allowing a ban on nudity in dancing because it furthered the governmental interest in “protecting societal order and morality.” This decision was re-affirmed in Erie v. PAP’s A.M, though under slightly different reasoning. Writing for the plurality, Justice O’Connor upheld an ordinance banning nude dancing because the purpose of the ban focused on removing secondary effects like crime rather than the nude dancing itself. Additionally, the Court held that the ban was permissible even without local evidence of nude dancing cause crime, because the town was allowed to rely on the experiences of other areas where the connection had been shown. This portion of the opinion gave local government extensive power to regulate nude dancing by lessening their burden in proving the need for their nude dancing regulations.

Profane or sexually explicit language has been given First Amendment protection by the courts, yet there are notable exceptions, usually determined by the context of how the language is being transmitted and where the audience is. The 1971 opinion in Cohen v. California featured the Court overturning a conviction of disturbing the peace for a man who wore a jacket in a courtroom that had “Fuck the draft” written on it. Justice Harlan, writing for the majority, rejected the arguments made by the government that certain words could be banned for the good of the public and that the ban was justified because the public was a “captive audience”. The Court noted that cursing was a form of expression and that no other alternative may have as strongly communicated the political message of the speaker, and that if the State could ban curse words without any compelling reason their power to restrict speech would seem “inherently boundless.” Harlan also found that the public could not be considered a “captive audience” if their privacy rights weren’t being invaded – the government can regulate speech that may be invading the privacy of a person’s home, but cannot censor speech between people when out in public in order to “protect” them from certain messages.

Exceptions to the First Amendment protection of profane speech have been carved out depending on the context and medium of the speech. Profanity can be regulated in public schools, as demonstrated in Bethel School District No. 403 v. Fraser. The punishment of a student for giving a speech filled with sexual innuendo was upheld as constitutional, because that speech was “wholly inconsistent with the ‘fundamental value’ of public school education.”

Profane speech can be prohibited when broadcast over television and radio as well. In the famous “Seven Dirty Words” case FCC v. Pacifica Foundation, the comedian George Carlin’s monologue featuring repeated swear words was broadcast over the radio uncensored. The Supreme Court held that the Federal Communications Commission could prohibit and punish indecent language broadcast via television or the radio. The opinion followed a rationale related to the “captive audience” argument discussed in Cohen: broadcast media has a unique reach directly into the home, where a person has their greatest privacy rights, and therefore their privacy rights trump the speech rights of an outsider. Particular emphasis was placed on the fact that children are particularly vulnerable to broadcast media, and thus should not have to be exposed to profane language in their own home.

The Court has been much more reluctant to place restrictions on indecent speech over phones, the internet, and cable television, however. Often the reasoning in opinions dealing with these mediums is that there is less of a “captive audience” issue, and that laws restricting indecent speech are too restrictive or not narrowly tailored enough.

In Sable Communications v. FCC, a federal statute banning obscene or indecent telephone communications, aimed to stop phone-sex services, was held to be unconstitutional in regards to its ban of indecent speech. The Court emphasized the lack of a captive audience – the calls were being placed to the services rather than broadcast. Additionally, there was no evidence offered by the government that this law was necessary as the least restrictive way to protect minors.

This least restrictive means analysis pervaded two opinions of the court regarding indecent material on cable television as well. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, decided in 1996, had a divided plurality opinion of the Court on whether three provisions of the Cable Television Consumer Protection and competition Act of 1992 were constitutional. The Court upheld the provision allowing cable operators to prohibit the broadcasting programming that depicts certain sexual content in a “patently offensive manner.” The remaining two provisions: one requiring that this material if allowed must be segregated to a specific channel available only on request; the other banning this material from “public, educational, or governmental channels”, were both struck down. The Court upheld the first provision on the First Amendment rights of the cable operator, allowing them to choose what to broadcast or not. The opinion also emphasized that the provision was actually even less strict than the one upheld in Pacifica – it did not require the prohibition, instead allowing the cable operator to choose. The other two provisions in comparison were mandatory, and the goal behind each – protecting minors and unconsenting adults from having to see indecent material – could have been achieved through the less restrictive means of blocking individually. Additionally the public, educational, and governmental channels were already heavily regulated, and the Court found no compelling need to allow cable operators the ability to censor material on these channels as well.

The problem with Denver was that the opinion involved significant disagreement between the justices over the proper scrutiny standards to apply to cable television, as well as the reasons for allowing or prohibiting content. United States v. Playboy Entertainment Group, Inc. helped clarify the situation in 2000. The decision revolved around a provision of the Cable Act which required cable operators to fully scramble or block sexual programming in order to prevent “signal bleed”, where people receive images of cable channels they are not subscribed to. The Court applied strict scrutiny because by regulating only sexually explicit content, the government was engaging in content-based discrimination. Justice Kennedy, writing for the majority, stated that this meant the statute must be narrowly tailored, and that if “a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” The Court held that individual blocking of such channels by subscribers is less restrictive than blanket banning by cable operators, and therefore the ban was unconstitutionally restrictive. This opinion is significant because in it, the Court officially uses a strict scrutiny analysis for sexually explicit speech – something it had declined to do in the past.

The first consideration by the Court of indecent material being transmitted over the internet was in the 1997 case Reno v. American Civil Liberties Union. The Communications Decency Act of 1996 made it a criminal offense to transmit obscene or indecent material to minors, or the transmission or displaying of such materials in a way that is available to minors. The Court held the law unconstitutional. Distinguishing this case from Pacifica, the Court noted that the Communications Decency Act was broader and more severe than the regulations under Pacifica – the former having criminal penalties and being in effect at all times. Simultaneously the Court rejected the statute for being too vague, running the real risk of criminalizing content that was not pornographic, such as educational, non-profit material about sexual topics.

In response to the Supreme Court’s decision in Reno, Congress passed the Child Online Protection Act, which required that websites restrict access of material that applies to a minor’s “prurient interest” through various age verification requirements, like specific verifying services or valid credit cards. In a 5-4 decision in the 2002 case Ashcroft v. American Civil Liberties Union, the Court upheld a preliminary injunction of the law, finding a substantial likelihood that the law would be unconstitutional. The opinion involved a strict-scrutiny analysis, because the law required a content-based restriction. Following a similar logic to the earlier cable broadcast decisions, the Court noted that filtering software on the users end represented a less restrictive means to protect minors compared to the law’s methods, and more likely to be successful since the law would only be able to control US-based websites to begin with.
 Young v. American Mini Theatres (1976)


City of Renton v. Playtime Theatres, Inc (1986)


California v. LaRu (1972)


City of Newport v. Iacobucci (1986)


Barnes v. Glen Theatre (1991)


Erie v. PAP’s AM (2000)


Cohen v. California (1971)


Bethel School District No. 43 v. Fraser (1986)


Federal Communications Commission v. Pacifica Foundation (1978)


Sable Communications v. FCC (1989)


Denver Area Ed. Telecommunications Consortium, Inc. v. FCC (1996)


US v. Playboy Entertainment Group (2000)


Reno v. American Civil Liberties Union (1997)


Ashcroft v. American Civil Liberties Union (2002)

Symbolic Speech Important Cases
Speech can be communicated through more than just words – messages are regularly exchanged between people through conduct and symbols. The Supreme Court has recognized this, yet developed standards and tests for this kind of expressive conduct separately from verbal and written speech. This is due to the unique nature of symbolic speech, where the conduct or action taken as a means of expression may have consequences aside from the listener receiving a message. The Court first has to determine whether or not the conduct is actually expressing a message. If they decide the conduct is expressive, the Court then must decide to what extent it can be regulated or prohibited by the government.


Although the Court had been recognizing symbolic speech for a long time, the most definitive test for determining whether or not conduct was expressive was not formulated until the 1974 case Spence v. Washington. Spence hung an upside-down American flag with a peace sign taped over it from his apartment’s window and was arrested and charged under a flag misuse statute. He stated that he hung the flag that way in response to the Kent state shootings as well as American invasion of Cambodia, because he wanted to show that he thought America should stand for peace. The Court reversed his conviction and found the statute to be unconstitutional after determining that Spence’s conduct was expressive, did not cause a breach of the peace or destroy property, and was within the protection of the first amendment. Two factors were discussed by the Court in determining that Spence’s conduct was considered speech – first, whether or not Spence intended a message to be communicated, and second, whether there was substantial likelihood that those receiving this message would understand it. Context is mentioned in the opinion as one way to tell whether others would be able to understand the message, and the Court felt that the timing of both Kent State and the invasion of Cambodia both made clear what Spence’s message was.


Just because conduct is expressive does not mean it necessarily has the same protection as other protected speech. Depending on the nature of the conduct, the state may be able to regulate or prohibit the speech incidentally by controlling the action. The test for determining for when this is allowed to happen first appeared in United States v. O’Brien. The 1968 case dealt with an individual who burned his draft registration card and was prosecuted under a federal law that made destruction of draft cards a crime. When speech and non-speech elements combine in conduct, the Court held that a compelling government interest could justify a statute regulating the expressive conduct, as long as the interest is unrelated to free expression and goes no farther than necessary to further that interest. Under this test, the Court upheld O’Brien’s conviction, determining that the ban was based on other justifications rather than preventing the message, such as the necessity of the cards for emergency military mobilization.


Flag burning has repeatedly come up before the Court as a controversial form of expressive conduct. Despite multiple attempts by the states and federal government to ban forms of flag desecration, the Court has consistently applied the O’Brien test to find those laws unconstitutional. After various narrow holdings such as the one in Spence (law was unconstitutional when applied expressive conduct, altering of a private flag, on private property, without causing breach of the peace) the Court definitely ruled that flag desecration was constitutionally protected conduct under Texas v. Johnson in 1989 and United States v. Eichman in 1990.


The statute in question in Texas v. Johnson made it illegal to damage a flag if done knowing it was likely to offend others. The Supreme Court found the flag burning to be expressive content protected under the First Amendment, and the statute to be unconstitutional. Justice Brennan pointed out that the statute by its very wording had to be aimed at the expression rather than the conduct, because it didn’t ban all flag burning – just that which would knowingly offend others. The Court re-iterated that “the government may not prohibit expression of an idea simply because if finds the idea itself offensive or disagreeable.”


In reaction to this ruling, Congress passed the Flag Protection Act of 1989, this time making it applicable to flag destruction in general, rather than to specific times when someone may be offended. However, the Court still found this ban to be unconstitutional. In United States v. Eichman, the Court held the statute suffered from the same flaw as the Texas Statute- aiming at stopping dissent or protest. This was due to the Government’s expressed interest in protecting the integrity of the flag as a symbol, which makes the intent of the statute the communicative message of flag burning rather than the physical act of damaging a flag.


Nude dancing has also been considered a form of expressive conduct, though it has often received significantly less protection than other expressive actions.

 Spence v. Washington (1974)


US v. O’Brien (1968)


Texas v. Johnson (1989)


United States v. Eichman (1990)


 

Speech of Public Employees Important Cases
Government employees have freedom of speech under the First Amendment, but only under particular circumstances and with a lesser degree of protection than other individuals. Deciding whether a government employee’s speech is protected involves the balancing of protecting that employee’s constitutional rights with the rights of the government as an employer to manage or fire its employees.

One of the first influential cases regarding public employee’s speech is Pickering v. Board of Education, decided in 1968. A public school teacher wrote a letter to a newspaper criticizing the fundraising conducted by his school, and was fired as a result. The Supreme Court held that the firing violated the First Amendment. The opinion stressed that public employees are permitted to comment on matters of “public concern”, even if they are critical of their superiors. The interests of the state in efficiently managing its work and employees is weighed against this matter of public concern. In Pickering’s case, the critical comments made in the newspaper dealt with a public concern – the potential misuse of school funding – and his criticisms did not interfere with his ability to perform as a teacher. Therefore his speech was protected, and the firing was unconstitutional.

The 1977 decision in Mt. Healthy City School District Board of Education v. Doyle further clarified the test. The Court ruled to uphold the firing of an untenured teacher because he would have otherwise been fired regardless of his protected speech, since he argued with other teachers and made obscene gestures at students. Before applying the Pickering test, the Court found that a public employee would first have the burden of proving that his conduct was constitutionally protected and that it was a substantial reason for the government action (firing). If they can show that, then the burden shifts to the government to show that by a preponderance of the evidence, it would have taken the same action without considering the protected speech.
 Pickering v. Board of Education (1968)Mt. Healthy City Sch. Dist. v. Doyle (1977)

Unprotected Speech

Incitement Important Cases
Incitement – speech that causes others to undertake the commission of illegal or harmful action – has a varied and highly evolved legal history in the United States. The government’s ability to restrict or punish such speech has expanded and tightened periodically over the past century depending on the political climate of the country. As one of the first major bodies of free speech law to develop, the evolution of this area has had profound effects on other aspects of the First Amendment.

The start of World War I coincided with the ‘Red Scare’, a period of time where communist and leftist groups were viewed with great suspicion as threats to the stability of the United States. Under both the 1917 Espionage act and the 1918 Sedition Act, which made it a crime to “interfere with the success of the US armed forces” or to “cause others to view the United States with contempt”, many prosecutions against people speaking out against the war and the draft occurred. Individuals appealing these decisions found an unsympathetic Supreme Court. In Schenck v. United States, the Court outlined a “clear and present danger” test that focused on the likelihood, imminence, and degree of harm caused by the speech. In the opinion, Justice Holmes famously stated that the First Amendment would not protect falsely shouting fire in a movie theatre, and compared that conduct to that of the defendants in Shenck – handing out leaflets which argued against the draft. The Court upheld the conviction, finding that the defendant’s actions during war time were unprotected and criminal.

Similar holdings were reached immediately after Schenck, using the same rationale. In Debs v. United States, Socialist Party leader Eugene Debs was sentenced to jail for violating the 1917 Act by speaking against the draft in a speech. The Court relied on a “bad tendency” test, where the speech can be restricted regardless of its actual effect – instead focusing on whether or not it had a tendency to cause a desired outcome. In this case, speaking against the draft was decided to have a tendency to incite mutiny, and was therefore constitutionally restricted under the act. In Frohwerk v. United States, the convictions of German language newspaper publishers for criticizing the war were upheld. Although there was no evidence that they hurt the war effort, there the Court discussed the possibility that there could have been a potential for it to do so.

Abrams v. United States was decided the same year as Schenck, Debs, and Frohwerk, yet featured an apparent change of heart of Justice Holmes (who had written the previous majority opinions). The Court upheld the convictions of Russian immigrants sharing leaflets opposing sending US troops to Eastern Europe after the Russian Revolution. Justice Holmes’ dissent attempted to differentiate the case from the previous three, arguing that the clear and present danger wasn’t met in Abrams. This focus on the clear and present danger doctrine would characterize Justice Holmes’ holdings in incitement cases afterwards.

During the 1920s and 30s, several states passed criminal syndicate laws which made it a crime to advocate the overthrow the US government through force. Prosecutions under these laws were primarily targeted at Communist Party and labor organizers. For this time period, the Court made extensive use of the reasonableness test rather than the “clear and present danger” standard it had utilized earlier. In Gitlow v. New York, the Court recognized for the first time that the First Amendment was applicable to the states through incorporation under the due process clause of the 14th amendment. However, the Court deferred to the state legislature and upheld the conviction of Gitlow for publishing a “Left Wing Manifesto” after adopting a reasonableness test that deferred to state legislature’s and gave presumptions of reasonableness in their favor.

The Court again upheld a conviction under a criminal syndicalism statute of a woman for attending a Communist Labor Party meeting in Whitney v. California. Deferring to the state legislature, the Court held that the states could restrict speech if the legislature found that the speech tended to incite crime or endanger the government. Despite also affirming the conviction, Justice Holmes joined in Justice Brandeis’s concurrence urging a return to the clear and present danger standard in an opinion that emphasized the necessity of imminent harm rather than tendency to incite.

The reasonableness test was relied upon until 1951, when the court decided Dennis v. United States. Decided amongst the intense paranoia and fear of communism brought on by McCarthyism, the Court upheld the convictions of several individuals under the Smith Act. The Smith Act which made it illegal to advocate overthrowing the US government or assassinating government officials. Defendants in the case had taught books written by Stalin, Marx and Engels, and Lenin. The plurality opinion claimed to be returning to using the clear and present danger test of Schenck, yet modified it to focus mostly on the harm: is the potential harm of the speech so great, after probability has been considered, to justify infringing on the freedom of speech? The plurality reasoned that the danger caused by advocating overthrowing the government was so strong that showing either imminence or probability of harm was unnecessary. This formulation of the test was in effect as equally restrictive on speech as the deference in Gitlow and Whitney. Justices Black and Douglas wrote strong dissents urging for a requirement of immediate injury to society in order to uphold the convictions, and arguing that the convictions were clearly just for speech rather than actual conspiracy to overthrow the government.

From the 1960s onward, the Court has adopted a much more speech-protective formula in regards to incitement cases. The true turning point in the court’s doctrine occurred in the 1969 case Brandenburg v. Ohio. Ohio had prosecuted a Klu Klux Klan leader under criminal syndicalism laws similar to those in Gitlow and Whitney for a speech given at a Klan rally urging revenge against African Americans, Jews, and the federal government. The Court reversed the conviction and struck down the statute, finding that a state cannot forbid the general advocacy of force or law violation unless the speech may cause imminent harm, a likelihood of producing illegal action, and an intent to cause imminent illegal action. The focus on imminence combined with intent created a much stricter test for determining when the government can prohibit or punish inciting speech, and this test has been the standard for the court since.
 Schenck v. US (1919)Debs v. US (1919)Frohwerk v. US (1919)


Abrams v. United States (1919)


Gitlow v. New York (1925)


Whitney v. California (1927)


Dennis v. United States (1951)


Brandberg v. Ohio (1969)

Fighting Words Important Cases
Words that are insulting and meant only to emotionally injure, or fighting words intended to incite an immediate violent response against the speaker, are not protected by the First Amendment. Chaplinsky v. New Hampshire, the 1942 case which first held this, involved a Jehovah’s Witness on a street corner denouncing and insulting listeners’ religions. This decision has never been overturned, yet the Court has never upheld a fighting words conviction since. Instead, the Court has continually narrowed the doctrine regarding fighting words to apply in fewer circumstances.In Cohen v. California, the Court held that unprotected fighting words must be directed to a specific person and likely to provoke a violent response. Cohen had worn a jacket cursing the draft in a courtroom, and the Court found that the message was directed at the draft and federal government in general and was unlikely that anyone present would take it as a direct personal injury.

Another method the Court has used to overturn fighting words convictions and statutes has been to find that they are overbroad. Gooding v. Wilson involved an antiwar protester convicted under a Georgia statute that prohibited abusive language tending to cause a breach of the peace. The Court held this to be overbroad because the lower courts failed to prohibit only fighting words. The rationale of Goading was thereafter used in multiple cases to overturn statutes, the Court making it evident that speech can still be protected if it is angry or profane and that laws prohibiting fighting words must be very narrowly tailored.

On the other hand, a fighting words statute that is too narrowly tailored runs the risk of being unconstitutional because it discriminates on the content of the speech. In R.A.V. v. City of St. Paul, a unanimous Court held that a Minnesota statute prohibiting burning crosses or swastikas on public or private property was unconstitutional because it used a content-based distinction. The opinion written by Justice Scalia further elaborated that while the government can ban or restrict unprotected speech, it must meet a strict scrutiny analysis in order to ban certain kinds of content within each category of unprotected speech. Scalia mentions two exceptions to this: if it directly advances the reason why the category of speech is unprotected, or if it is directed at remedying the secondary effects of speech and is therefore justified without a focus on the content.
 Chaplinsky v. New Hampshire (1942)


Cohen v. California (1971)


Gooding v. Wilson (1972)


R.A.V. v. City of St. Paul (1992)

True Threats Important Cases
True threats are statements made by a speaker communicating a serious intent to commit an unlawful act of violence against a particular person or group. The Supreme Court has consistently held that this conduct is outside the First Amendment protection for speech, beginning with their opinion in Watts v. US.

Watts was an antiwar protester, who during a rally stated that if drafted, the first person he would put his rifle sights on was the President. The statute he was convicted under made it illegal to make true threats against the life of the President. The Court held that statute that he was convicted under to be constitutional on its face – the State had an extremely compelling interest in making sure that the President was spared from harm or violence. However, the Court ruled that Watt’s conduct did not rise to the level of a true threat under the statute. Given the context of Watt’s statement, the Court found the statement to be political hyperbole and protected speech – his statement was made at a rally, the crowd laughed, and he was crudely expressing his opinion about the war. The opinion specifically notes that protected speech can sometimes be angry and abusive.

The reasoning behind making true threats unprotected under the First Amendment was further explained in the Court’s most recent opinion dealing with this issue, Virginia v. Black. The opinion focused on two cases involving a Virginia law that made it illegal to burn crosses. One defendant was convicted for burning a cross at a Klu Klux Klan rally, while another was convicted for burning a cross on a black family’s lawn. The Court upheld the conviction and the law as it applied to the cross burning on a family’s lawn, yet reversed the ruling regarding the burning at the rally.

Explaining this, the Court found that one purpose of making true threats unprotected was to protect people from intimidation. Criminalizing a true threat was aimed at the secondary effects of intimidation instead of the actual content– the loss of productivity, time, and expense that someone fearing for their safety may experience after they are threatened. This same justification explains why banning threats against the President previously was upheld – the time taken to protect against threats, and the disruption a threat may cause, are secondary effects of a threat that a State has a compelling interest in preventing. The burning of a cross by Klu Klux Klan members had a long tradition in the South of being used to intimidate black families, and often meant harm was likely to follow. A family having a cross burnt on their lawn was being directly intimidated and threatened, and was likely to suffer secondary effects from this. However, the burning of a cross at a private rally in a secluded area was not directly threatening anyone specifically or harming them via these secondary effects.
 Watts v. US (1969)


Virginia v. Black (2003)>

Obscenity Important Cases
The Supreme Court has consistently ruled that obscenity is without First Amendment protection. However, methods for deciding what is or is not obscenity has changed over time, with the vagueness of its definition causing significant controversy.The Supreme Court first ruled that obscenity was without protection under the First Amendment in 1957, in Roth v US. The decision encompassed two cases, one dealing with a conviction for mailing obscene materials under a state law, the other federal. The Court upheld the convictions, holding that obscenity was not protected under the First Amendment due to the long tradition nationally and abroad to restrict or ban its distribution. Obscene material was described as material which dealt with sex in a way that appeals to the “prurient interest”, a term the court defined as having a tendency to incite “lustful thoughts” or “a shameful or morbid interest in nudity, sex, or excretion…” going “substantially beyond customary limits of candor in description or representation of such matters.”

In the decade and a half following Roth, the Court had difficulty applying that standard and definition. In Jacobellis v. Ohio, Justice Potter Stewart famously said about obscenity, “I know it when I see it.” Additionally, in Stanley v. Georgia, the Court held that only the distribution of obscene material was unprotected – the private possession of the material alone was protected. The Court proceeded to overturn more than 30 obscenity convictions without issuing opinions until reformulating the test for obscenity in 1973.

This new test, which the Court continues to use, was created in Miller v. California. The Court remanded a conviction for sale and distribution of pornography via mail under a California obscenity statute, holding that the new standard be used. This test concluded that the distribution or sale of obscene materials was not protected under the First Amendment, and material could be considered obscene if 1) the average person would find the material as a whole appeals to the prurient interest, 2) it describes sexual conduct in a patently offensive way as defined by state law, and 3) as a whole it lacks serious literary, artistic, political or scientific value. The “average person” standard of the first prong is a community standard, allowing for variation in interpreting obscenity depending on locale.

Two cases following Miller further fleshed out the test. In Jenkins v. Georgia, a 1974 case regarding whether or not the Jack Nicholson’s movie Carnal Knowledge was considered obscene, the Court held that there are limits as to what a state may consider patently offensive – mere nudity not being enough. Pope v. Illinois clarified that for the 3rd prong, the community standard for judging the value of material is a national one rather than a local community standard.
 Roth v. United States (1957)


Jacobellis v. Ohio (1964)


Stanley v. Georgia (1969)


Miller v. California (1973)


Jenkins v. Georgia (1974)


Pope v. Illinois (1987)

Child Pornography Important Cases
In 1982, the Supreme Court held in New York v. Ferber that child pornography was unprotected and its distribution could be restricted. The opinion also made clear that child pornography did not have to fit under the Miller obscenity test to be banned because the state interest in protecting children, which are harmed by child pornography, was so compelling and clear.

This same compelling interest was later used in the Court’s opinion in Osbourne v. Ohio, which held that the mere possession of child pornography was also not protected and could be restricted. Similarly to Faber, this justification exists outside the context of possession of obscene materials – the Court reasoned that by prohibiting possession, the state’s interests in protecting children as well as the destruction of the market for child pornography were sufficiently compelling.

In its most recent ruling on child pornography, Ashcroft v. Free Speech Coalition, the Court struck down portions of a law that prohibited visual depictions of what “appeared to be” minors engaged in sexual activity. The Court held that this was unconstitutional because it was overly broad, and focused on content rather than secondary effects. The opinion mentions multiple instances where socially worthy content, such as Romeo and Juliet, could be prohibited under the statute’s wording. Additionally, the Court found that the government did not present strong enough evidence that banning so-called “virtual” child pornography would have any additional impact on the secondary effects the bans on normal child pornography had.
 New York v. Ferber (1982)


Osbourne v. Ohio (1990)


Ashcroft v. American Civil Liberties Union (2002)

Defamation

Defamation is the communication of a false statement that harms the reputation of another. When in written form it is often called ‘libel’. Defamation has always acted as a limit on both the freedom of speech as well as the freedom of the press. There is no such thing as a false opinion or idea – however, there can be a false fact, and these are not protected under the First Amendment. When these false facts harm the reputation of others, legal action can be taken against the speaker. Since the press reports on people and events constantly, claims of defamation are bound to occur by those who either have incorrect, negative, or unwanted facts reported about them. However, if there was no First Amendment protection for the press, the press might become too cautious – afraid to report controversial facts out of the fear of being sued by anyone who did not like the coverage. The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections. Traditionally, the press was only exempt from libel claims if it reported on a public figure or the government and met certain standards. The statements of fact had to be substantially true, and comments or opinions had to be fully justified by those true facts. Libel required that a defamatory statement had been made about a plaintiff and communicated to a third party. Additionally, the person committing the liable was “strictly liable” – they could be found guilty regardless of if they intended the libel or not.
Actual Malice Standard Important Cases
The Supreme Court changed this common law tradition in 1964 with the famous New York Times v. Sullivan decision. At the time of the decision, over $300 million dollars’ worth of libel suits, all brought by southern officials and individuals, were pending against newspapers who had reported on the civil rights movement. A group of civil rights leaders and clergyman took out a full page advertisement in the New York Times which described the abuse they endured from local police and asked for support for Martin Luther King. In response, an Alabama commissioner who oversaw the police departments brought a libel lawsuit against the New York Times and the leaders listed in the ad.


The commissioner disputed several of the accounts of police conduct and argued that since he was directly overseeing the departments, his reputation was harmed. An Alabama jury awarded him $500,000 and the Alabama Supreme Court upheld the award. In doing so, the Alabama courts held that the statements were libelous “per se” – meaning no harm to the reputation actually had to be shown. Additionally, they held that it could be inferred that the New York Time’s acted out of “malice” – bad intent – because it should have known some of the statements were inaccurate.


The Supreme Court held that the Alabama ruling did not provide appropriate protection to the press. The Court was very concerned with the possibility that newspapers, without the proper protection, would engage in self-censorship. The Court held that in order for a public official bringing a libel suit to be awarded damages, they would have to prove “actual malice” – that the person charged with libel knew the statement was false, or recklessly did not investigate whether it was. This high standard involves proving the intent of the author – a very difficult task. This provides the press with a high level of protection to report on public officials without fear of retaliatory lawsuits. The Court stated a two-fold necessity for protecting the press from public officials: that strong debate was needed in regards to public issues, and that this strong debate must also be about officials who can influence the issues. As the Court would later describe in Gertz v. Robert Welch, Inc, “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.”


Overcoming this standard by proving actual malice is extremely difficult. A publisher’s misinterpretation of official documents (Time Inc, v Pape) or an inaccurate perception of a defendant’s perception (Bose Corp. v. Consumers Union) are not good enough alone to meet the standard. In St. Amant v. Thompson, the Court held that the “reckless disregard” portion of the actual malice standard required evidence showing that the defendant had serious doubts about the truth of what they were publishing.

 New York Times v. Sullivan (1964)Gertz v. Welch (1974)


Time, Inc. v. Pape (1971)


Bose Corp. v. Consumers Union of United States, Inc. (1984)


St. Amant v. Thompson (1968)

Government Officials Important Cases
With this new standard, who would be considered a public official? The Court outlined this shortly after Sullivan, in the 1966 case Rosenblatt v Bauer. The operator of a county-owned recreational area sued a local paper columnist over an article that implied mismanagement of funds related to the area. The lower courts determined that the operator was not a public official, and therefore did not need to prove the high standard required under Sullivan. The Supreme Court reversed, holding that public officials are “those among the hierarchy of government employers who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rank or title does not necessarily determine an official’s status, the key focus being on the official’s ability apparent ability to influence public affairs. Rosenblatt v Bauer (1966)
Public Figures Important Cases
The Supreme Court has also determined that public figures – well-known, otherwise private individuals, yet not government officials – are treated very similarly to government officials. In Curtis Publishing Co v. Butts, a former athletics director sued a newspaper for publishing a story accusing him of divulging secrets to the opposite side in a football game in order to “fix” the game. Holding that the athletic director would have to meet the New York Times standard of proving “actual malice” in order for his suit to be effective. The Court pointed out several similarities between public figures and public officials – both may have the ability to influence, or are important to, public affairs. Additionally, public officials and public figures have stronger voices in the mass media than private citizens. This already gives them protection, because they the ability to counteract any defamatory statements made about them. A private individual does not have to meet the high standards set in New York Times v. Sullivan because they need more protection and are less important to be reported on.

Not all public figures are treated the same. Gertz v. Robert Welsh, Inc. was a 1974 decision that involved an attorney suing a publisher for accusations made in one of their magazines that the plaintiff was a communist. The plaintiff had represented the family of a youth shot by police at the officer’s civil trial, and the defendant had accused the plaintiff in being part of a socialist plot against the nation’s police force. The defendant claimed that due to the trial, the attorney was a public figure, and therefore had to prove “actual malice” of the defendant in order to win his libel suit.

The Court outlined two different types of public figures – those that were notorious and famous in general, and those which were famous because they were drawn inadvertently into some controversy or scandal. This second type, the limited purpose public figure (also known as a “vortex public figure”), is only considered by the Court to be a public figure within the boundaries of the issue that made them that in the first place. However, in the case of Gertz, the Court found the attorney to be a private individual because of his minimal public presence (no comments to media, not famous).

Over the next decade after Gertz, the public figure standards continued to be defined, the general trend being that the determination should focus on the figure’s role in a controversy, not the subject matter of the controversy. In Time, Inc. v. Firestone, the Court held that mere involvement in a lawsuit was not enough alone to make one a limited purpose public figure. Neither was simply being a scientist involved with publicly funded research, as held in Hutchinson v. Proxmire.
 Curtis Publishing Co. v. Buts (1967)


Time, Inc. v Firestone (1976)


Hutchinson v. Proxmire (1979)

Defenses Important Cases
Opinion

Opinions, by their very nature of being opinion rather than fact, cannot be false. It is difficult to bring a successful libel action against an opinion because defamation/libel require a falsity.Despite this, the Court has not afforded exclusive constitutional protection to opinion. Under the common law prior to the Supreme Court ruling on the subject, opinion was only protected from defamation if it was based on substantially true facts that fully and fairly justified the opinion.In the 1990 decision Milkovich v. Lorain Journal Co., the Supreme Court declined to create a full exemption to defamation for opinions. The Court reasoned that creating a wholesale exemption would make it too easy to hide defamatory implications and assertions behind opinion. The only opinions which would be privileged and protected are those about matters of public concern which are not based on false facts, or opinions that cannot be interpreted to state any facts about the plaintiff.


Absolute Privilege

Absolute privilege provides a publisher immunity against any defamation claim, regardless of their motive or manner by which they publish. This level of protection is only provided in certain circumstances.Statements made in any judicial proceeding, or in the accurate reporting of statements made in a judicial proceeding, are protected from defamation claims. This includes statements made in court as well as in pleadings and papers.


Legislators are also protected from defamation claims when they are performing their duties. This right to absolute immunity is provided for in the Constitution under the “Speech and Debate Clause”. This right, like in the judicial proceeding privilege, extends to the press which accurately report the comments. The purpose behind this privilege is to allow elected officials to make difficult decisions and openly debate without having to censor themselves out of fear of legal retribution for their words. However, this privilege does not extend to statements made outside the course of their duties, such as in newsletters or press releases. This was the case in the Court’s decision Hutchinson v. Proxmire, where the Court refused to provide absolute immunity to a senator being sued by a scientist who had been accused by the senator of wasting tax payer money in a press release.


The chief executives of federal, state, and local government are also provided absolute privilege. The reasoning behind this is the same as the legislators – removing the fear of defamation suits allows the government official more freedom to govern without pressure.


The last form of absolute privilege given is for publishers who have received consent from the plaintiff. This can take the form of publishing releases which the plaintiff has signed, making it a matter of contract rather than defamation law.


Qualified Privilege


A reporter has the qualified privilege to report the going-ons within official public meetings, even if defamatory statements take place at that meeting. In Cox Broadcasting Corp. v. Cohn, the father of a murdered rape victim sued a news station for releasing his daughter’s name. The reporter had asked for and received the name from a clerk in open court. The Supreme Court held that since the reporter had lawfully acquired the name through a public meeting, they were allowed to report it.      

 Milkovich v. Lorain Journal Co. (1990)
Damages Important Cases
Presumed Damages
Under Common Law, a plaintiff is presumed to have been damaged whenever they can show that a defamatory statement has been published about them, without needing specific proof at trial that they were harmed. Gertz overruled this common law principle, requiring that presumed damages or punitive damages may not be awarded unless a plaintiff may show defendant had knowledge of falsity or reckless disregard for the truth.However, in Dun & Bradstreet v. Greenmoss Builders, the Court emphasized that presumed damages were still available to plaintiffs if they involved private individuals and statements that were not of the public interest. The defendant in that case, a credit agency, notified several of its subscribers that the plaintiff construction company had voluntarily filed for bankruptcy. The report on the plaintiff was extremely inaccurate, and plaintiff sued. The Court held that presumed damages do not violate the First Amendment when the statements are not of public concern. In that case, the credit of plaintiff was not of public concern, only concerning the immediate parties to the case and the subscribers.Compensatory Damages
The decision in Gertz meant that as a matter of federal law, all libel plaintiff’s must prove actual injury and damages. The proof of these compensatory damages is not limited to out-of-pocket costs and losses. The Court identified that in defamation cases, compensatory damages may also include damages for impairment of the plaintiff’s reputation in their community, as well as for mental anguish and suffering.

Punitive Damages
Gertz barred punitive damages unless “actual malice” by the defendant was proven. Unlike Gertz’s ruling on presumed damages, all plaintiffs – regardless of whether they are private, public, or government officials – must prove actual malice in order to be awarded punitive damages in a libel suit.
 Dun & Bradstreet, Inc. v. Greenmoss Builders (1985)

Free Exercise

The Court’s earliest Free Exercise Clause-related case was Reynolds v. United States, decided in 1878. A Mormon man challenged the anti-polygamy laws he had been charged under for having multiple wives. He claimed that he had a religious duty to have multiple wives, and that any law restricting or punishing this violated his free exercise under the First Amendment.

The Court rejected this argument, noting that if this were so religion would be able to trump law at any point and permit “every citizen to become a law unto himself.” Thomas Jefferson’s famous letter to the Danbury Baptist Association was cited in the opinion to show that the clause’s purpose was to prevent restrictions on religious thought and belief – not on religious inspired action. As Chief Justice Waite wrote for the majority, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

Solicitation Important Cases
Following Reynolds and prior to the strict scrutiny formulations of the 1960s, most of the Free Exercise Clause decisions involved restrictions on religious solicitation – prohibitions or fines on religious groups asking for money or trying to get new members.


In the 1940 Cantwell v. Connecticut decision, the Court overturned the convictions of several Jehovah’s Witnesses for soliciting donations without a license. The Court admitted that religious conduct could be regulated, but held that it could not unduly infringe on protected freedoms in order to fulfill the goal of the statute. In this case, the licensing was unconstitutional against both the Free Exercise Clause as well as the Free Speech Clause. Cantwell was important for another reason – it was also the first time that the Free Exercise Clause was incorporated against the states through the 14th amendment.


Licensing taxes ( Murdock v. Pennsylvania) and book selling taxes ( Follet v. McCormick) against religious solicitation were held to be an unconstitutional burden on the free exercise of religion as well. In regards to these infringements, Justice Douglas wrote in Follet, “Freedom of religion is not merely reserved for those with a long purse… [T]hey avail themselves of the constitutional privilege of a ‘free exercise’ of their religion when they enter the pulpit to proclaim their faith.”


One of the few restrictions that was upheld in this time period was the use of children in solicitation ( Prince v. Massachusetts).

 Cantwell v. Connecticut (1940)Murdock v. Pennsylvania (1943)


Follett v. Town of McCormick (1944)


Prince v. Massachusetts (1944)

Strict Scrutiny Important Cases
The Court first applied strict scrutiny to laws burdening religious exercise in the 1963 decision Sherbert v. Verner. A woman quit her job because she refused to work on the Sabbath. The state denied her unemployment benefits, and the Court held that the denial of benefits burdened her religious exercise as a result – the woman had to choose between her faith or losing her job. The Court determined that the state would need a “compelling state interest” to justify the “substantial infringement of appellant’s First Amendment right.” The Court could not find a compelling interest, and held the law violated the Free Exercise Clause.


Following Verner, the Court only held laws to be in violation of the Free Exercise Clause in two areas: government benefit cases like Verner, and mandatory education of Amish children.


In Thomas v. Review Board the Court held a denial of benefits unconstitutional and refused to judge the actual content of the religious doctrine – satisfied instead with simply knowing that the petitioner in that case, Thomas, had truly quit due to religious reasons.


Multiple other cases involved working on the Sabbath like in Verner, and each was decided in the same manner. In Frazee v. Illinois Department of Social Income, the Court also added that it did not matter whether the petitioner was part of an organized religion or sect, as long as his religious belief was sincere.


Wisconsin v. Yoder, decided in 1972, involved members of the Amish community challenging a compulsory education law under the Free Exercise Clause. The Amish petitioners argued that forcing Amish children to attend school past the 8th grade violated their religion because it exposed the Amish to the “worldly influence”. The Court agreed, noting that the law also infringed the rights of parents to control the upbringing of their own children. The Court determined that the self-sufficient nature of the Amish community made the additional schooling unnecessary, therefore there was no compelling state need.


Outside of these two areas, the Court did not uphold any challenges to laws under the Free Exercise Clause. Most of these cases involved claims of exemption to certain laws due to religious reasons.


Taxes

Several of the claimed exemptions denied by the Court were in regards to taxes. In Jimmy Swaggart Ministries v. Board of Equalization of California, the Court upheld the constitutionality of sales and use taxes as applied to the sale of goods and literature by religious organizations. The religious organizations in this case argued that they should be exempt from the tax, which they believed was unconstitutionally applied to them under Murdock and Follet. The Court disagreed and denied them any exemption, noting that the sales and use taxes in this case were general, while the taxes in Murdock and Follet were targeted only at First Amendment activities.


In Bob Jones University v. United States, a private school argued that the denial of tax exempt status to racially discriminatory private schools violated the Free Exercise Clause. The Court applied strict scrutiny, and held that the government had a compelling and overriding need to eradicate racial discrimination that outweighs any burden denial of a tax benefit would bring. Additionally, there was no less restrictive means to achieve that goal.


Military

The Court has also upheld laws being challenged under the Free Exercise Clause that dealt with the military. In 1971 the Court decided Gillette v. United States, holding that the free exercise clause did not make people who objected to a particular war be exempt from the draft. The three defendants in the case were convicted for refusing to fight in Vietnam, which they specifically objected to. The Selective Service Act, otherwise known as the draft, has a religious exception for people who object to all wars due to their beliefs. The defendants in this case, however, specifically said they objected to the Vietnam War – not all wars. The Court ruled against the defendants, stating that the act was equally applied to all and did not interfere with any religious practice. Additionally, the Court said it was justified by substantial government interests.


In Goldman v. Weinberger, the Court upheld an Air Force dress code that prohibited yarmulkes. The petitioner, an orthodox Jew and rabbi, argued that it violated his free exercise of religion if he was forced to remove his yarmulke. The Court disagreed, holding that it did not violate the Clause, and justifying this by stating that it had a stronger deference to the military and its rules in comparison to laws in civilian society.


Other

Although the Free Exercise Clause may protect certain individuals from compulsion to act or do certain things, the Court does not interpret the Clause as allowing individuals to dictate government action due to their own beliefs. In Lyng v. Northwest Indian Cemetery Protective Association, the Court rejected a free exercise challenge to a federal government road building over a sacred Indian burial ground. Although the Court acknowledged that this would “destroy” the Indians’ ability to practice their religion, the Court held that the government cannot conduct its affairs to be tailored towards certain citizen’s religions.

 Sherbet v. Verner (1963)Thomas v. Review Board of the Indiana Employment Security Division (1981)


Frazee v. Illinois Employment Security Department (1989)


Wisconsin v. Yoder (1972)


Jimmy Swaggart Ministries v. Board of Equalization of California (1990)


Bob Jones v. United States (1983)


Gillette v. United States (1971)


Goldman v. Weinberger (1986)


Lyng v. Northwest Indian Cemetary (1988)

Employment Division vs. Smith Important Cases
The Court’s decision in the 1990 case Employment Division v. Smith completely altered how the Court handles Free Expression clauses. Native Americans challenged an Oregon law prohibiting the use of peyote, a hallucinogenic cactus. The petitioners challenged their disqualification for employment benefits due to the fact they had been dismissed because they used peyote.

The Court rejected this, holding that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Writing for the majority, Justice Scalia analyzed cases where the Court had agreed with Free Exercise Clause challenges. He surmised that Cantwell, Murdock, Follet, and Yoder all involved other rights beyond simply the Free Exercise Clause and were therefore “hybrids” that triggered strict scrutiny.

Additionally, he narrowed Sherbert and the cases that involved it to only apply to employment benefit cases. The majority expressly rejected strict scrutiny because, given the wide variety of religions and beliefs, it was not feasible to approach every potential regulation as invalid. Smith replaced strict scrutiny with a rational basis standard when the laws were “neutral laws of general applicability”, which the dissenters vigorously opposed. The dissent argued that the majority had mischaracterized precedent in order to come to this new conclusion.

Despite the limiting effect of Smith, the Court has still held a law to be in violation of the Free Exercise Clause when it was not neutral. In Church of the Lukumi Bablu Aye, Inc. v. Hialeah, the law at issue banned animal sacrifices but made exemptions for certain religions, like Judaism. The Church of Santeria, which uses animal sacrifice, was not exempt challenged the law. The Court agreed with the Church unanimously that the law was unconstitutional. Given the timing of the law’s passage (in direct response to the announcement that the Santeria church would be building facilities in the city) and the specific exemptions and wording, it was clear the city was trying to prohibit a religious practice. This made it not neutral. Additionally, the law was so specific as to animal ritual slaughter that it was not “generally applicable” – the city did not have ordinances preventing other ways for animals to be killed.
 Employment Division v. Smith (1990)Church of the Lukumi Bablu Aye, Inc. v. Hialeah (1993)
RFRA and RLUIPA Important Cases
In response to Employment Division v. Smith, Congress passed the “Religious Freedom Restoration Act” which reinstated the strict scrutiny test instead of the Smith test. However, shortly after this the Court invalidated RFRA. In City of Boerne v. Flores, the Court declared RFRA unconstitutional because in enacting it, Congress exceeded its power under the Fourteenth Amendment. Justice Kennedy, writing for the majority, explained that although Congress had the power to enact laws to “enforce” the Amendment, Congress is not “enforcing” when it creates new constitutional rights or expands the scope of rights. The rights which Congress can enforce under the 14th amendment have to be recognized by the Courts first.


Because this struck down RFRA as used through the 14th amendment, this effectively ended any use of RFRA by the states and local governments. However, RFRA’s applicability to the federal government was still an open issue.


In 2000, Congress also passed the Religious Land Use and Institutionalized Persons Act. This required that state and local government use strict scrutiny in certain limited circumstances – when dealing with land use decisions or institutionalized persons. Congress claimed authority under the commerce power and as a condition on federal funding. In response to City of Boerne v. Flores, many states also passed their own versions of RFRA. Currently, state and local governments’ laws on religious freedom vary– all are subject to RLUIPA, some are subject to Smith, and others reject Smith in favor of their state RFRA.


The question of whether or not RFRA could apply to the federal government was settled in the 2006 case Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. Similar to Smith, this case involved the seizure of the ceremonial hallucinogenic mixture known as “ayahuasca” from the UDV Church in New Mexico. The Church argued that this violated their free exercise of religion under RFRA, and the Court agreed. Although ayahuasca was illegal under the Controlled Substance Act, the federal government failed to meet strict scrutiny as required by RFRA – it could not show a compelling government interest in granting a religious exception to the Church.


RFRA applies to corporations as well as individuals. In the recent and controversial decision of Burwell v. Hobby Lobby, the Court held that the contraception mandate in Obamacare violated RFRA when applied to closely-held corporations who claimed it violated their religious beliefs. Hobby Lobby, a closely held corporation, claimed that as a corporation it could be considered a person with religious beliefs. The Court agreed, noting that non-profits under RFRA, as well as corporations in other contexts, already were considered a “person.” Applying the least-restrictive means standard under RFRA, the Court held that less restrictive means existed to provide the contraception rather than mandate the companies provide it. Therefore the contraceptive mandate violated RFRA as applied to companies whose religious beliefs objected to it.


Justice Ginsberg wrote a lengthy dissent joined by the other liberal Justices. Ginsberg’s dissent focused on the dangers of such a broad ruling allowing for-profit corporations to claim religious beliefs, which she feared could allow corporations to opt out of generally applicable laws. Additionally, Ginsberg observed that the hypothetical less-restrictive means suggested by the Court – the government paying for the contraceptives – did not exist in any form that could actually provide the necessary coverage yet.

 City of Boerne v. Flores (1997)Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006)


Burwell v. Hobby Lobby (2014)

Internal Religious Disputes Important Cases
The Free Exercise Clause also protects the inner-workings of religious organizations from interference by the government and the courts. The Court generally will refuse to interject itself into religious disputes involving doctrine or property unless the matter completely rests on secular legal concepts.

In the 1871 decision Watson v. Jones, the Court was asked to settle a dispute over church property. The case was decided on non-constitutional grounds, but the opinion stressed the importance of religious free exercise and that “[I]t would lead to the total subversion of religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.”

In Gonzalez v. Roman Catholic Archbishop of Manila, the dispute at issue in the case was whether or not a man was qualified to be a chaplain of the Catholic Church. The Church refused to grant the chaplain position, and the Court held that it could not settle the issue – who was a chaplain under Church doctrine was an issue for the hierarchy of the Church to decide. Similarly, the Court overruled a lower court ruling in Serbian Orthodox Diocese v. Milivojevich which had involved the question of whether or not a bishop could be defrocked. The Court held that this review was an impermissible replacement of the Church’s judgment by the Court on a religious doctrine issue.

Unlike religious doctrine, property disputes can sometimes be settled by the Courts. However, the cases must be based on completely secular law, rather than religious doctrine. In Jones v. Wolf, the Court remanded a decision to the lower court to decide on whether a dispute could be settled on traditional common law property principles. Any inquiry into the religion, however, would be unacceptable under the Free Exercise Clause.
 Watson v. Jones (1871)Gonzalez v. Roman Catholic Archbishop of Manila (1929)


Serbian Orthodox Diocese v. Milivojevich (1976)


Jones v. Wolf (1978)

Religion in Schools

Speech Important Cases
Religious expression can be considered protected speech under the Free Speech Clause. When protected speech is at issue, the freedom of speech will weigh heavily against a violation of the Establishment Clause.


The Court has repeatedly shown this in its rulings regarding religious group access to school facilities. In Widmar v. Vincent, the Court ruled against a school that prohibited religious groups from using school facilities for worship or religious discussion. Determining that a school opening its facilities for student groups created a public forum, the Court then analyzed the school’s conduct under a freedom of speech analysis, determining that it was not content-neutral because it discriminated against religious speech. The Court applied the Lemon Test as well, and held that excluding religious speech was not necessary to uphold the Establishment Clause. Keeping a forum open to all groups and messages furthered the secular purpose of providing a forum for students, advancement of religion was ‘incidental’, and no surveillance would be needed.


The Court ruled this way in several very similar cases, including in Lamb’s Chapel v. Center Moriches Union Free School District. In Lamb’s Chapel, the Court specifically states that the government must meet a strict scrutiny standard in order to discriminate against religious speech. Because the law passed the lemon test, the majority reasoned that fear of violating the Establishment Clause could not be the compelling reason for the school in this case to discriminate against religious speech.


The cases allowing religious groups access to school facilities despite the Establishment Clause also have been used to justify school funding for religious student activities. In Rosenberg v. Rector and Visitors of the University of Virginia, the Court ruled against a state university’s denial of activity funding for a Christian student group which published a Christian magazine. The majority, written by Justice Kennedy, first used a freedom of speech analysis to determine that this was not a content-neutral prohibition. Next, the majority held that this did not violate the Establishment clause because the funding distribution was neutral to religion. The majority cited the decision in Widmar and Lamb’s, stating there was no difference between a school using funds to neutrally give groups access to its facilities and a school using funds for all groups neutrally for activities like printing a magazine.


Despite the cases above, the Court still has acted at other times to limit religious speech and expression at schools. In Santa Fe Independent School District v. Doe, the Court held that student-delivered prayers at school football games was unconstitutional. The Court determined that football games were not forums where students could say whatever they wanted – the school could restrict the messages. Therefore by allowing prayer before games, the school was in fact endorsing and facilitating prayer, rather than simply allowing private speech.

 Widmar v. Vincent (1981)Lamb’s chapel v. Center Moriches Union Free School Dist. (1993)


Rosenberger v. Rector and Visitors of the University of Virginia (1995)


Santa Fe Independent School Dist. v. Doe (2000)

Attendance and Release Important Cases
The first Supreme Court cases to deal with religion in public schools involved the determination of whether or not students could be allowed to leave to attend religious classes. McCollum v. Board of Education, decided in 1948, ruled that this was unconstitutional when the church used the public school to get this attendance. In McCollum, the religious classes were taught in the building by outside teachers approved by the school. The Court reasoned that this was impermissible because it used tax-supported public schools to disseminate religious doctrine. Additionally, because children were required to attend the public school by law, the religious classes were basically using the mandatory public school law to get attendance.

However, shortly thereafter in 1952, the Court ruled the opposite in Zorach v. Clauson. In that decision the Court allowed early dismissal for religious instruction because the teaching was outside of the school. The majority stressed that the country had a history as a religious people, and that this was merely accommodating that – also, unlike McCollum, the school was not involved in the actual religious teaching.
 McCollum v. Board of Education (1948)


Zorach v. Clauson (1952)

Curriculum Important Cases
The Court has struck down government decisions regarding curriculum where the curriculum was motivated by religion. A significant amount of this litigation has arose in regards to the teaching of the theory of evolution in the classroom.

In Epperson v. Arkansas, a state law prohibiting the teaching of evolution in state supported schools was struck down as unconstitutional. The law violated the Establishment Clause because it was motivated by a religious purpose, and the state cannot tailor its public education towards one particular religion’s beliefs. Additionally, the Court noted that the state had no legitimate interest in shielding religions from views it may find disagreeable.

In the 1987 case Edwards v. Aguillard, the Court struck down a law which required that creationism be taught alongside evolution. The Court cited Epperson, and determined that the purpose of the law was to provide “persuasive advantage” to the views of one religion that denied evolution. This advancement of a religious belief was unconstitutional.
 

Epperson v. Arkansas (1968)
Edwards v. Aguillard (1987)
Prayer Important Cases
The first decision to hold that prayer in public school was unconstitutional was in the 1962 decision Engel v. Vitale. A school policy to daily recite a non-denominational prayer, written by a State Board of Regents, was struck down as a violation of the Establishment Clause. The Court concluded that regardless of the supposed “denominational” nature of the prayer, it still clearly established religious beliefs on behalf of the Board. Justice Black’s opinion discussed that the quality of both religion and government are threatened when they two are combined. The government writing a prayer and then requiring it be recited before school clearly mixed religion and government. The opinion stressed that this was not an anti-religious ruling, because it kept prayer in the hands of the people rather than under the control of the state (like the school board writing prayers).

Decided shortly after Vitale, Abington School District v. Schempp held that a school policy of reading from the bible and reciting the Lord’s Prayer daily in unison was also a violation of the Establishment Clause. Although the State was not composing the prayers like in Vitale, the fact that they were happening in school buildings, as part of the curriculum, under the supervision of teachers was still enough to violate the Clause. The Court stressed that this was different than reciting the Bible in a class on religion or literature – this was active religious practice.

Even moments of silence for prayer or meditation have been struck down as violating the Establishment clause. In Wallace v. Jaffree, the Court ruled an Alabama law requiring a moment of silence for prayer or meditation was unconstitutional. After examining the legislative history, the Court determined that it was clear the intent was to reintroduce prayer back into public schools. The Court could not determine any secular purpose to the statute, and struck it down.

Clergy-led prayers at high school graduations have also been ruled unconstitutional in Lee v. Weisman. The majority cited to the prior prayer-related cases, as well as noting the inherent coercion in having prayer at a graduation ceremony. Graduations are a very important day to many people, and those people would feel compelled to go. This would mean that they were being compelled and pressured into religious exposure.

Justice Scalia, joined by Chief Justice Rehnquist, and Justice’s Thomas and White, wrote a strong dissent in the case, finding nothing about a prayer during a graduation ceremony in violation of the Establishment Clause. Scalia argued that the Government should accommodate religion, which would both teach the civic virtue of respecting other’s religious beliefs, as well as uphold American traditions of prayer at official ceremonies
 Engel v. Vitale (1962)Abington School District v. Schempp (1963)


Wallace v. Jaffree (1985)


Lee v. Weisman

Aid for Elementary and Secondary Education Important Cases
When determining whether or not the government can aid private religious schools, courts will first evaluate whether or not the aid is available to all students or just religious students. One of the earliest and most influential cases in this regard is Everson v. Board of Ewing Township, decided in 1947. At issue was whether New Jersey could use tax-payer funds to subsidize school busing to parochial schools. The Court answered in the affirmative, noting that the law applied to students in general, not just private school students. Additionally, the law was passed with a secular purpose – getting children to school. Everson was an extremely important case for the Establishment Clause because it for the first time incorporated the Clause through the 14th amendment so that it applied to the states as well as the federal government.


In Committee for Public Education v. Nyquist and Sloan v. Lemon, two different state systems for reimbursing the educational costs of students going to private schools were struck down as violating the Establishment Clause. The aid only benefited private school students, and therefore had the effect of advancing religion. Additionally, the money involved in Nyquist was being given in lump sums to the school, rather than to the student. This further violated the barrier between church and state.


When tax credits or aid are available to all students, public and private, the Court has been much more likely to accept them as constitutional. In Mueller v. Allen, the Court upheld tax credits that applied to all students. The Lemon test was applied. The statute’s secular purpose of defraying the costs of education satisfied the first prong. Differentiating Mueller from Nyquist, the Court determined that the law satisfied the second prong because it advanced all students in a neutral manner rather than only private students. Lastly, since no ongoing surveillance or monitoring was necessary, the act fulfilled the last prong.


School vouchers were similarly upheld as constitutional under the Establishment Clause when they applied evenly to all students. In the 2002 decision Zelman v. Simmons-Harris, the Court upheld Ohio’s voucher program. The vote was 5-4, but the majority held that when a government aid program is neutral in respect to distribution, it does not violate the Establishment Clause if the family recipient then chooses to use it for a religious private school.


The Court will also look to see whether or not the aid is going towards teaching of secular topics or being used for religious instruction. For example, although funding busing to parochial schools was upheld in Everson, funding for parochial school trips was declared to be unconstitutional in Wolman v. Wolter because those are more likely to advance religious education. Likewise, in the government can fund standardized testing given to private school children (Committee for Public Education and Religious Liberty v. Regan) but cannot for teacher-written exams (Levitt v. Community for Public Ed.). This is because it is much more likely for a teacher-written exam at a parochial school to advance religion.


The former strict separation the Court enforced in regards to aid has become more relaxed over time, however. In Agostini v. Felton, decided in 1997, the Court overruled the 1985 decision in Aguilar v. Felton, which had held that it violated the Establishment Clause to allow the government to send in remedial education teachers to parochial schools. In 1993, the Court also ruled that sign language interpreters could be provided by the government for parochial students.


Although these may turn out to be narrow exceptions, separation has been relaxed in other areas too. For example, in the 2000 decision Mitchell v. Helms, the Court allowed the government to provide instructional equipment to parochial schools. This included lab equipment, recording equipment, projects, and printed materials. The decision in Mitchell overruled an earlier case, Meek v. Pittinger, which had said this was a violation of the Establishment Clause because the equipment could be converted to teach religion. The plurality in Mitchell, led by Justice Thomas, stated that the important factor was that the distribution of the equipment was neutral to both public and private schools. The plurality argued that it didn’t make a difference if the equipment was converted to religious use – any aid given, even if for secular use, would free up funding for the religious schools to use for religious purposes regardless.

 Everson v. Board of Education (1947)Sloan v. Lemon (1973)


Committee for Public Education v. Nyquist (1973)


Mueller v. Allen (1983)


Zelman v. Simmons-Harris (2002)


Wolman v. Walter (1976)


Committee For Public Education And Religious Liberty v. Regan (1980)


Agostini v. Felton (1997)


Mitchell v. Helms (2000)


Meek v. Pittenger (1975)

Aid for Higher Education Important Cases
The Court has treated government aid for religious colleges and universities very differently than that of lower education. In Tilton v. Richardson, the Court upheld the government funding construction of facilities at religious colleges and universities. Applying the Lemon test, the Court determined that the funding had a secular purpose: accommodating a larger number of people seeking degrees. Additionally, the Court noted that the buildings being constructed were not going to be used for religious instruction, per limitations made in the grants (the Court struck down a provision of the funding that would allow religious use after 20 years). Lastly, no monitoring or surveillance was necessary. The Court further reasoned that differences between higher education and lower education made this less of an issue – college students are less impressionable than children, and religious teaching is less emphasized in higher levels.

Direct aid to private universities and colleges was upheld in Roemer v. Board of Public Works in 1976. The Maryland law in question provided grants at %15 of the amount it spent on public students. All religious schools aside from seminaries could accept this aid. The plurality determined it met the Lemon test – it served the purpose of promoting private higher education generally, the funds were not allowed to be used for religious activity by law, and there was no excessive entanglement. Regarding the entanglement, the plurality stated that the political divisiveness that would come with aiding a religious elementary school would not occur at a higher education level because the student body was larger and more diverse.
 Tilton v. Richardson (1971)


Roemer v. Maryland Public Works Board (1976)

Establishment

The Establishment Clause prevents the government, whether it be federal, state, or local, from establishing an official religion. Three main theories exist regarding the Establishment Clause.The first view is Jefferson’s “strict separation”, which seeks the maximum possible separation of church and state. One consistent problem with this approach is that taken to its fullest, the government risks actually infringing on religious freedom. Additionally, many aspects of government and American traditions are already linked (such as the frequent mention of god in oaths and on money).The next view is the neutrality theory. This requires that government treat all religions, as well as lack of religion, neutrally. The government cannot show favoritism or preference for any one belief over the other, either literally or symbolically. The last view is the accommodation theory. Supporters of this interpretation believe that religion should be accepted as important and necessary to society, and that government should seek to accommodate it as long as government doesn’t establish its own church, force religious practice, or favors one religion over others. Accommodation theory views America as a plurality of belief systems rather than a secular society. Critics of this view believe that very little in the end will ever be held to be violating the Establishment Clause if this reasoning is used.
Discrimination Important Cases
Regardless of what doctrine of the Establishment Clause a Justice may support, it is clear that discrimination – favoring one religion over others- is expressly forbidden. If a law is discriminatory on its face, it must meet a strict scrutiny standard. In Larson v. Valente, the Court held that a Minnesota law was unconstitutional because it exempted only religious organizations who’s financial support was at least 50% funded by its members from reporting requirements. The Court stated that no one religion could be given preference over the others, and that by exempting only religious organizations with half their funds donated, the law favored large institutions like the Catholic church rather than others. Additionally, the government could not offer any compelling reason why this should be so.In Board of Education of Kiryas Joel Village School District v Grumet, decided in 1994, the Court struck down a New York law which created a separate public school district for the disabled children of a religious sect. The Court held this was an impermissible preference for one religion over others – the state had created a public school district just so that this group’s disabled children would not have to interact with others. A plurality in the opinion also expressed that this violated the Establishment Clause because allowing one religious group to control the political process (passing a law to create its own school district) was an impermissible combination of government and religion. Larson v. Valente (1982)Board of Ed. of Kiryas Joel Village School Dist. v. Grumet (1994)
Lemon Test Important Cases
Laws that are not discriminatory on their face can still be in violation of the Establishment Clause. If the clause is not discriminatory, the Court proceeds with the “Lemon Test” – a test derived from the influential case Lemon v. Kurtzman. This test has survived and evolved through use since the case was decided in 1971, but not without controversy.Lemon involved two different state statutes that both were challenged as violating the Establishment Clause. The statutes provided state funding to supplement religious private school teachers for materials and time needed to teach certain secular subjects. The schools in question were overwhelmingly Roman Catholic.The Court developed a test to see if the statutes, although non-discriminatory on their face, violated the Establishment Clause. First, it must have a secular legislative purpose. Second, its primary effect cannot advance or inhibit religion. Lastly, it cannot involve excessive government entanglement with religion. Determining that the legislation did have a secular purpose, and that its primary effect did not inhibit or advance religion, the Court still struck down the law because it entangled government with religion. The schools were considered an essential part of Catholic doctrine, and in both cases only Catholic private school teachers benefited. Religious teachers would likely be unable to stay religiously neutral. In attempting to make sure these teachers did stay neutral, the state would need to have the classrooms under constant surveillance – an impermissible entanglement of government with religion.
Secular Purpose

The first prong of the Lemon test requires that the law has been passed with a secular purpose. Some Justices such as Justice Scalia have been highly critical of this prong as well as the test in general. They argue that determining the motivation for legislation is subjective and inaccurate, and that the Lemon test has been applied inconsistently.

Despite this, the test has yet to be overruled. Several cases have been decided based on the first prong. In McCreary County, Ky. v. ACLU of Ky., the Court ruled against a county attempting to post the Ten Commandments in government buildings. The content of the Ten Commandments and the context of the county’s attempts removed all doubt that the action had no secular purpose, and was therefore unconstitutional.

Similar rulings have occurred in public schools. In public schools, the Ten Commandments being posted in every class (Stone v. Graham) as well as a moment of silence being provided for prayer (Wallace v. Jaffree) were both struck down as lacking any secular purpose.

Some laws with religious origins have been maintained despite this, if they have attained a broader secular use. In McGowan v. Maryland, the Court upheld a law requiring businesses to close on Sundays. Although they acknowledged the religious origin and influence, they noted that the “present purpose” is to provide a general day of rest for the public. The religious influence did not interfere with the secular purpose of the law.

Secular Effect

The second prong requires that the effect of the legislation is secular as well – not inhibiting or advancing religion. Often, this second prong analyzes whether or not the government is symbolically endorsing one religion over another.

In contrast to McGowan v. Maryland, the Court struck down a Connecticut law which made no person required to work on their Sabbath in Estate of Thornton v Caldor. The effect of this was to create a privilege for people to not work due to religion alone, which favors religion over other interests.

According to the Court’s 1987 decision in Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, the important question is whether the law has the effect of making government advance religion – not whether or not the law allows religions to advance themselves. In Amos, religious organizations’ exemption to Title VII’s prohibition against religious discrimination in employment was upheld under the Lemon test. Under the secular effect prong, the Court held that “a law is not unconstitutional because it allows churches to advance religion… For a law to have forbidden effects… the government itself has advanced religion…”

Excessive Entanglement

In Lemon, the Court considered a statute to be in violation of the last prong if it involved “comprehensive, discriminating, and continuing surveillance” or “enduring entanglement.” In Lynch v. Donnelly, a 1984 decision regarding a Christmas nativity scene, the Court held that the scene’s inclusion in a city’s Christmas display did not violate the third prong because there was only minimum contact between the church and the state and no ongoing maintenance was required.
 Lemon v. Kurtzman (1971)McCreary County v. American Civil Liberties Union (2005)Stone v. Graham (1980)


Wallace v. Jaffree (1985)


McGowan v. Maryland (1961)


Estate of Thornton v. Caldor, Inc. (1985)


Court of Presiding Bishop v. Amos (1987)


Lynch v. Donnelly (1984)

Religious Symbols on Government Property Important Cases
Placed by Private Party

Religious free speech also occurs when private individuals place religious symbols on government property. In Capital Square Review and Advisory Board v. Pinette, a state agency refused to allow the Klu Klux Klan a permit to erect a large cross in a park across from the state capitol. The state agency claimed that this violated the Establishment Clause, but the Court ruled on behalf of the KKK. The opinion had no majority, with the Justice’s offering several different interpretations.

Justice Scalia stated that compliance with the Establishment Clause was a compelling government reason that meets strict scrutiny, but wasn’t an issue here if the government treated religious speech on the same level as secular speech. Justice O’Connor focused on whether or not the community would understand the cross as government endorsement of religion: she determined they would not, given the context and history of the cross, the community, and the Klu Klux Klan. Without this risk, it did not violate the Establishment Clause. Justice Stephens wrote a dissent where he argued that the observer in O’Connor’s analysis should not be presumed to know the area and context, and therefore the large cross would seemingly endorse religion.

Placed by government

Religious symbols can be placed on government property only if they do not give the appearance that the government is endorsing religion or any particular religion. In the 1984 decision Lynch v. Donnelly, the Court upheld a city’s placement of a nativity scene in a park. Chief Justice Burger wrote for the majority and relied heavily upon the historical involvement of religion with American government. Burger concluded that the secular purpose was to celebrate Christmas and depict the origins of the holiday, and that this was permissible.

The Court reversed course in the 1989 decision, recognizing the inherently religious nature of a nativity scene in County of Allegheny v. American Civil Liberties Union. Two different settings were ruled on – a nativity scene in a stairwell, and a holiday display with a Christmas tree, menorah, and a sign saluting liberty. The Court upheld the holiday display because it involved multiple faiths and therefore did not endorse any particular one. The nativity scene alone, however, was struck down because it gave the appearance of endorsing only Christianity. The Court voted 5-4 that the nativity scene violated the Clause, while voting 6-3 that the holiday display was acceptable. The conservatives Justices on the Court at that time, including Rehnquist and Scalia, argued that both displays were acceptable.

The conservative members of the Court argued the same in later cases regarding religious displays on government property, believing that government should accommodate religion. Although the Court narrowly struck down Ten Commandments displays in courthouses in McCreary County, Kentucky v. ACLU of Kentucky, it also voted 5-4 to uphold a Ten Commandments statue next to the Texas Supreme Court. The swing vote in these decisions, Justice Breyer, determined that the historical significant and context of this particular monument in Texas showed that the government was not endorsing religion. This line of reasoning is very similar to that of the Capitol Square Review and Advisory Board v. Pinette, which focuses on what a reasonable observer familiar with the context would think about the monument.
 Capital Square Review and Advisory Board v. Pinette (1995)Lynch v. Donnelly (1984)County of Allegheny v. American Civil Liberties Union (1989)


McCreary County v. American Civil Liberties Union (2005)

Prayer in Governmental Proceedings Important Cases
The Court has upheld the use of legislative chaplains starting legislative sessions with a prayer. In Marsh v. Chambers, the Court considered the constitutionality of a state legislature using a minister to begin each session with a prayer. The Court avoided the Lemon test and instead focused on the historical background, determining that legislative sessions opening with prayer was deeply embedded in the history and tradition of the county. After establishing this, the Court held that this tradition held no threat to the Establishment Clause and was constitutional.Marsh was decided in 1983, 6 years before the Court decided County of Allegheny v. American Civil Liberties Union. Additionally, the prayer in Marsh had been changed by the minister giving it to make it non-denominational, thereby reflecting a broader variety of faiths. Some debate existed as to whether or not a prayer from only one religion could be given at a legislative session without violating the clause.In a 5-4 ruling in the 2014 case Town of Greece, NY v. Galloway, the Court held that a Christian prayer before a town meeting did not violate the Establishment Clause. The majority concluded that since this was within a tradition of the United States it was permissible. The Court majority determined that this prayer did not compel or pressure others attending the town meetings, and that the prayer and religious leaders leading it simply represented the predominantly Christian demographics of the town. As long as the town did not discriminate against others wishing to lead the prayer, or use the prayer in a way outside of a ceremonial introduction, it did not violate the Establishment Clause.


The vote split 5-4, with all the Catholic and conservative Justices making the majority, while the liberal and non-Catholic Justices dissented. The dissenters argued that the case was different from Marsh – the local government in Greece involved interaction with community members instead of just legislators, the prayer was of only one denomination, and the prayers were directed at the residents rather than the legislators. Additionally, the dissent criticized the lack of any effort by or the majority to require more diversity – religious minorities in the town risked exclusion and pressure.

 Marsh v. Chambers (1983)Town of Greece v. Galloway (2014)

The Right to Bear Arms

The Right to Bear Arms Important Cases
The debate over gun control in the United States is one that reaches far back into English law. Though the 2nd Amendment certainly codifies some right relating to gun ownership, the text of the amendment is so vague (in some ways, intentionally), that the precise line that delineates what the government may or may not regulate with regard to guns has always been somewhat unclear.One underlying theoretical question is this: was the amendment designed to protect private, individual gun ownership, or the possession of guns by state-run militias? At first glance, the amendment’s purpose seems wrapped up in militias. However, despite that seeming explicit connection, the Supreme Court has repeatedly rejected the idea that there is no individual right to possess firearms. In the early case of Presser v. Illinois (1886), the Supreme Court stated that the right to bear arms was not necessarily a group right. Instead, the Court held that a law was constitutional provided it did not interfere with the individual right. The Court recently reaffirmed the individual right to bear arms in District of Columbia v. Heller (2008).Still, despite the establishment of the individual right to bear arms and the amendment’s insistence that the right “not be infringed,” the Supreme Court has repeatedly recognized instances where governments are permitted to regulate gun ownership, at least to some degree.


First, it should be noted that – though the 2nd Amendment is part of the Bill of Rights, and originally applied merely to the federal government, it has been incorporated into the 14th Amendment and is now also binding on state governments. The very recent case of McDonald v. Chicago (2010) confirmed the incorporation.


That issue aside, the Court has acknowledged qualifications to the 2nd Amendment. In United States v. Miller (1939), the Court upheld the National Firearms Act of 1934 as constitutional. The act required owners of certain types of guns (e.g., some models of 12 gauge shot gun) to register the weapons. The plaintiffs asserted that this violated the 2nd Amendment. But the Court rejected that argument. Though Miller has actually left a good deal of confusion in its wake (the Court’s reasoning somewhat contradictorily reaffirmed the individual right to bear arms while emphasizing the importance of militias). But regardless, the Court was unanimous: gun regulations are not necessarily all unconstitutional.

 Presser v. Illinois (1886)

United States v. Miller (1939)

District of Columbia v. Heller (2008)

McDonald v. Chicago (2010)

The Quartering of Soldiers

The Quartering of Soldiers Important Cases
The 3rd Amendment, though once a very important right among the guarantees of free societies, has thankfully been mostly relegated to the reams of history. The text of the amendment reads as follows: “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” To be sure, it only means that government cannot force you to house a soldier if you don’t want to do so.The enforcement of this amendment has not had very many applications, as the Supreme Court has never had to render a government action unconstitutional as a violation of its requirements. The forced housing of soldiers, it seems, has proven itself to be an old-world problem. Still, occasionally, the Court does mention the amendment when it lists rights afforded by the Constitution. Notably, in Griswold v. Connecticut (1965), the majority used the amendment, among others, to bolster its argument for the existence of an implied fundamental right to privacy. Griswold v. Connecticut (1965)

Unreasonable Searches and Seizures

Unreasonable Searches and Seizures Important Cases
The 4th Amendment, fundamentally, is concerned with privacy. A person’s space – either in terms of possessions or body – cannot be intruded upon without justification. As stated in the amendment, a search or seizure must not be ‘unreasonable.’For example, in Weeks v. United States (1914) the Supreme Court unanimously asserted that a person’s possessions could not be seized from a private residence unless the police had a warrant. A warrant is a document issued by a court after evidence is put forward that shows that there is ‘probable cause’ to perform the search. The ‘probable cause’ standard is considered to be something more than a ‘reasonable suspicion.’ But, obviously, even probable cause is still not enough to confirm guilt. It is often vague and unclear as to when probable cause exists. As such, the law surrounding the 4th Amendment has continued to shift over the decades, as definitions have changed and exceptions have been carved out.Indeed, even the definition of a “search” has seen modifications over the years. In Olmstead v. United States (1928), for example, the Supreme Court rejected the notion that electronic surveillance – by wiretapping phones – constituted a search. But in Katz v. United States (1967), the Court reversed this precedent. Recalling the purpose of the 4th Amendment – to assure citizens of their expected privacy – wiretapping was brought under the umbrella of a search. A warrant is now required for these actions as well (though, today, the federal government does engage in warrant-less wiretaps within the United States for the purpose of combating terrorism – though the Supreme Court has yet to weight in on the constitutionality of these potential ‘searches’).4th Amendment analysis often is involved in issues of police brutality and excessive force as well. An arrest of a person can be considered a seizure or intrusion upon that person’s body. The Court dealt with exactly this kind of analysis in the 1989 case Graham v. Connor. Police officers detained and arrested a man they saw running out of a convenience store while they questioned the store clerks to make sure nothing had been stolen. The man claimed he was diabetic and having an insulin reaction, and that he was hurrying to return to a friend’s house to get the necessary means to stop his reaction. The police ignored his repeated requests regarding his condition, and he suffered injuries as a result while waiting to determine nothing illegal had happened in the store. The man brought a lawsuit alleging that this violated his 4th and 14th amendment rights. The lower courts applied a test that analyzed the intent of the police officers, and dismissed the plaintiff’s claims when they decided that the police did not have a “sadistic” or “malicious” intent in keeping him detained.The Supreme Court disagreed and vacated the lower courts decisions. In cases involving excessive force violations of the 4th amendment, the Court determined that a “reasonableness” standard should be used rather than subjective intent test. This standard is easier for plaintiffs to prove. Additionally, this test must be applied through the 4th Amendment itself, rather than the Due Process Clause or other amendments. However, the Court also made sure to mention that this analysis must take into account the fact that police officers are frequently required to make fast decisions regarding their safety, and therefore this reasonableness must be viewed from the perspective of a “reasonable officer” at the scene.The modernization of 4th Amendment protections has continued in the 2014 decision Riley v. California. The Supreme Court ruled unanimously that police need a warrant in order to search the contents of a cellphone. The government argued that cell phones could be searched upon the arrest of an individual, comparing this to the legally acceptable search of a prisoner’s pockets. The Court acknowledged that given the immense amount of data stored about a person on a cell phone, searching a phone was instead far more similar to (and perhaps even worse than) searching a person’s house.Still, not all searches require warrants or even probable cause. First, police officers routinely pull individuals over without warrants. Often, the facts surrounding the pull-over or the arrest constitute probable cause. If a police officer actually sees a person using drugs, for example, there is obviously ‘probable cause’ for an arrest – and the officer need not wait for a warrant to do his or her job. However, there are instances when police may perform searches even without probable cause at all, and with the lesser (though still somewhat vague) standard of ‘reasonable suspicion.’ For example, in Terry v. Ohio (1968), the Supreme Court considered a search that police officers had conducted. The officers had patted down individuals walking on the street that they felt were exhibiting suspicious behavior. It turned out that the individuals were, in fact, carrying illegal weapons. But the defendants claimed that those weapons were found through an unconstitutional search: the officers did not have probable cause to think that the men were carrying weapons, and the defendants sought to suppress whatever the officers may have found through that search. The Court, however, rejected this argument and acknowledged that on-the-job police officers need to be permitted some amount of leeway in order to properly do their jobs. The facts of the case made the search sufficiently reasonable. As long as the search was not merely conducted on a ‘hunch,’ it did not violate the 4th Amendment.


As an aside, other exceptions to needing a warrant for a search have been established as well. For example, in New Jersey v. T.L.O. (1985), the Court upheld a search performed in a school by an administrator without a warrant. Students can be searched provided there is at least reasonable suspicion.

 Weeks v. United States (1914)

Olmstead v. United States (1928)

Mapp v. Ohio (1961)

Katz v. United States (1967)

Terry v. Ohio (1968)

New Jersey v. T.L.O. (1985)

Graham v. Connor (1989)

County of Riverside v. McLaughlin (1991)

U.S. v. Jones (2012)

Florida v. Harris (2013)

Missouri v. McNeely (2013)

Maryland v. King (2013)

Fernandez v. California (2013)

Riley v. California (2014)

Heien v. North Carolina (2014)Florida v. Harris(2013)Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC(2012)

Smith V. Maryland(1979)

Harper v. Virginia State Board of Elections(1966)

Harman v. Forssenius(1965)

Breedlove v. Suttles(1937)

Fernandez v. California(2014)

Scott v. Harris(2007)

Brady v. Heien(2014)

Delaware v. Prouse(1979)

Heien v. North Carolina(2014)

King v. Burwell(2014)


Rodriguez v. United States(2015)

Due Process

Please Visit 14th Amendment

Eminent Domain

Introduction Important Cases
Eminent domain – the idea that a government has the authority to take private land for ome public purpose – is a long-standing accepted tradition in common-law countries (those whose legal systems stem from England). Justifications for this power include promoting the rights of the many over those of individual landowners, working toward the common good, and the inherent supremacy of the government as a sovereign entity with the ultimate authority over property.

But in the United States, the 5th Amendment does provide some measure of protection to private individuals whose land has been taken by the government: “nor shall private property be taken for public use without just compensation.” The courts have interpreted this right to require the landowner be given notice and afforded the right to a hearing before his or her land can be taken, or “condemned.” At this hearing the court determines the propriety of the public use and the amount of compensation that can be considered just.
 
The Broadening of Public Use Important Cases
Though the government is conceptually only supposed to take private property for so-called “public use,” the contours of what is considered public use have been considerably broad over the years. Ultimately, “public use” has been transmuted into a more vague “public purpose” test. This has been evident in both state and federal courts. For example, in the famous case of Poletown v. City of Detroit (1981), a Michigan court allowed Detroit to take over an entire neighborhood and transfer the land to another private entity, General Motors. The argument was that ‘What’s good for GM is good for Detroit.’ In other words, as opposed to private land being taken from private landowners and placed in the hands of the public, it was being placed in the hands of another private entity. But the Michigan court permitted this because ‘economic revitalization’ of this area was seen as for the common good.


This expansion of “public use” has been acknowledged and followed in the U.S. Supreme Court as well. For example, in Berman v. Parker (1954), the Court permitted the government of Washington, D.C. to take land from private individuals and given it to private developers to make way for economic revitalization. In Hawaii Housing Authority v. Midkif (1984), the Court also upheld the Hawaii legislature’s break up of privately held land and redistribution of this land to other tenants – in order to break up what had essentially become a land oligopoly. It was private to private, but it was upheld as a public benefit. In the recent and high profile case of Kelo v. City of New London (2005), the Court again held that takings for ‘economic revitalization’ were permissible no matter that the government was taking private property and giving it directly to another private entity. Kelo was controversial because scholars and legal practitioners suspected that the Court would overrule its earlier precedents and tighten the public use test. However, it did not. ‘Public use’ remained the broad ‘public purpose.’

 Berman v. Parker (1954)

Hawaii Housing Authority v. Midkif (1984)

Kelo v. City of New London (2005)
Implicit (Regulatory) Takings Important Cases
Sometimes, a government may pass a law which does not directly and explicitly take property away from a private landowner – but the law so harshly affects the land that courts view it as an implicit, or regulatory, taking. These sorts of takings, however, are more difficult to ascertain, and over the years, the Supreme Court has described several different tests for determining if a law can be considered so harsh that it essentially ‘took’ a person’s private land away.


One of the most prominent tests that courts use is the so-called ‘reasonable return test,’ which was first laid out by the Supreme Court in Penn Central v. City of New York (1978). In that case, New York City had prevented the owner of the Grand Central Station train terminal from building atop the iconic station. The government did not want to damage or change the historically relevant building. But the company that sought to build sued the city – claiming that it was being unfairly prevented from using its own land as it saw fit. Tall buildings are extremely valuable in Manhattan, especially in the area near Grand Central. Essentially, the owner claimed, the law was “taking” their land away. But the Supreme Court rejected this argument. Instead, it held that provided the owner still maintained a ‘reasonable return’ on profits from the building, no taking had occurred. The Court felt that the income from Grand Central Station was more than enough to constitute reasonable return.

 Hadachek v. Sebastian (1915)

Pennsylvania Coal Co. v. Mahon (1922)

Penn Central v. City of New York (1978)

Lucas v. South Carolina Coastal Council (1992)

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002)

Rights of Criminal Defendants

Grand Juries Important Cases
The relevant text of the 5th Amendment reads as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Stated simply, this means that (provided the military exception does not apply) a person cannot be indicted without a grand jury.

An indictment is the formal charge, or accusation, that is needed before a person can stand trial for a crime. A grand jury, then, consists of a group of people chosen from the community which is responsible for deciding whether or not the accusation has merit. It should be noted that it is not the grand jury’s job to decide whether the accused is guilty or innocent. Rather, the jury decides whether there is so-called ‘probable cause.’ The term ‘probable cause’ shows up in several distinct legal contexts. Here, it means that there must be some minimum threshold that a prosecutor must show before a person can be formally indicted for a crime.

As an aside, current federal rules (grand juries exist in state courts as well), a grand jury must consist of 16-23 jurors.
 
Double Jeopardy Important Cases
Among the 5th Amendment’s guarantees is that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Generally, this means that a person accused of a crime cannot be put on trial for that crime more than once. However, this one statement is a vast oversimplification. The Supreme Court, reading into the language of this clause and interpreting this right over the years, has reached several distinct conclusions and qualifications regarding the protection against ‘double jeopardy.’


Importantly, the entire guarantee only applies within one court system. Were the United States to be made of one system, this clause would apply throughout the country and in any court. However, the United States is exactly that: an alliance of sorts between several states, or sovereigns. The federal government is one court system, and the states are each their own individual court systems. Therefore, even if a person could not be prosecuted a second time in federal court after having already stood trial in another federal court, he could be prosecuted in state court – and vice versa. In a stark example, in United States v. Lara (2004), the Supreme Court held that Native American tribal courts were also separate sovereigns. Therefore, double jeopardy didn’t apply when the defendant was charged in federal court after already having been charged in tribal court.


However, if a defendant is put on trial in one court system, he or she may not be subjected to another trial within that same system if the underlying alleged crime is the same. For example, in Ashe v. Swenson (1970), the Supreme Court examined a prosecution against someone accused of robbing someone at a poker game. However, as it happened, the accused was already acquitted for the robbery with regard to a different person present at that exact same poker game. In other words, a court had already concluded that this defendant was not the thief. It didn’t matter that the victim was different in the second case. The issue had already been litigated.


Still, additional exceptions do exist to the double jeopardy doctrine. For example, the text of the amendment is explicit that what may not happen twice is a defendant being twice subjected to a threat against “life and limb.” Obviously, not all trials threaten life and limb. Criminal trials – in which the accused could go to jail or even be given the death penalty – falls under this umbrella. However, in civil trials, such “punishments” are not at stake. In general, civil trials are between two private parties, and do not involve a person being accused of a crime. Therefore, as a general rule, a defendant on trial for some crime may later be sued in civil court for the same action. Similarly, there do exist some government-related consequences that also do not threaten “life and limb.” In United States v. Ursery (1996), for example, the Supreme Court held that the government could prosecute someone for producing marijuana – even after initiating a proceeding against the defendant to seize his land. The land seizure did not count as a threat to life and limb. Therefore, it was not unconstitutional for him to be later prosecuted. There was no double jeopardy.

 Ashe v. Swenson (1970)

United States v. Ursery (1996)

United States v. Lara (2004)
Self-Incrimination Important Cases
The right to not have to ‘self-incriminate’ is perhaps the most widely well-known of the 5th Amendment’s guarantees. A defendant taking a stand at a trial and “pleading the 5th” is fairly common in pop culture depictions of courtrooms. The time-of-arrest Miranda warnings, where a police officer explains that the person being arrested has “the right to remain silent” also stems from the 5th Amendment. Broadly speaking, this right is as follows: a person cannot be forced to disclose information that would lead a court to find against that person.


In general, the right against self-incrimination is practiced in a criminal setting. In other words, a prosecutor accuses a defendant of a crime and the defendant refuses to testify against himself in his trial. Importantly, this refusal may not be used against the defendant in court. Meaning, the prosecutor or judge is not allowed to tell the jury that the defendant’s refusal to testify is at all an inference of guilt. For example, in Griffin v. California (1965), the defendant had been accused and convicted of murder. But at the trial, the court allowed the prosecutor to suggest that the defendant’s refusal to testify was indicative of his guilt. The Supreme Court, however, reversed the conviction – stating that this inference was a violation of the defendant’s 5th Amendment rights. Aa refusal to testify is not only unable to be used to determine guilt, but in Mitchell v. United States (1999), the Court held that it couldn’t even be used – after already determining guilt – to aid in the determination of the sentence.


However, the right against self-incrimination doesn’t only exist in criminal courts. A party in a civil lawsuit may also refuse to testify to his or her own detriment. As early as 1924, in McCarthy v. Arndstein, the Supreme Court has held that the constitutional privilege against self-incrimination applied to civil cases as well. However, the privilege does not extend as far as in criminal cases. The person invoking the privilege in a civil case may be subject to inferences based on his or her refusal to testify.


Also, obviously, the privilege has been further qualified over the years. For example, in United States v. White (1944), the Supreme Court held that it didn’t apply to groups and organizations – and only to individuals. In the famous Miranda v. Arizona (1966), the Court held that the privilege was not limited to the courtroom – but applied to when a police officer takes someone into custody as well, giving rise to “the right to remain silent.”

 McCarthy v. Arndstein (1924)

United States v. White (1944)

Griffin v. California (1965)

Mitchell v. United States (1999)

Speedy and Public Trials

Speedy and Public Trials Important Cases

In addition to the requirement that trials not be needlessly and prejudicially lengthy, the Constitution also requires that they be public. However, though the text of this provision may appear to be absolute, the Supreme Court has qualified this right in certain contexts. The question of media access to a courtroom, especially, has been the subject of much contention. The Constitution may endorse public trials – but a defendant also has the right to a fair trial. In Sheppard v. Maxwell (1965), the Supreme Court ruled that a defendant on trial for murder had not received a fair trial because of the incredibly hostile publicity toward him. So to in Estes v. Texas (1965). Thus, in later cases such as Waller v. Georgia (1983) and Press-Enterprise Co. v. Superior Court (1986), the Supreme Court explicitly qualified the right to a public trial by allowing the publicity of a trial to be limited in cases where such public access would unfairly prejudice the defendant.

 Sheppard v. Maxwell (1965)

Estes v. Texas (1965)

United States v. Marion (1971)

Barker v. Wingo (1972)

Waller v. Georgia (1983)

Press-Enterprise Co. v. Superior Court (1986)

Doggett v. United States (1992)

Southern Union Company v. United States (2012)Hurst v. Florida
Impartial Juries Important Cases
The 6th Amendment also guarantees an impartial jury in criminal cases. Originally, the jury requirement of the Constitution was interpreted by the Supreme Court as the same as was required under English common law. In other words, the Constitution was merely codifying the English concept of a jury in the Constitution, not inventing a new framework. Therefore, in earlier cases like Thompson v. Utah (1898) and Patton v. United States (1930), the Supreme Court held that a jury absolutely had to have exactly twelve members – as was the practice in England. In Thompson, for example, Utah had replaced the twelve-member jury with an eight-member jury (like many other amendments, the 6th has also been incorporated into the 14th Amendment and applied to the states). Utah asserted that eight jurors could be just as impartial and capable of a group as twelve. However, the Court stated that “the wise men who framed the Constitution of the United States and the people who approved it were of opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of twelve jurors.”


However, despite this insistence on adherence to English precedent, this requirement has since been relaxed. In Williams v. Florida (1970), the Court ruled that Florida’s practice of using six-member jurors was constitutional (though in Ballew v. Georgia (1978), the Court also held that six was the constitutional minimum – a jury of five members was inadequate).


Also, in addition to the number of jurors being a constitutional requirement under the 6th Amendment, so is the makeup of the jury. Today, a jury must be comprised of a cross section of the community. When choosing a jury, the lawyers from either side may use what are known as peremptory challenges. This is when a lawyer rejects a juror without having to give any reason whatsoever. This authority gives broad leeway to each party to make decisions without having to reveal underlying rationales. But the Supreme Court has placed limits on these challenges. For example, in Batson v. Kentucky (1986), the Court held that a juror could not be stricken simply because he or she was African American. In Taylor v. Louisiana (1975) the Court held of a similar qualification for the exclusion of women as well. Finally, as a footnote, it is worth mentioning that such exclusions not only violate the 6th Amendment right to an impartial jury made up of a cross-section of the community – but they also violate the Equal Protection Clause of the 14th Amendment.

 Thompson v. Utah (1898)

Patton v. United States (1930)

Williams v. Florida (1970)

Taylor v. Louisiana (1975)

Ballew v. Georgia (1978)

Batson v. Kentucky (1986)
Confrontation Clause Important Cases
The so-called ‘Confrontation Clause’ is the requirement that a party be given the chance to cross-examine a witness at a criminal trial. In other words, if the person from whom the information came is unavailable to be cross-examined – then that evidence is not admissible in court. For example, in Pointer v. Texas (1965), a witness had testified against the defendant at an earlier proceeding where the defendant’s counsel was not present to cross-examine him. Then, at trial, the prosecution attempted to use the transcript of the testimony as evidence – and the witness had since moved away and was not personally asked to be present at trial. The Court held that this testimony, then, could not be admitted – to do so would be a violation of the Confrontation Clause.


This right has been qualified in extraordinary circumstances, however. For example, in Maryland v. Craig (1990), the Court permitted the child victim of sex abuse to testify via one-way closed-circuit camera. In other words, at trial, while the jury could see the child, the child could not see the defendant or the proceedings. This was done to protect the already emotionally damaged victim from further trauma. Moreover, the defendant’s counsel did have an opportunity to cross-examine the witness. Therefore, the Court held this to be constitutional.


In recent years, the Confrontation Clause has been strengthened further still. For decades, one of the foundational principles of the Confrontation Clause was that, if an earlier piece of testimony could be shown to be reliable, then it could be admitted at trial regardless of the clause. This principle of reliability, asserted by the Court in Ohio v. Roberts (1980), was explicitly rejected in Crawford v. Washington (2004). In Crawford, the Court held that reliability was essentially irrelevant. Under the Confrontation Clause, a witness must be available for cross-examination.

 Pointer v. Texas (1965)

Ohio v. Roberts (1980)

Maryland v. Craig (1990)

Crawford v. Washington (2004)Padilla v. Kentucky(2010) 
The Right to Counsel Important Cases
The right of a defendant to have his or her own representation at a criminal trial is quite broad. In Powell v. Alabama (1932), the Court held that a defendant on trial for a crime that could lead to the death penalty was constitutionally entitled to a lawyer whether or not that defendant could afford one. In Johnson v. Zerbst (1938), the Court expanded this to all federal criminal cases, regardless of potential sentence. In Gideon v. Wainwright (1963), the Court extended this requirement to state criminal cases as well (though in Scott v. Illinois (1979), the Court did qualify this right by holding that a defendant is not entitled to a court-appointed attorney if he or she is accused of a misdemeanor that would not result in time spent in prison). Powell v. Alabama (1932)

Johnson v. Zerbst (1938)

Gideon v. Wainwright (1963)

Scott v. Illinois (1979)

Right to a Jury Trial in Civil Suits

Right to a Jury Trial in Civil Suits Important Cases
Unlike in a criminal case (for criminal juries, see the 6th Amendment), a civil case cannot end where one party goes to prison. Instead, civil suits are cases where one party is asserting that the other party owes a certain amount of money, the so-called “amount in controversy.” According to the 7th Amendment, then, provided the amount in controversy is over $20 (though today’s practical rules do not always permit access to the federal courts for an amount that small), parties to a case have the right to have their case heard by a jury. However, the language of the 7th Amendment is key. The right to a jury is “preserved.” This actually means that the Constitution was preserving whatever rights were available to litigants in civil trials under English law as it was before the Constitution. English law had some particularities that are still relevant today. Under English law, a party had a right to a civil suit at law but not in equity. The distinction is subtle and, in modern law, much less discernible. But for the sake of simplification, suits at law involved specific areas of the law that had concretely developed in early English society. Suits in equity involved areas of the law that were less defined and required more case-by-case adjudication, and more tailored remedies, than cases at law. Today, generally, areas of the law that are descendants of old suits at law do trigger the 7th Amendment. But areas that stem from suits in equity do not.


Additionally, the 7th Amendment includes a requirement that the jury be the last word in facts. In other words, while a judge has the responsibility of understanding and explaining and ruling on matters of law, juries decide things like credibility and who did what at what time. As such, today, it is much more difficult for a judge or a higher level court to overturn a fact decision by a jury than to overturn a decision of law by a judge.

 The Justices v. Murray (1869)

Slocum v. New York Insurance Co. (1913)

Dimick v. Schiedt (1935)

Galloway v. United States (1943)

Pernell v. Southall Realty (1974)

Markman v. Westview Instruments, Inc. (1996)

Feltner v. Columbia Pictures Television, Inc. (1998)

Prohibition Against Excessive Bail

Prohibition Against Excessive Bail Important Cases
Bail is money a defendant can pay to the court in exchange for being released from jail before a trial. Judges set the amount of bail based on a defendant’s worth, as well as in consideration of the crime. If paid, the defendant is set free, and the money is returned when the defendant shows up for the trial. Bail is both an incentive for a defendant to not flee before a trial, as well as a way for pre-trial defendants to avoid jail time.


Thus, according the 8th Amendment, bail may not be overly excessive. For example, in Stack v. Boyle (1951), a number of individuals were arrested, accused of being Communist collaborators. The court set bail for each defendant at $50,000, and the defendants petitioned the court to reduce the bail – producing evidence that they could not afford such a large sum. Eventually, the case went before the Supreme Court, which held that – considering the alleged crime and the defendants’ resources – the bail was unconstitutionally excessive.


Still, bail does not have to be offered in every single instance. For example, in United States v. Salerno (1987), the Supreme Court agreed that if a defendant could be shown to be dangerous to the community at large, he did not have to be offered the opportunity to be released from jail before a trial.

 Stack v. Boyle (1951)

United States v. Salerno (1987)
Introduction to the Prohibition Against Cruel and Unusual Punishment Important Cases

As a footnote, it is also worth mentioning that, like most of the amendments in the Bill of Rights, the 8th Amendment does apply to the states (both the cruel and unusual punishment clause as well as the excessive bail clause), even though these amendments were originally only constraints against the federal government. Today, these amendments have been incorporated into the 14th Amendment, which does apply to the states. The 8th Amendment, too, applies to the states through the 14th.

 
The Death Penalty Important Cases
Today, while some states choose to give the death penalty in certain instances, for a time, it was unclear if the death penalty was even constitutional. In Furman v. Georgia (1972), through several different convictions, the Court reviewed the death penalty in general. While the Justices could not come to a majority consensus on their reasoning, they were able to decide that all of the convictions, and subsequent death penalty sentences, were unconstitutional under the 8th Amendment. The Court held that the death penalty was being carried out in an inconsistent manner – often with biases toward African Americans. This decision had the effect of temporarily stopping the carrying out of the death penalty throughout the United States. For a time, it was unclear whether states would attempt to reform their systems to create a fairer death penalty – or whether the Furman decision would stand for the death knell of the death penalty in the United States.


Within a few years, however, states did make changes. The death penalty again wound its way back to the Supreme Court in Gregg v. Georgia (1976)/ In Gregg, the state of Georgia had changed its death penalty statute from requiring that the jury decide guilt and innocence at the same time as the sentence to requiring a so-called bifurcated trial. In the first stage, a jury decides whether or not the defendant is guilty. In the second stage, the jury decides the sentence. The Court found this measure sufficient to remedy the 8th Amendment concerns. The death penalty could be constitutional if practiced correctly and not arbitrarily. This case served to lift what had become, essentially, a moratorium on the death penalty throughout the country.


Still, the scope of the death penalty has continued to contract. As is explained below, it is no longer permitted for defendants under the age of 18. In Atkins v. Virginia (2002), the Court held that it is also not permitted for defendants with mental disabilities. In Coker v. Georgia (1977), the Court held that the death penalty could not be given for the rape of a woman. In Kennedy v. Louisiana (2008), the Court went a step further and decided that it could not even be given for the rape of a child. Instead, today, the death penalty is only allowed in cases where either the crime resulted in the death of a victim, or the crime is “against the state” (treason and espionage, for example).

 Furman v. Georgia (1972)

Gregg v. Georgia (1976)

Coker v. Georgia (1977)

Atkins v. Virginia (2002)

Kennedy v. Louisiana (2008)
Juvenile Sentences Important Cases
The Supreme Court cases involving the juvenile death penalty effectively illustrate the Court’s ability to adapt with changing social norms regarding what constitutes cruel and unusual punishment. In Thompson v. Oklahoma (1988), the Court addressed the conviction of a 15-year-old in Oklahoma. At trial, the jury found the boy guilty of murder and sentenced him to death. However, the Court reversed this judgment, finding that the death penalty for children under the age of 16 was an unconstitutional violation of the 8th Amendment. The Court upheld this line one year later in Stanford v. Kentucky (1989), when it specifically allowed the death penalty for those aged 16 and 17.


However, this standard has not held up. Recently, the Court again addressed the death penalty for juveniles in Roper v. Simmons (2005). There, the Court rejected its earlier decisions in Thompson and Stanford, and held that the 8th Amendment prohibited all death penalties for under the 18 of 18.


Moreover, the Court went a step further in Graham v. Florida (2010), when it held that even the punishment of life without parole for those under 18 constituted cruel and unusual punishment as well.

 Ingraham v. Wright (1977)

Thompson v. Oklahoma (1988)

Stanford v. Kentucky (1989)

Roper v. Simmons (2005)

Graham v. Florida (2010)

Jackson v. Hobbs (2012)
Incarceration Important Cases

For example, in the early case of Weems v. United States (1910), a man was sentenced to 15 years in prison in the Philippines. At the time, the Philippines was an American colony, having been won by the United States in the Spanish-American War of the late 19th century. This prisoner was sentenced as a result of his fraudulently falsifying documents, obviously a crime. The Court, however, held the sentence to be cruel and unusual. Not only was 15 years in prison considered excessive for the crime in question, but the sentence came with an added ‘hard labor’ requirement. On balance, then, this sentence was held to be wildly disproportionate, and thus unconstitutional.

 Weems v. United States (1910)

Robinson v. California (1962)

Hutto v. Finney (1978)

Solem v. Helm (1983)

Harmelin v. Michigan (1991)

Another Source of Implied Rights

Another Source of Implied Rights Important Cases
The text of the Ninth Amendment may at first appear to be quite broadly protective of rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Meaning, there are rights that exist apart from the ones explicitly mentioned in the Constitution. We know, conceptually, that this statement is accurate. There are, indeed, rights guaranteed by the Constitution that are not expressly laid out in the text of the document itself. There are implied rights, as it were. However, perhaps quizzically, the Ninth Amendment is not the source of those rights. Instead, implied fundamental rights, as they have been called, are actually found within the first section of the 14th Amendment, or in the Due Process Clause to be specific (and it is also noteworthy that the Ninth Amendment is not the only somewhat more obvious place to ‘house’ implied rights: see Privileges or Immunities Clause).


As such, as the Supreme Court’s interpretation of the Constitution has developed, it is the Due Process Clause that has become fatter and fatter, while the Ninth Amendment has become little more than a eloquent truism.


However, though this may be the overwhelming majority approach to implied rights, that is not to say that some Justices (and other scholars) have not voiced the opinion that the Ninth Amendment is the rightful place from which to imply fundamental rights. For example, in Griswold v. Connecticut (1965), Justice Arthur Goldberg wrote a concurrence (an opinion where a Justice or Justices agree in the result of the majority but not its reasoning) expressing his opinion that the right to privacy, and other rights implied by the word “liberty” found in the 5th Amendment and the 14th Amendment (Section 1) is not limited to guaranteeing only the Constitution’s express rights – because of the Ninth Amendment.

 Griswold v. Connecticut (1965)

Introduction

Introduction Important Cases
The 10th Amendment, written into the Constitution with the other amendments of the Bill of Rights, can at first blush appear to add something fundamental, namely, that any power a state has not given up through some textual provision in the Constitution, that state retains. However, this is not quite the sweeping restraint on federal power that many today desire it to be.Indeed, during the ratification process, James Madison himself referred to this amendment as “superfluous” and “unnecessary.” In other words, this amendment added nothing that was not already in place through the rest of the Constitution. It simply made a provision out of an already extant principle. This idea was all but codified in the Supreme Court’s decision in United States v. Darby Lumber Co. (1941), where the Court echoed this sentiment and declared the 10th Amendment, “but a truism.”


To be sure, there were those in Congress that wanted to make the 10th Amendment more than a gratuitous assurance to the states that the rest of the Constitution would be adhered to. The 10th Amendment, as it was written, states as follows: “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.” However, during the original debates on this amendment, there were those that wanted to add the word “expressly.” According to this approach, the amendment would have read, “The powers not expressly delegated to the United States…” This would indeed have rendered the 10th Amendment something incredibly significant. This would have prevented any implied powers of the federal government as the Court may infer from applying to the states. The federal government would then be powerless to act on and against the states unless that power stemmed from an express provision of the Constitution. This suggestion, however, only garnered support from one fifth of the members of Congress present at the time it was up for a vote.

 United States v. Darby Lumber Co. (1941)
Modern Scope Important Cases
The 10th Amendment, as mentioned, is generally considered to be nothing more than a stamp of approval on the system of government set up by the other provisions of the Constitution. However, it does stand for one particular principle: that the federal government, while it may preempt state action or encourage and incentivize state action, can’t force a state to use its own resources to comply with a federal regulation, statute, or program.The quintessential modern cases that illustrate this idea are New York v. United States (1992) and Printz v. United States (1997). In New York, the Court reviewed a Congressional program that used several different approaches to realize the goal of New York State complying with federal standards for radioactive waste. The Court held that certain pieces of that program, such as the federal monetary incentives for compliance, were constitutional. However, another piece, forcing N.Y. to take N.J.’s radioactive waste if certain deadlines were not met, was unconstitutional. This was so drastic a step that it was essentially the federal government compelling a state to comply with a federal mandate.


Similarly, in Printz, a federal program was put into place requiring certain background checks before guns could be purchased. But the federal government, instead of placing the responsibility and expense of this program with itself, mandated states to do the background checks. This was challenged in court, and like in New York, it was held unconstitutional.

 Steward Machine Co. v. Davis (1937)

New York v. United States (1992)

Printz v. United States (1997)

Reno v. Condon (2000)

Bond v. United States (2014)
The Treaty Exception Important Cases
Though it is only applicable under a narrow set of circumstances, an exception does exist to the 10th Amendment’s restriction on the federal government’s ability to compel a state to act in compliance with a federal act. In 1918, a treaty was signed with Great Britain, the Migratory Bird Treaty Act, to cooperatively protect certain endangered migratory bird species. However, this treaty did not simply place responsibility for compliance with the new regulations on the federal government, it forced states to act as well.The treaty, then, was challenged in Missouri v. Holland (1920). But here, the Court held that such compulsion was constitutional. As explicitly stated in the text of the 10th Amendment, what is reserved to the states are “powers not delegated to the United States by the Constitution.” However, states had delegated the treaty-making power to the federal government. The Supremacy Clause in Article IV of the Constitution, states as follows: “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”


The Court interpreted this to mean that at the ratification of the original Constitution in 1789, the states had not only given up their right to make international treaties, but states had given away their rights to object to being compelled to act in compliance with a treaty. Therefore, when the 10th Amendment was ratified, it did not apply to federal acts made pursuant to a treaty.

 Missouri v. Holland (1920)

Introduction: Chisholm v. Georgia (1793)

Introduction: Chisholm v. Georgia (1793) Important Cases
In the aftermath of the American Revolution, many debts were left unpaid. One individual, Robert Farquhar, sued the state of Georgia for money due to him. The state, however, refused to show up. It claimed that, as a sovereign entity, it could not be sued unless it explicitly agreed to be sued. This notion of sovereign immunity, in general, was not unfamiliar in American law. In the United Kingdom, the monarchs had long had this protection. By definition, the crown was the law. It was simply non-nonsensical for it to be brought to court under allegations that it violated the law. Georgia made the argument, therefore, that an individual citizen could not sue Georgia in federal court. Without Georgia’s consent, it asserted, the federal courts did not have the authority to adjudicate the case.However, the Supreme Court, in Chisholm v. Georgia (1793) rejected the idea that sovereign immunity extended to the individual states. Instead it ruled that Article III, the provision of the Constitution establishing the federal courts, essentially acted as a blanket waiver of state sovereign immunity. Meaning, by ratifying the Constitution, the states had actually given up whatever immunity they may have enjoyed previously. Chisholm v. Georgia (1793)
State Sovereign Immunity Important Cases
The result of Chisholm v. Georgia (1793) was the 11th Amendment. With the knowledge that the Constitution not only did not protect state sovereign immunity – but actually nullified it – the country quickly ratified this first post-Bill of Rights addition to the Constitution. It states as follows: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”In other words, Chisholm was superseded. Individual states could no longer be defendants in federal court in cases prosecuted by citizens from other states. 
Exceptions to the 11th Amendment: Waiver, Agency, and Congressional Abrogation Important Cases
The 11th Amendment, however, has never truly enjoyed the kind of sweeping effect it was, perhaps, meant to enjoy. In fact, today, states are regularly sued in federal court for a number of reasons.First, states can consent to be sued or waive their sovereign immunity. In fact, the Supreme Court has actually held that simply by invoking what is known as “removal jurisdiction” (a process in litigation by which parties seek to move a case from a state court to a federal court), a state automatically waives its sovereign immunity. In Lapides v. Board of Regents of University System of Georgia (2002), the Georgia public university system was brought to state court. But it voluntarily sought to remove the case to federal court. Therefore, it waived whatever immunity the 11th Amendment may have otherwise granted it.


Second, the 11th Amendment has been interpreted to only apply to states as states. In other words, when an individual sues a state officer, agent, or employee, it may do so. This exception is so powerful, that even where a state officer appears to be acting on behalf of the state itself, it may still be sued. In Ex parte Young (1908), the Attorney General of Minnesota was sued for carrying out a railroad-related law passed by Minnesota. The law itself was unconstitutional. The Court held that since, under the Supremacy Clause, the Constitution overrides state laws, a state official acting in the name of an unconstitutional state law is not acting on behalf of a state at all. The law is a nullity. Therefore, the individual is acting on his own. Mr. Young, the Attorney General, was able to be sued in federal court.


Third, and perhaps most significantly, Congress may – in some instances – override the immunity established by the 11th Amendment. Most often, this has meant that Congress can act within its authority to legislate under the enforcement provision of the 14th Amendment, and abrogate state sovereign immunity in states relating to that enforcement. For example, in Fitzpatrick v. Bitzer (1976), the Court examined a Congressional act giving individuals the power to sue states in federal court over violations of Title VII of the Civil Rights Act (which prohibits discrimination). Title VII was passed pursuant to the Equal Protection Clause of the 14th Amendment. The 14th Amendment, the Court held, was specifically passed to constrain state authority – to prevent them from being able to discriminate and to give the federal government the power to act toward that goal. The Court ruled that the 14th Amendment overrode the 11th Amendment, and the lawsuit provision of Title VII was therefore constitutional.


Obviously, even though Congress may abrogate 11th Amendment immunity when acting to enforce the 14th Amendment, if Congress itself does not act within its own authority to legislate under the 14th Amendment, then the abrogation of immunity is also unconstitutional. In other words, if Congress passes a law which it asserts is to enforce the 14th Amendment – but happens to step beyond whatever enforcement power is given to Congress by that amendment, then despite whatever abrogation of immunity Congress may have included in the law, no such abrogation is considered to have taken place.


The standard under which Congress has the authority to legislate to enforce the 14th Amendment is known as the Congruence and Proportionality Test. For the purposes of the 11th Amendment, the meaning of that test is only tangential (see the 14th Amendment, Section 5). However, by way of example, in Nevada Department of Human Resources v. Hibbs (2003), the Supreme Court held that Congress passed the Congruence and Proportionality Test in enacting the Family Medical Leave Act – and therefore, the abrogation of 11th Amendment immunity included in a provision of the FMLA was also constitutional. However, in Board of Trustees of the University of Alabama v. Garret (2001), the Court held that Congress allowing state employees to sue employers in federal court over the Americans with Disabilities Act (ADA) did not meet the Congruence and Proportionality Test, and was therefore unconstitutional.


Beyond the 14th Amendment, though, it is unclear as to whether other provisions of the Constitution also allow Congress to abrogate sovereign immunity. For example, in Seminole Tribe of Florida v. Florida (1996), the Court held that Congress did not have the authority to abrogate state sovereign immunity under its Article I powers. This ruling was again followed in Alden v. Maine (1999). However, in Central Virginia Community College v. Katz (2006), the Court held that Congress abrogating state sovereign immunity under the Bankruptcy Clause, a provision of Article I was constitutional.


Still, Congressional abrogation of state sovereign immunity is most often evident in 14th Amendment cases.

 Ex parte Young (1908)

Fitzpatrick v. Bitzer (1976)

Seminole Tribe of Florida v. Florida (1996)

Alden v. Maine (1999)

Board of Trustees of the University of Alabama v. Garrett (2001)

Lapides v. Board of Regents of University System of Georgia (2002)

Nevada Department of Human Resources v. Hibbs (2003)

Central Virginia Community College v. Katz (2006)

Presidential Elections Under the Original Constitution

Presidential Elections Under the Original Constitution Important Cases
The 12th Amendment is one of the more obscure provisions of the Constitution. However, it did have the practical effect of modifying the structure of presidential elections from how they were established under the original provision, Article II, Section 1, Clause 3. There, every elector in the Electoral College (the body set up to vote for the President based on their respective states’ choices for the winner) cast two votes for President. Whoever received a majority of the vote, won the presidency. Whoever came in second, became Vice-President. In the event no single person won a majority, the House of Representatives would choose the President from the top five contenders. 
The Election of 1800 Important Cases
The original system worked well enough in 1796, when John Adams beat Thomas Jefferson and became the second President. Both men ran for President; but Mr. Adams received a majority of the vote.

However, in 1800, something went awry. Again, both John Adams and Thomas Jefferson ran for President. But (as in the previous election) so did several others. Aaron Burr, for example, of the same party allegiances as Thomas Jefferson, may have only wanted to run for Vice-President. But the system did not acknowledge a separate campaign. Everyone running ran for President, and the second-place finisher was awarded the silver medal of the vice-presidency. This time, however, no majority contender arose after the Electoral College voted. Somewhat oddly, Aaron Burr and Thomas Jefferson were tied. The electors had towed their party lines so well, that each cast both of their votes for both Mr. Jefferson and Mr. Burr.

So, as was required by Article II, Section 1, Clause 3, the House of Representatives voted for the President from among the top five finishers in the election. But again, no clear winner emerged. So the House voted again,again, and again. It took 36 votes for a winner to finally be elected President: Thomas Jefferson. Though the election is gracefully known as the “Revolution of 1800,” in praise of the peaceful transfer of power from one party to another, the election was still tinged with the knowledge that the system had produced such intractable results.
 
Changes to Elections Under the 12th Amendment Important Cases
The Election of 1800 (see above) revealed several problems: it was too easy for no candidate to receive a majority of the vote; it was too complicated for individuals from the same party to win both the office of President and Vice-President (the original founders had, somewhat naively, tried to ignore the rising tide of party politics); and it was too embarrassing for the election to require so many rounds of voting.


Thus, the 12th Amendment was promulgated and ratified. It changed several things about the original structure of presidential elections (including establishing a date by which the House would need to choose a President – which, itself, was modified by the 20th Amendment). But, most significantly, it did the following:


First, electors in the Electoral College still cast two votes – but now, one vote was for President and another vote was for Vice-President. There no longer had to be the awkward potential for the party representative desiring the presidency and the party representative desiring the vice-presidency to wind up tied (or worse, switched). A party could now put forth what, today, is known as a “ticket,” where one person runs as the presidential candidate, and the other, as the vice-presidential running mate.


Second, instead of the House having choose from among five candidates in the event no person wins a majority, the House now chooses from among three candidates – drastically increasing the likelihood of one winning over 50% (and decreasing the likelihood of requiring multiple House votes).

 
Practical Relevance Important Cases
Arguably, the reason why the 12th Amendment is so seldom referenced is because only once since its ratification has the House of Representatives had to choose the President (see above). In the Election of 1824, Andrew Jackson won a plurality of the vote – but not a majority. Therefore, as was required by the 12th Amendment, the top three candidates were referred to the House of Representatives to choose the President.

In the House, however, Mr. Jackson lost (though he would go on to win the Election of 1828) to John Quincy Adams, who had come in second in both the popular vote and the Electoral College. Since that election, however, the House has not had to get involved.

A footnote to the 12th Amendment took place during the fairly recent Election of 2000. That contested election – between Al Gore and George W. Bush – is famous for several reasons related to the Constitution and the courts. Among those reasons, the 12th Amendment is not usually found.

However, a provision of the 12th Amendment (and an essentially identical provision in the original Constitution) known as the “Habitation Clause,” was used in at least one of the court cases surrounding that election. According to the Habitation Clause, the electors must case two votes (now, one for the President and the other for the Vice-President), “one of whom, at least, shall not be an inhabitant of the same state with themselves.” Meaning, an elector cannot vote for a President and Vice-President that both come from the same state as that elector. Arguably, this provision was designed to prevent state and local politics from too-harshly impacting this national election.

In the Election of 2000, however, George W. Bush and Dick Cheney were accused of transgressing the clause. Mr. Bush’s ‘habitation’ was certainly in Texas: he had been governor. But while Mr. Cheney had lived in Texas in the years leading up to the election, and was CEO of Halliburton, a large company headquartered in Dallas, he was a representative in Congress for the state of Wyoming, and had switched his license and voter registration – and put his house in Texas up for sale – some months before the election. Had the courts invalidated the Texas electors’ votes for Bush and Cheney, the already close election would have swung to the other side.

However, the court decided in favor of Bush and Cheney – as was the appeal. But still, for a brief moment, the 12th Amendment did have its day in court.
 

The Abolition of Slavery

The Abolition of Slavery Important Cases
The 13th Amendment is clear and limited: “Neither slavery not involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States of any place subject to their jurisdiction.” The federal government is charged with enforcing this guarantee: “Congress shall have power to enforce this article by appropriate legislation.”


Fundamentally, the 13th Amendment is about slavery. The first of the three amendments passed in the wake of the Civil War (known collectively as the ‘Reconstruction Amendments’), this simply codified the Emancipation Proclamation, that wartime declaration made by Abraham Lincoln in which he freed the slaves.


The history of litigation and Supreme Court opinions on this amendment have been similarly limited. Essentially, it bans things like slavery and forced labor which, though obviously no longer as widespread in the United States as before the Civil War, are still raised by human rights activists in the modern era. Still, the scope of the amendment is focused and directed.


It should also be noted that this amendment, unlike the 14th Amendment, for example, reaches private actors, and goes beyond only prohibiting slavery and involuntary servitude caused by government action.

 
Constitutionality of the Draft Important Cases
For example, in Arver v. United States (1918), also referred to as the “Selective Draft Law Cases” (because it was actually a consolidation of multiple cases on this issue), the Court examined whether the Selective Service, or mandatory military conscription (aka, the draft), was constitutional. The argument made by the plaintiffs in that case was that the Selective Service Act of 1917, authorizing conscription to raise an army in the face of World War I, was a violation of the 13th Amendment. The Court, however, rejected that assertion, calling military service, the “supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people.”


This notion of ‘duties’ incumbent upon the people is also echoed in an earlier case, Butler v. Perry (1916). There, the state of Florida required adult males to labor for the state and help with the building of roads and bridges. These “able-bodied” men could either work, or pay a $3 sum to get out of duty. But ignoring the mandate resulted in up to 30 days in jail or upwards of a $50 dollar fine. Here, again, the Court decided that “duties which individuals owe to the state” were not meant to be prohibited by the passage of the 13th Amendment. The Court held that Florida’s mandate was constitutional.

 Butler v. Perry (1916)

Arver v. United States (1918)
Badges of Slavery Important Cases
However, though the 13th amendment has historically been narrowly construed, the Supreme Court, from time to time, has allowed a broader reading of its guarantees. This broadening, including what are known as “badges of slavery,” originally stems from the Civil Rights Cases (1883) and Plessy v. Fergusun (1896) (see Equal Protection Clause for a more in-depth explanation of these cases and their impact). In the Civil Rights Cases and Plessy, the Court addressed the suggestion that the 13th Amendment should not only prohibit slavery, but allow Congress to prohibit other acts of discrimination that rose to the level of so-called ‘badges of slavery.’ While the majorities in these cases conceptually agreed that ‘badges’ and ‘incidents’ of slavery could be prohibited by Congress, practically, they ruled that such actions were really not much beyond slavery itself – meaning, acts of discrimination did not fall under the umbrella of the 13th Amendment.


Despite this, however, some 20th century cases have revived the idea of badges of slavery including some types of discrimination, and acknowledged this somewhat more expansive reading of the 13th Amendment. For example, in Jones v. Alfred H. Mayer Co. (1968), the plaintiff asserted that the defendants’ refusal to sell him a home solely on the basis of race was a badge of slavery and therefore unconstitutional under the 13th Amendment. There, the Court agreed.


Still, however, as the Equal Protection Clause of the 14th Amendment (Section 1) prohibits certain government classifications of suspect classes, including of African Americans – and additionally, states have passed many of their own anti-discrimination laws, the 13th Amendment is still rarely used (and rarely needs to be used) to fight discrimination.

 Civil Rights Cases (1883)

Plessy v. Ferguson (1896)

Jones v. Alfred H. Mayer Co. (1968)

Palmer v. Thompson (1971)

Memphis v. Greene (1981)

Enforcement of the Constitution

Enforcement of the Constitution (Congruence and Proportionality) Important Cases
The section of the 14th Amendment, similar to sections in several other amendments, is known as an “enforcement provision.” It has no substantive law unto itself. Rather, it provides the authority for Congress to make laws to uphold the other provisions of the amendment. The text of the section is as follows: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”


But while this statement may sound clear, it has required some judicial fine-tuning. In the first century after the passage of the 14th Amendment, the Supreme Court occasionally struck down Congressional actions for being outside the scope of what is covered by the other provisions. However, it was a recent case, City of Boerne v. Flores (1997), which today governs the test for whether Congress has acted within its authority to enforce the 14th Amendment.


In Boerne, the Court examined the passage of the Religious Freedom Restoration Act, a Congressional statute that was actually crafted in response to another Supreme Court case (Employment Division v. Smith (1990)), where the Court refused to invalidate a law prohibiting peyote use, even though its use was religious in nature for certain Native American rituals.


The RFRA tightened the judicial standard for examining alleged infringements on religious freedom. But the Court held this statute to be unconstitutional. By way of reminder, even though religious freedom issues are contained in the 1st Amendment, these amendments are only technically applicable to infringements by the federal government. They are made applicable to state and local governments through Incorporation into the first section of the 14th Amendment. Meaning, the section 5 enforcement provision applies to the 1st Amendment as well.


The RFRA was unconstitutional, according to the Court in Boerne, because Congress was not enforcing a constitutional protection, Congress was defining a constitutional protection: “Congress does not enforce a constitutional right by changing what the right is.”


The Court, then, came up with a test known as “Congruence and Proportionality.” According to this test, used in subsequent cases as well, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” This means that, while Congress cannot define rights, it may identify injuries that are being inflicted in line with what is supposed to be prohibited by the 14th Amendment. Provided Congress’ response is proportional to the injury being caused, the act will be upheld.


However, as a footnote, while the Congruence and Proportionality Test has been accepted as law, not all the Justices on the Supreme Court are pleased with the vagaries of its meaning. According to Justice Scalia, “The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decision-making.”

 Employment Division v. Smith (1990)

City of Boerne v. Flores (1997)

The National Debt

The National Debt Important Cases
The fourth section of the 14th Amendment contains two general elements, both surrounding debt. First, it guarantees that whatever debt the United States government accrues, “shall not be questioned.” Second, it invalidates any debt incurred by any rebellion against the United States (practically, this told those that may have financed the Confederacy’s fight in the Civil War that their debts will never be repaid).

In actuality, neither of these provisions have been used to directly question government actions in Supreme Court cases; however, the first element – that the U.S. debt is valid – has recently been paid some attention by the media and constitutional scholars. The national debt is high; both political parties agree on this stipulated fact. However, a good deal of controversy has surrounded what is called the “debt ceiling,” a Congressional action that sets the outside legal amount that the federal government may borrow. Though the debt ceiling has been consistently raised as the debt has grown, it is increasingly used as a bargaining chip in political debates.

The question that is being raised, then, is whether the debt ceiling is even constitutional in the first place. The reason the debt ceiling is important is because if the government were to reach the ceiling, without it being raised by Congress, it could no longer afford to pay its debts and obligations in the form of interest on the loans, pensions for government workers, and everyday functions of the government. But according to the 14th Amendment, the debt “shall not be questioned.” Does this mean that any statutory debt ceiling is beyond Congress’ authority? Possibly. But whether Congress has such authority remains a theoretical question only.
 

Rebels as Government Officials

Rebels as Government Officials Important Cases
Another section dealing directly with the aftermath of the Civil War, section 3 of the 14th Amendment prohibits those who had “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof” from serving in the government. It was designed to keep the federal and state governments free of those who had broken the country apart. However, its effect wound up being relatively minor, as Congress did eventually take advantage of the allowance in the amendment that gives Congress the authority, “by a vote of two-thirds of each House, [to] remove such disability.” 

The End of the Three-Fifths Compromise

The End of the Three-Fifths Compromise Important Cases
As with Section 1 of the 14th Amendment, this section – and the remaining sections – were originally written in direct response to the Civil War. Before the passage of this amendment, in Antebellum (Pre-Civil War) America, the number of delegates sent by each state to the House of Representatives was governed by Article I, Section 2, Clause 3. There, the House was created as a legislative body whose numbers reflected the populations of the respective states (unlike in the Senate, where each state sends 2 representatives, regardless of population).


During the Constitutional Convention, however, a compromise was needed. In the southern states, there were many black slaves who, if counted toward the population for the House, would have given the south what the north saw as an unfair advantage. The southern states wanted more representation in the Congress – and sought to have the slaves (even though they were slaves) counted among the rest of the citizens. The northern states wanted the slaves to not count toward the population numbers of the states.


The compromise that was settled on, then, became known as the “Three-Fifths Compromise.” The black slaves in the southern states would neither be counted as whole persons nor not counted at all. Rather, each slave was considered to be 3/5 of a person.


In the wake of the Civil War, however, this would no longer do. The slaves were freed (through the Emancipation Proclamation and, later, the 13th Amendment). Thus, this section of 14th Amendment remedies the stain on the original Constitution and overrides Article I, Section 2, Clause 3. For purposes of counting populations for representation in the House of Representatives, “the whole number of persons in each State” must be counted.

 
Consequences of Denying the Right to Vote Important Cases
Though it has never been carried out, this section of the 14th Amendment also carries with it a threat: for any state which denies the right to vote (to males of 21 years of age or older) for any reason except rebellion or crime, that state will receive a reduction in its representation in the House of Representatives proportional to its denial of the right. Though the theory behind the threat, and its implications for the rest of the amendment, have been discussed in cases like Reynolds v. Sims (1964) (see Justice Harlan’s dissent, in particular), and Richardson v. Ramirez (1974), it has never been practically applied. Reynolds v. Sims (1964)

Richardson v. Ramirez (1974)

The Equal Protection Clause

Introduction to Equal Protection Important Cases
It can perhaps be said that the Equal Protection Clause is at the core of the 14th Amendment. After all, this amendment was passed in the wake of the Civil War in attempts to remedy some of injustices that led up to that war, like racial inequality and slavery. While slavery is specifically dealt with in the 13th Amendment, inequality is dealt with here.Though race and racial discrimination are still at the heart of the Equal Protection Clause, any unjust government classification – the singling out of one group or another – can be a violation of the Constitution.A modern analysis of an Equal Protection claim requires several steps within a larger framework. First, it must be determined if there has been government action in this instance. A federal, state, or local government may not be able to discriminate, but your neighbor is under no such restraint. Second, there needs to be some classification, some action taken by the government to single out one group from another.However, a government classification does not necessarily mean than a violation of the Equal Protection Clause has occurred. The group being singled out must be what is known as a “suspect class.” As best defined by a famous footnote in United States v. Carolene Products Co. (1938), a suspect class of people is one that is a “discrete and insular minorit[y].” These are generally groups that have been historically discriminated against. If no such group is being singled out, then the Court will likely not consider there to have been a violation of the Equal Protection Clause. The Court may still examine the government action, but it will do so while being as deferential to the legislature as possible. This low-level standard of review is known as “Rational Basis Review,” and is further explained below.If, however, the government classification does single out a suspect class, the Court will probably give the action what is known as “Strict Scrutiny,” or the Court’s least deferential standard of review. In this instance, the Court will ask if the government’s purpose for the classification of the suspect class is compelling and whether the action taken is narrowly tailored to that purpose. If the answer to either of these two questions is no, then the classification is an unconstitutional violation of the Equal Protection Clause.Some government actions easily fit this mold. Today, if a local government singled out African Americans and forbid them from serving as firemen, this would be almost certainly be considered unconstitutional. Pure racism is not a compelling government purpose, and even if the government would try and suggest a non-racially motivated purpose, it is likely that that such a blanket action is not narrowly tailored to anything compelling.But in other contexts, it can be more difficult to determine if a government classification is constitutional. Surely, African Americans are a suspect class and the victims of discrimination throughout the history of the United States. But what about women? Or Catholics? Or drug abusers?A blanket law forbidding a group from participating in an entire profession is may neither further a compelling purpose nor be narrowly tailored to that purpose. But what about laws that only incidentally and statistically affect race? What about single-sex schools? What about affirmative action?The Equal Protection Clause is broad – but its scope is not unlimited. Below you will find further analysis, as well as examples of how the Court has treated certain classified groups.


A few final introductory points. First, it should be noted that while the Equal Protection Clause, specifically, applies to state and local governments, everything included in that clause also applies to the federal government through the 5th Amendment. Second, in addition to the Rational Basis and Strict Scrutiny tiers of review and analysis, the Court has also applied an Intermediate level (which will be addressed in the ‘Gender’ section below). Third, while these tiers are not technically outcome determinative – a law can fail Rational Basis Review and pass Strict Scrutiny – they often are exactly that. In the vast majority of cases, once the Court decides that Strict Scrutiny is most appropriate, the law will be struck down. Usually, if the Court applies Rational Basis Review, the law is upheld. Third, this tiered system of review is not unique to Equal Protection. It is used in Substantive Due Process cases, 1st Amendment cases, and throughout the Constitution. It is a regular tool used by the Court to determine constitutionality.


Finally, though terms like Rational Basis Review (and its accompanying “legitimate purpose” and “rational relation”) and Strict Scrutiny (and its accompanying “compelling purpose” and “narrowly tailored”) are often used here as if they themselves are clear standards, they are often not. The Court may mention these terms, or not, and still apply an analogous framework. Or the Court may use these exact terms, and undertake an unfamiliar analysis. As has been suggested, these tiers of review may be best thought of less as precise tiers, and more as points on a spectrum. The greater the likelihood for some inappropriate action, the more closely the Court will look to determine if anything inappropriate took place. Indeed, the very notion of tiered review did not really emerge until Carolene Products Co., and the explicit use of Strict Scrutiny did not really take place until Korematsu v. United States (1944) .


Therefore, it’s important to keep in mind that, when reading the simplified descriptions of the cases below, the Court’s actual analysis may be much more subtle (or confusing) in the text of the case itself.

 United States v. Carolene Products Co. (1938)

Korematsu v. United States (1944)Schuette v. Coalition to Defend Affirmative Action
Rational Basis Review Important Cases
When the Court determines that a suspect class is not being burdened by some classification, it applies Rational Basis Review. This level of scrutiny is the most deferential to legislatures. Meaning, the Court will be more inclined to except the judgment of the law makers when they passed the law. Under Rational Basis Review, the Court looks to see whether the classification had a legitimate purpose and whether the government action had a rational relationship with that purpose. As long as both of these questions can be answered in the affirmative, the Court will uphold the law.For example, in Williamson v. Lee Optical (1955), a state government prohibited opticians from making glasses without being licensed optometrists. The purpose given for the law was eye patient protection. As opticians are not a suspect class, this law was given Rational Basis Review. Safety was considered a legitimate purpose and the means undertaken were rationally related to that purpose. Therefore, the law was upheld.Or, as another example, in New York Transit Authority v. Beazer (1979), a New York City agency ruled that methadone users (often taken by recovering drug addicts) could not work for the transit authority. The purpose given for the law was commuter safety. As recovering drug addicts are not a suspect class, this law was given Rational Basis Review. Safety was considered a legitimate purpose and the means undertaken were rationally related to that purpose. Therefore, the law was upheld.Two important points should be understood when considering Rational Basis Review. First, a law merits Rational Basis Review when it does not approach infringing upon any constitutional provision. Meaning, in Lee Optical, for example, the Court determined both that opticians were not a suspect class, and that the right to a successful optician business was not a fundamental right. Or, in Beazer, the Court determined both that methadone users were not a suspect class, and that the right to public employment was not a fundamental right. Quite often, the Court will analyze the Equal Protection Clause and Substantive Due Process together – even occasionally blurring the lines between the two.It is also crucial to note that, even under Rational Basis Review, prejudice alone is never a legitimate purpose. In other words, if the government is acting due to some express bias for bias’ sake, the Court will invalidate the action. Sometimes, the Court will look at a government purpose, which is not expressly prejudiced, and read prejudice, or animus, into the action as the true purpose. This is also known as “Rational Basis with Bite.” Some even consider it to be the Court breaking from the tiered review framework and applying some quasi-intermediate scrutiny. This is because for Rational Basis Review, the Court should be deferential to a government’s express purpose – not suspicious of an underhanded hidden motive. Regardless, the Court will sometimes view the government purpose given, even for a classification that does not affect a suspect class, as merely a sham for racism, hatred, or pure bias.Classic cases representative of Rational Basis Review with Bite include Department of Agriculture v. Moreno (1973) and City of Cleburne v. Cleburne Living Center, Inc. (1985).In Moreno, the Court examined the Food Stamp Act of 1964, which prohibited people who lived in households with unrelated individuals from obtaining food stamps. The express government purpose was the efficient administration of the program. Unrelated people living in one house was not a suspect class and the law was therefore given Rational Basis Review. However, even though efficient administration of a program may be legitimate in its own right, the Court saw this as merely bias and animus against an unpopular group (such as people who chose to live in commune-like communities), and an attempt to legislatively frustrate a certain way of living. This was prejudice as purpose, and not legitimate. Therefore, the Court invalidated the law.


In Cleburne, a city zoning commission had denied an application for a group home of mentally disabled men. The express government purpose was the allaying of the fears and concerns of the neighborhood’s other residents. Though the Court split on this particular point – the majority held that mentally disabled people were not a suspect class, and the law was therefore given Rational Basis Review. However, even though allaying fears of the neighborhood may be legitimate in its own right, the Court saw this as the government making a law simply out of animus and disdain for the mentally disabled. This was prejudice as purpose, and not legitimate. Therefore, the Court invalidated the law.

 Williamson v. Lee Optical (1955)

Department of Agriculture v. Moreno (1973)

New York Transit Authority v. Beazer (1979)

Minnesota v. Clover Leaf Creamery (1981)

City of Cleburne v. Cleburne Living Center, Inc. (1985)

Romer v. Evans (1996)
Racial Discrimination Important Cases
The movement toward racial equality in the United States has not always been a straightforward one. Obviously, before the Civil War, when slavery was still legal in many parts of the country, African Americans were not treated with the dignity owed all people. Nowhere is this more embodied in the history of the Supreme Court than in the case of Dred Scott v. Sandford (1857). In Dred Scott, the Court examined the case of an African American who claimed that, though once a slave, he was now automatically free for having traveled into a free state with his former master. The Court, however, rejected this argument. First, the Court held that the Constitution understood black individuals to be “beings of an inferior order.” They were not entitled to the protections of the Constitution and they were not citizens. Therefore, the Court could did not have even jurisdiction over them to be able to decide the case.Still, though, the Court also went on to analyze Dred Scott’s claim itself. The Court held that were a slave to automatically become free when traveling into a free state with his master, the master’s property rights would be unconstitutionally violated. Therefore, Dred Scott was not free.Certainly, in the wake of the Civil War and with the passage of the 13th Amendment, the evil that was slavery ended. However, even with the passage of the 14th Amendment, other evils persisted. The Equal Protection Clause only accomplished so much.In Plessy v. Ferguson (1896), the Court held that Louisiana’s racially separate railroad cars did not violate the Equal Protection Clause. Though the plaintiff made the argument that such separations result in inferior services for African Americans, the Court upheld “separate but equal” as constitutionally valid.Separate but equal persisted for over 50 years, until Brown v. Board of Education (1954), when the Court finally held that separate but equal was wholly unconstitutional. This case, specifically concerning public schools but having wide application, stood for the proposition that not only may facilities actually be unequal (in which case, even before Brown, a court may have found the separation invalid), but the very notion of segregation stigmatizes and creates a false sense of inferior and superior classes.Still, despite the uneven trajectory toward racial equality and even the not always successful efforts to implement Brown‘s mandate to desegregate schools and other government entities, racial classifications by the government, especially considering the above history, are generally given Strict Scrutiny by the Court. Dred Scott v. Sandford (1857)

Plessy v. Ferguson (1896)

Brown v. Board of Education (1954)

Baker v. Carr (1962)
Racial Discrimination and Strict Scrutiny Important Cases
As mentioned, government classifications based on race are generally given Strict Scrutiny. African Americans, and potentially other groups as well, are suspect classes and “discrete and insular minorities” that have been historical victims of prejudice and discrimination. As such, the Court will ask whether a particular classification has a compelling purpose and whether the action undertaken by the government is narrowly tailored to that purpose.An early example of the Equal Protection Clause invalidating a government classification can be found in Strauder v. West Virginia (1880). In Strauder, West Virginia passed a law prohibiting African Americans from serving on juries. The purpose given for this law was to ensure an educated and informed makeup of the jury, a purpose better protected by completely restricting potentially illiterate former slaves from participation. The Court understood African Americans to be the group for whom the 14th Amendment was specifically written, and thereby considered them akin to a suspect class, triggering a forerunner of the Strict Scrutiny analysis. Though educated and informed juries may itself be a compelling purpose, a blanket exclusion of African Americans was not a narrowly tailored way to achieve that goal. There were other ways to do so without this discriminatory action.Another landmark case involving racial classifications was Korematsu v. United States (1944). In Korematsu, an executive order was issued by President Roosevelt, and bolstered by Congress, giving military commanders the power to remove Japanese people from their homes in the United States and intern them in specially designated camps. This applied whether or not they were citizens. The government purpose given for this action was national security – as it took place during World War II. The country was at war with the Japanese and, especially after the attack on Pearl Harbor, the military feared an invasion of the West Coast (and help with that invasion from Japanese spies on U.S. soil).Here, the Court did consider the Japanese to be a suspect class; and therefore (and explicitly for the first time), the Court applied Strict Scrutiny. However, the Court decided both that the purpose of national security was compelling and that the means undertaken, the internment of the Japanese, was the most narrowly tailored way to further this particular purpose at this particular time. The internment, then, was held not to be unconstitutional.Finally, another important case in Equal Protection jurisprudence is Loving v. Virginia (1967). In Loving, a Virginia anti-miscegenation statute was challenged. These laws, on the books in other states at the time as well, forbid the intermarrying of people belonging to two different races. Virginia’s anti-miscegenation law criminalized marriage between one white person and other person from any different race, including African Americans.Overturning an earlier decision in Pace v. Alabama (1883), which found such statutes to be valid, the Court decided that anti-miscegenation laws were unconstitutional under both the Equal Protection Clause and Substantive Due Process. The Constitution did not permit “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment.” Strauder v. West Virginia (1880)

Pace v. Alabama (1883)

Korematsu v. United States (1944)

Loving v. Virginia (1967)
Disproportionate Discriminatory Impact Important Cases
It is often the case that a government will not engage in a specifically classifying action at all, but still act in a way that potentially triggers the Equal Protection Clause. In fact, government acts that explicitly discriminate – especially in the realm of race, today – are rare. Usually, a race-related challenge to government action under the Equal Protection Clause takes the form of a “Disparate Impact” or “Disproportionate Discriminatory Impact” challenge. Here, the government body is accused of doing something that may not have been expressly for the purpose of discrimination or classification, a law that is referred to as “facially neutral. Yet, in such challenges, the plaintiff asserts that the facially neutral law still impacts one group disproportionately.However, constitutionally, a racially disproportionate impact is not sufficient to implicate the Equal Protection Clause. For a racially facially neutral law to be unconstitutional, it must both have a disproportionate discriminatory impact and be motivated by what is known as “invidiousness.” In other words, though the law may appear neutral, it must be shown that it was actually motivated by some bias or prejudice. Without invidiousness, there is no constitutional violation.By way of example, in Washington v. Davis (1976), the Court examined a government test which measured reading ability for admission into the police academy. But this racially facially neutral action – purposed with building a police force that was able to properly communicate – had a disproportionate discriminatory impact: more African Americans failed the test than did white test takers. However, the Court found there to be no underlying invidiousness with regard to this action, and the law was then upheld under Rational Basis Review.Also, in McClesky v. Kemp (1987), an inmate on death row argued that the death penalty, though racially facially neutral, as implemented had a disproportionate discriminatory impact on those accused of killing white victims. However, the Court found there to be no underlying invidiousness with regard to this action, and the death penalty was upheld under Rational Basis Review.Finally, it also worth noting here – though it is somewhat tangential – that racially facially neutral laws can be challenged when administered in a prejudicial way. The early example of Yick Wo v. Hopkins (1886) probably provides the best illustration of this point. In Yick Wo, a San Francisco administrative board, by statute, was charged with managing applications to build laundromats. The statute as written was racially racially neutral; but while the majority of San Francisco’s laundromats were Chinese-owned, none of the Chinese applicants received the necessary permits, while the vast majority of white applicants did receive the permits. Even though the law may have been initially passed without invidiousness, the administration and application of the law did show bias and prejudice. Therefore, the Court struck down even the underlying statute as an unconstitutional violation of Equal Protection. Yick Wo v. Hopkins (1886)

Washington v. Davis (1976)

Arlington Heights v. Metropolitan Housing Corp. (1977)

McClesky v. Kemp (1987)
Affirmative Action Important Cases
Like government actions burdening suspect classes, government actions benefiting suspect classes are also given Strict Scrutiny. The most obvious method with which government (and private) entities benefit suspect classes are through programs known collectively as “affirmative action.” But affirmative action is not necessarily one type of program or action. Many different types of such programs have taken shape in various contexts. While some have been upheld as constitutional, others have been invalidated under the Equal Protection Clause.For example, in City of Richmond v. J.A. Croson Co. (1989), Richmond compelled general contractors in the city to hire at least 30% minority subcontractors for whatever work was needed. The purpose given for this requirement was remedying past discrimination. The plaintiffs in this case claimed what has become colloquially known as ‘reverse discrimination,’ where the majority group is unfairly burdened by a benefit specifically conferred on a suspect class. Even though, obviously, white subcontractors are not a suspect class, because this law was discriminatory and certainly not racially neutral, it was given Strict Scrutiny. During the case, the city produced insufficient evidence to suggest that it was remedying discrimination in the then-construction industry. Instead, truly, all the city was trying to accomplish was remedying past discrimination by awarding minority subcontractors at least 30% of the subcontracting business. The Court held that remedying past discrimination alone was not a compelling purpose under the Strict Scrutiny analysis. Nor was the city’s discriminatory approach to dealing with this issue narrowly tailored: the city could have undertaken a less- or non-discriminatory action. Thus, the law was invalidated.While Croson is a perfectly typical example of unconstitutional affirmative action, affirmative action is perhaps most often debated in the context of schools and education.The foundational case dealing with affirmative action in schools is Regents of the University of California v. Bakke (1978). In Bakke, the Court examined an affirmative action program at the U.C. Davis Medical School. In a fractured decision, producing no fewer than seven opinions (for nine Justices), the majority held that the program used by the school for admission was unconstitutional. According to the ruling in Bakke, while a system of affirmative action that considered the backgrounds of the applicants, including race, as another potential positive factor for admission would have been valid, the quota program in place at U.C. Davis, where seats were specifically set aside for minority applicants was unconstitutional. This type of program automatically meant that qualified applicants from groups not belonging to the benefited group would be denied admission solely on the basis of their race.Bakke, however, was not the end of the line of cases involving university admissions affirmative programs. In 2003, this topic was again revisited in a pair of rulings both involving the admissions process at the University of Michigan.In Grutter v. Bollinger (2003), the Court examined the admissions policy of the University of Michigan law school which, similar to the system recommended by the Court in Bakke, the school used the backgrounds of the applicants, including race, as positive factors for admission. However, in Gratz v. Bollinger (2003), the Court invalidated the admissions policy of the University of Michigan undergraduate school which, more akin to the unconstitutional approach of U.C. Davis in Bakke, the school automatically allotted automatic bonus points to students of particular races. This, then, was considered by the Court to not be sufficiently narrowly tailored (as it naturally applied Strict Scrutiny) and thus unconstitutional. Regents of the University of California v. Bakke (1978)

City of Richmond v. J.A. Croson Co. (1989)

Grutter v. Bollinger (2003)

Gratz v. Bollinger (2003)

Fisher v. University of Texas (2013)
Gender Important Cases
Somewhat, though not completely, uniquely, classifications based on gender are given what is known as “Intermediate Scrutiny.” Under this analysis, the Court looks to see whether the government action that classifies based on gender does so for an important government purpose, and whether the action taken to further that purpose is substantially related to it.For example, in Craig v. Boren (1976), the Court examined an Oklahoma statute that made the sale of light-alcohol beer illegal to men under under the age of 21, but only illegal to women under the age of 18. Here, the Court found no important government purpose behind this particular classification. The government action thus failed Intermediate Scrutiny and was unconstitutional.Additionally, in United States v. Virginia (1996), the Court examined the male-only admissions policy of the Virginia Military Institute, a public university. In response to an earlier lawsuit, the school had actually established a women’s branch with a much less physically intense program. But Justice Ginsburg, writing for the majority, analogized this action to when the University of Texas created a separate law school for African American applicants that was anything but equal. Though VMI argued that by opening its doors to both men and women, it would have to radically change the nature of the school, Justice Ginsburg rejected this charge as illusory. The school could not deny admission to women “simply because they are women.” As Justice Ginsburg strongly stated, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” Craig v. Boren (1976)

Mississippi University for Women v. Hogan (1982)

United States v. Virginia (1996)
Sexual Orientation Important Cases
Unlike government classifications which distinguish groups on the basis of race (these are get Strict Scrutiny) and government classifications which distinguish groups on the basis of gender (these get Intermediate Review), government classifications which distinguish on the basis of sexual orientation have been given Rational Basis Review by the Court.For example, in Romer v. Evans (1996), the Court examined an amendment to the Colorado Constitution. Through a state-wide referendum, Colorado added a provision in its constitution that prohibited anti-discrimination protections otherwise applied broadly, from being applicable to discrimination on the basis of sexual orientation. But though the Court did not view those with sexual preferences different from the majority as suspect classes – and thus applied Rational Basis Review – the Court did find that the amendment was grounded in animus and prejudice. Bias alone was not a legitimate purpose, even under Rational Basis Review. In other words, the Court applied Rational Basis Review “with Bite” (see Substantive Due Process) and invalidated the action.Also see the discussion on Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) in Substantive Due Process. Bowers v. Hardwick (1986)

Romer v. Evans (1996)

Lawrence v. Texas (2003)

Hollingsworth v. Perry (2013)
Alienage Important Cases
The issue of whether legal aliens (foreigners who are legally permitted to live and/or work in the United States but, for whatever reason are not citizens) are a suspect class is a unique one, subject to its own analysis based on the case of Sugarman v. Dougall (1973). But either way, grounding this issue is the fact that the 14th Amendment (Section 1) itself does not discriminate between citizens and non-citizens. It guarantees that states are not to “deny to any person within its jurisdiction the equal protection of the laws.”In Sugarman, the Court examined a N.Y. statute that prohibited aliens from obtaining any and all civil service jobs. The Court, then, essentially set up the following framework.Had the government action (here, the N.Y. statute) been federal, the Court would have applied the more deferential Rational Basis Review. Even though in the vast majority of cases, the protections of the 14th Amendment (Section 1) apply equally to the federal government through the 5th Amendment, Article I, Section 8 specifically grants Congress the power “To establish a uniform rule of naturalization.” This has been understood by the Court to give Congress and the federal government greater authority in the realm of immigration and laws dealing with aliens in general.The law in question in Sugarman, however, was a state action. In this context, the Court did decide that aliens are a suspect class. Meaning, they are a “discrete and insular minority,” to borrow the phrase from Carolene Products (see above “Introduction”). Therefore, generally, blanket discrimination such as was the case in Sugarman should be – and was – given Strict Scrutiny. The law was held by the Court to be unconstitutional.The Court also noted, however, that in some instances there could be a valid classification of legal aliens that was compellingly purposed enough to pass Strict Scrutiny. If the jobs in question are what has been called “sovereign function” jobs, in other words, the job involves the formulation or execution of broad public policy initiatives or the like, the state may have a compelling reason to exclude aliens from the position. For these types of classifications, only Rational Basis Review is applied. Still, in Sugarman, N.Y.’s law was significantly broader that this; and was thus invalidated. Sugarman v. Dougall (1973)
Voting Important Cases
The constitutional protection of voting is grounded in several provisions. Within the 14th Amendment, an implied fundamental right to vote has been somewhat established through Substantive Due Process. However, in an Equal Protection context, another voting-relating concept has emerged, so called “one person, one vote.” This concept means that within a given state or jurisdiction, one person’s vote should be roughly equal to another person’s vote. When a state’s district lines have been set up in a way to make certain area’s votes less influential than others, this is called a “gerry-mander”.Originally, the Court refused to become involved in cases involving legislative re-districting. The re-drawing of district lines always involves a heavy element of partisan politics, and the Court considered it a “political question” which the Court would not interfere with. This stance was taken in the case of Colegrove v. Green, a 1946 decision regarding re-districting in Illinois. Illinois had not re-drawn its district lines in over 60 years, during which the population within the state had shifted dramatically. This resulted in districts ranging in population size from roughly 100,000 to others over 900,000. Since each district had its own representatives, this meant voters in these smaller counties had much more powerful votes regarding their representation: in the example above, 9 times the power of a voter in the larger county. The Court refused to decide the question, stating that redistricting represents a “political thicket” that “Courts ought not to enter…” Justice Black wrote a dissent in which he argued that this unequal weight of voting power represented a violation of the Equal Protection Clause.In Baker v. Carr (1962), the Court held that re-districting of state legislative districts was a justiciable issue rather than a political question. The decision effectively rendered the decision in Colegrove unimportant. Colegrove had focused on Article I, Section 5, whereas Brennan’s plurality opinion in Colegrove focused on an Equal Protection analysis. Similarly to Colegrove, the state had not redrawn the lines of the voting districts – what’s known as “redistricting” – in half a century. As the populations of the districts changed over the years, some districts had more than triple – in one case more than ten times – the amount of people represented than other districts. This ruling was mirrored only 2 years later in Reynolds v. Sims (1964), another redistricting case (this time in Alabama) which codified the “one person, one vote” rule for state enate districts. The Court simultaneously decided Wesberry v. Sanders, which applied this rule to Congressional districts.Bush v. Gore (2000), the controversial case in which the Supreme Court decided to stop a Florida voting recount during the 2000 presidential election, was also decided on Equal Protection grounds. Earlier, the Florida Supreme Court had permitted a recount to occur. But the U.S. Supreme Court held that Florida’s statutory time limits for deciding on a winner of the election meant that such a recount would be rushed and standardless. Without a uniformly and fairly implemented recount, certain votes in certain counties would have possibly been given more weight than other votes in other counties. As a violation of the “one person, one vote” standard requiring by the Equal Protection Clause, this was unconstitutional. Colegrove v. Green (1946)

Baker v. Carr (1962)

Reynolds v. Sims (1964)

Harper v. Virginia State Board of Elections (1966)

Kramer v. Union Free School District (1969)

Crawford v. Marion County Election Board (2008)

Bush v. Gore (2000)

Incorporation of the Bill of Rights

Introduction Important Cases
The Bill of Rights – those first ten amendments to the Constitution – were originally written to apply to the federal government. Meaning, under the 1st Amendment, for example, the federal government could not infringe on someone’s freedom of speech, a state had no such restrictions on its power.For a century after the ratification of the Constitution and the Bill of Rights, this was the framework followed by the Supreme Court.


With the passage of the 14th Amendment, however, and the recognition of
Substantive Due Process rights housed within that amendment, the notion that the first ten amendments served to protect individuals against only overreaches of the federal government was undone. As the Due Process Clause of the 14th Amendment became the source of various other rights that were inherent to our system of freedoms and liberties, it also became the channel through which the amendments in the Bill of Rights became applicable to the states as well.


Two general schools of thought emerged as to how this should be done. Uniquely championed by Justice Hugo Black in the mid-20th Century, one approach was so-called “Total Incorporation.” Meaning, each one of the first eight amendments (the 9th Amendment and the 10th Amendment do not directly concern specific individual liberties) should be automatically and completely considered to be applicable to the states. This approach, however, did not garner support among Justice Black’s fellow Justices. Instead, from both before Justice Black, and since, the Court has engaged in what has become known as “Selective Incorporation.”


Under this approach, the Court examines the specific right being asserted by a litigant against a state and examines it under much the same (of not an identical) analysis as the Court considers an altogether separate implied fundamental right (see Substantive Due Process), like the right to privacy. If the rights guaranteed by the amendment are deemed so fundamental that an infringement of them by a state would be anathema to our system of liberties, then that right is incorporated by the 14th Amendment and is applicable to the states.


However, though the Total Incorporation approach has been conceptually rejected, in the century of Selective Incorporation, many – if not most – of the rights guaranteed by the first eight amendments have been brought to bear on the states by the Supreme Court.

 Barron v. Baltimore (1833)

Gitlow v. New York (1925)

Adamson v. California (1947)
Examples of Selectively Incorporated Amendments Important Cases
Under the doctrine of Selective Incorporation, each and every right or amendment is not applicable to the states unless explicitly made so by the Supreme Court.


The Establishment Clause which prevents the government from establishing religion) of the 1st Amendment, for example, was not incorporated until 1947, in Everson v. Board of Education. In that case, a lawsuit was brought challenging a New Jersey law which allowed public money to be used for school buses that transported children to and from both public and private schools. Ultimately, the Court decided that New Jersey was not in violation of the Establishment Clause. But still, the very consideration of the issue made it so that clause, formerly only applicable to the federal government, was now also applicable to the states.


Another recent and high profile example of Selective Incorporation took place in the Court’s decision in McDonald v. Chicago (2010). There, Chicago gun regulations were challenged as violations of the 2nd Amendment, the amendment that protects an individual’s “right to bear arms.” Again, the Court used the Due Process Clause to make the amendment, formerly applicable only to the federal government, now applicable to the states as well.

 Everson v. Board of Education (1947)

Wolf v. Colorado (1949)

Robinson v. California (1962)

Malloy v. Hogan (1964)

McDonald v. Chicago (2010)

Substantive Due Process

Introduction Important Cases

*By arriving here, you have found Substantive Due Process. If you meant to find Procedural Due Process.


The US Constitution, unlike other constitutions around the world, does not generally afford positive rights. Meaning, under the Constitution, federal and state governments do not have to affirmatively provide things for you. There is no constitutional right to access to healthcare. There is no constitutional right to public education and there is no constitutional right to employment. For an alternative vision of a national constitution that does provide such things, see the Constitution of South Africa.


However, the US Constitution does provide so-called negative rights. Meaning, under the Constitution, people have certain rights, freedom of speech, for example, that the government cannot infringe upon. Some of these rights are explicit. They are stated outright in the text of the Constitution. Some of these rights, though, are implied. Among the sources of the implied rights, the Due Process Clause is by far the richest. In addition to housing Procedural Due Process and being the bridge through which the Bill of Rights is applicable to the states, the Due Process Clause also guarantees substantive rights unto itself.


Conceptually, there may be no limit to the number of rights that can be derived from the Due Process Clause. As time has passed, the Supreme Court has found numerous such rights. The parameters, however, of what constitutes a right so fundamental as to be implied by the Due Process Clause have never been entirely concrete. To decide if a right is fundamental, the Court asks “whether the right…is fundamental to our scheme of ordered liberty…or whether this right is deeply rooted in our nation’s history and tradition.” Though this may sound more like a philosophical musing than a legal test, these phrases are at the core of what the Court has looked to in establishing implied fundamental rights.


Below, you will find examples of potential rights the Court has grappled with.


It is important to remember, however, that like with many other clauses in the Constitution, little is absolute. Simply because a right is found, does not mean that the government cannot constrict that right under certain circumstances. Once a fundamental right is established, the Court generally will then apply its most stringent level of review, what is known as “strict scrutiny.” Meaning, for a government action infringing on a fundamental right to be constitutional, the action must have a compelling purpose and the action must be narrowly tailored to that purpose. If the Court finds that this is not the case, the action will be unconstitutional.


Similarly, if a right is found not to be fundamental or protected by the Constitution, the Court will apply its least stringent level of review, what is known as “rational basis review.” Meaning, for a government action not infringing on a fundamental right, it need only have a legitimate purpose and the action must have a rational relationship to that purpose. Only if the Court finds this to not be the case will such an action be unconstitutional.


Finally, as an aside, the Due Process Clause in the 14th Amendment was modeled after the Due Process Clause of the 5th Amendment. The languages of the two amendments are nearly identical. This is fitting; because the 14th Amendment Due Process Clause was simply intended to extend to the states the same limitations as were placed on the federal government in the 5th Amendment. Therefore, it should be kept in mind that the analysis of Substantive Due Process and the various implied fundamental rights are the same whether infringed by a state government or the federal government. However, technically, when such a right is infringed upon by the federal government, protection is afforded by the 5th Amendment. When such a right is infringed upon by a state or local government, protection is afforded by the 14th Amendment.

 Meyer v. Nebraska (1923)

Pierce v. Society of Sisters (1925)

McDonald v. Chicago (2010)
Economic Liberty Important Cases
Economic Liberty, or Freedom of Contract as it is sometimes called, was at one time a centerpiece of the Court’s jurisprudence regarding Substantive Due Process. As early as 1897, in Allgeyer v. Louisana, the Court found there to be a fundamental right to freedom of contract. In that case, a Louisiana statute was passed prohibiting in-state companies from doing business with certain out-of-state companies. In typical lofty language, the Court held that liberty meant “not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”So the Lochner Era was born. This period, the decades during which the Supreme Court generally invalidated statutes that interfered with private businesses, is known as the Lochner Era because of the case that is considered to be at the heart of the once-prominent fundamental right to freedom of contract. In Lochner v. New York (1905), using strict scrutiny, the Court invalidated a NY statute prohibiting bakers from working more than 60 hours per week and/or 10 hours per day. Such laws may be commonplace today; but they were unconstitutional during this period. Upholding the bakers and employers’ desire to be free to work as they wished, the Court invalidated the statute.Under Lochner, the branches of the modern regulatory state (minimum wages, unemployment compensation insurance, social security, etc.) would all likely be unconstitutional. For example, in Hammer v. Dagenheart (1918), even child labor laws were invalidated.


By the Great Depression, however, with a seismic shift toward increased government involvement in businesses and employment, the Court shifted as well. In Nebbia v. New York (1934), without expressly rejecting the notion of a right to economic freedom, the Court nevertheless gave deference to the legislature and upheld a statute setting price controls for the dairy industry. By 1937, in West Coast Hotel Co. v. Parrish (1937), upholding the constitutionality of a minimum wage requirement, the Court explicitly repudiated the freedom of contract. “What is this freedom?” asked Chief Justice Hughes. “The Constitution does not speak of freedom of contract.” It is this approach that has held sway among the Justices ever since.


Today, some consider the demise of the Lochner Era and the rise of other Substantive Due Process rights to be inherently contradictory. But this theoretical debate aside, Economic Substantive Due Process no longer exists, while Non-Economic Substantive Due Process is alive and well.

 Mugler v. Kansas (1887)

Allgeyer v. Louisana (1897)

Lochner v. New York (1905)

Adair v. United States (1908)

Hammer v. Dagenhart (1918)

Bailey v. Drexel Furniture Co. (1922)

Nebbia v. New York (1934)

West Coast Hotel Co. v. Parrish (1937)

United States v. Carolene Products Co. (1938)

Fergusun v. Skrupa (1963)
Privacy Important Cases
The Right to Privacy can be found in many places throughout the Constitution. Various amendments in the Bill of Rights speak of protections against intrusions on private beliefs, private statements, and private homes.But the Court has also found a general Right to Privacy, one housed in the 14th Amendment. The notion that privacy is so fundamental so as to be a right granted by the Due Process Clause was foreshadowed early in the 20th Century. However, in modern jurisprudence, it is the case of Griswold v. Connecticut (1965) that set privacy’s place as an implied fundamental right.In Griswold, Connecticut had made it a crime for married couples to use contraception and for anyone to aid or abed them in that use. The Court, however, invalidated this statute under an implied fundamental right to privacy. Not all Justices adhering to the existence of this right did so under the Due Process Clause, however. The majority actually found “zones of privacy” emanating from the Bill of Rights, creating a sort of general gloss on those amendments that gave rise to the right to privacy. One Justice cited the 9th Amendment as a potential source for new rights, including this right to privacy. However, Justice Harlan, also writing his own opinion concurring in the judgment, found there to be a right to privacy in the notion of liberty as set forth in the Due Process Clause. Though his was not the majority approach in Griswold, it has had the most lasting significance. Meyer v. Nebraska (1923)

Pierce v. Society of Sisters (1925)

Griswold v. Connecticut (1965)

Eisenstadt v. Baird (1971)
Abortion Important Cases
In the nineteenth and early twentieth centuries, it was commonplace for a state to ban abortion. So, in 1969, when a young girl named Norma McCorvey wanted an abortion in her home state of Texas where such an act was illegal, she had little recourse. Ms. McCorvery sought help from two local attorneys who brought the case up to the U.S. Supreme Court. Though the baby had long been born when Roe v. Wade was eventually decided in 1973, this case changed the landscape of abortion law and is still cited today by both pro-life and pro-choice advocates alike.As was framed by the Court in Roe, the constitutionality of abortion restrictions presents unique questions. Simply put, there are several competing interests at play. On the one hand, as stated above, there is a woman’s right to privacy as was emphasized in Griswold. But on the other hand, there is a state’s potential interest in protecting the life of the fetus. Framing both sides of this issue is the aim of protecting the mother’s health.The Court found that abortion restrictions do infringe upon a woman’s right to privacy. Though the question was raised, the Court also held that the fetus was not a person under the constitution. To show that constitutional protection did not extend to the fetus, the Court cited to various uses of the word “person” in the Constitution that, in context, could only be referring to a born person. Therefore, according to the Court, abortion doesn’t pit the constitutionally protected privacy of the mother against the constitutionally protected life of the child.


However, the Court still recognized other potential government interests, such as mitigating the health risks of obtaining an abortion, and protecting a “potential person.” To resolve the balancing of these interests, the Court somewhat uniquely created what came to be known as the “trimester framework.” Meaning, instead of looking to the violation of the Due Process Right to privacy and applying ordinary strict scrutiny to restrictions and the purposes behind those restrictions, the Court creating another, separate analysis singularly for abortion restrictions. This test resembled strict scrutiny but used the three trimesters of a pregnancy as guideposts for balancing the value of the potential life of the fetus, and health and privacy of the mother. The trimester framework has since been abandoned by the Court, but Roe still today stands for the proposition that government does not have a blank check to prohibit all abortions.


Instead of the trimester framework, the modern test for the constitutionality of abortion restrictions comes from the Court’s decision in Planned Parenthood of Southern Pennsylvania v. Casey (1992). This case, challenging some abortion restrictions passed by Pennsylvania, was thought by many to be the one that would see Roe overturned, considering the changes that the makeup of the Court had undergone in the decades since Roe was decided. Though the trimester framework was rejected by the Court, Roe‘s central premise, that woman has a privacy right to choose to have an abortion, was affirmed.


Justice O’Conner, writing for the plurality opinion in Casey, felt that Roe had undervalued the potential life of the fetus. She established a test that turned on what she called an “undue burden.” Under this test, for a viable fetus, government may completely ban abortion. But for a fetus that is not yet viable, if the state restriction has the effect of placing a substantial obstacle in the path of a woman seeking an abortion, this restriction is an undue burden and is unconstitutional. If the state restriction does not place a substantial obstacle in the way of a woman’s choice, even if a state measure is designed to persuade her to choose childbirth over abortion, the measure will be upheld.


Justice O’Conner used this test to uphold an informed consent provision where, except for a medical emergency, a woman must wait at least 24 hours after her physician describes the nature of the procedure, risks of the procedure, and the probable gestational age of the unborn child to get an abortion. But the Court also invalidated a spousal consent provision where a wife needed consent from her husband to obtain an abortion.


Today, under this standard, strict scrutiny is not given to abortion laws; and instead, the undue burden test is applied.

  Roe v. Wade (1973)

Doe v. Bolton (1973)

City of Akron v. Akron Center for Reproductive Health (1983)

Thornburgh v. American College of Obstetricians and Gynecologists (1986)

Planned Parenthood of Southern Pennsylvania v. Casey (1992)

Gonzales v. Carhart (2007)
Family Association Important Cases
Sometimes referred to as the implied fundamental right to intimate association, strict scrutiny may also be triggered for the abridgement of a person’s right to associate himself or herself with close family, and define that family as he or she chooses (note: this should not be confused with the right to expressive association under the 1st Amendment). Conceptually, this is yet another branch of the right to privacy as established in Griswold.For example, in Moore v. East Cleveland (1977), the Court invalidated an ordinance restricting housing to a single nuclear family. The plaintiffs in that case were an extended family including a grandmother, nephews, and cousins. The Court held that this ordinance was not narrowly tailored to the purported government objectives of mitigating traffic and reducing financial burdens on public schools. Michael H. v. Gerald D. (1989)

Stanley v. Illinois (1977)

Moore v. East Cleveland (1977)

Zablocki v. Redhail (1978)

Troxel v. Granville (2000)

Hollingsworth v. Perry (2013)
Sexual Privacy Important Cases
The question of whether consenting adults have a fundamental right to engage in sexual conduct of their choosing has proven to be a contentious issue both for the public and for the Supreme Court.In 1986, in Bowers v. Hardwick, the Court examined the constitutionality of a Georgia statute of the type known as a “sodomy law.” These laws criminalize certain sexual behavior. In this case, two men were arrested under a statute that prohibited oral and anal sex between partners. The plaintiffs brought suit against the statute itself, alleging that it infringed upon yet another iteration of the implied fundamental right to privacy. But the Court rejecting this argument, holding that [p]roscriptions against that conduct have ancient roots…to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.”But only 17 years later, the Court reversed itself in something of a confusing manner. In Lawrence v. Texas (2003), a gay couple was arrested under a Texas sodomy law. Here, however, the Court invalidated the statute. Justice Kennedy, writing for the majority, penned a lofty tribute to personal freedoms: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”


Yet, despite this language, Justice Kennedy did not apply strict scrutiny to the Texas statute. Meaning, he still did not believe that the right to exercise that liberty rose to the level of a fundamental right. Instead, he applied rational basis review, the lowest level of review with the greatest discretion afforded to legislatures, and invalidated the statute nonetheless.


This confusing analysis has left lower courts struggling to understand the place that sexual privacy holds on the spectrum of constitutional freedoms, though not necessarily to the degree that Justice Kennedy, dissenting in Lawrence, anticipated. Ultimately, what is clear from Lawrence, is that Bowers has been repudiated.


Tangentially, Justice O’Conner, who had actually been in the majority in Bowers, wrote her own concurrence in Lawrence. She approved of the invalidation of the Texas sodomy law; but she did not agree with Justice Kennedy’s analysis. Instead of focusing on Substantive Due Process and implied fundamental rights, Justice O’Conner felt that the statute in question in Lawrence violated the Equal Protection Clause.


Justice O’Conner felt that the statute in Lawrence, which specifically criminalized sexual conduct between homosexual partners unconstitutionally singled out one group from others, while the statute in Bowers was technically drafted to apply to both homosexual and heterosexual partners. Justice O’Conner used this analysis to characteristically split the difference between Bowers and Lawrence, holding that both cases were correctly decided, instead of holding that Lawrence overruled Bowers.

 Bowers v. Hardwick (1986)

Lawrence v. Texas (2003)
Procreation Important Cases
Like many other implied rights, the contours of an implied fundamental right to procreate are blurry, if any such right even exists at all.In Buck v. Bell (1927), the Court examined a Virginia statute that authorized the compulsory sterilization of the mentally challenged. The Court upheld the statute in this case, calling the particular woman for whom the lawsuit was brought “a feeble minded white woman…daughter of a feeble minded mother…and the mother of an illegitimate feeble minded child.” Technically, Buck has never been overruled.However, less than twenty years later, in Skinner v. Oklahoma (1942), another suit was brought, this time challenging an Oklahoma statute requiring the sterilization of repeat offender criminals that committed certain felonies. The Court unanimously invalidated the statute in Skinner using strict scrutiny. The opinion expressed the sacrosanct nature of the right that is the ability to have children: “Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”


However, the Court did not use the Due Process Clause to invalidate the statute. After expressing the above unequivocal sentiment, the Court applied strict scrutiny under the Equal Protection Clause. Meaning, the statute was not unconstitutional because it infringed on some fundamental right as housed in the Due Process Clause. Instead, the statute was unconstitutional because it unconstitutionally treated people differently. In the Oklahoma statute, only some criminals were subject to the sterilizations, leaving out white-collar criminals entirely. It was this classification that triggered strict scrutiny, rendering the statute invalid.


But though Skinner did not technically overrule Buck, the number of forced sterilizations dropped after the mid-1940s, due to both the legal uncertainty left by Skinner and the aftermath of the crimes committed during World War II. Still, while the right to procreate has been practically protected, it has not been explicitly recognized and analyzed under the Due Process Clause

 Buck v. Bell (1927)

Skinner v. Oklahoma (1942)
Voting Important Cases
In various places throughout the Constitution, citizens of the United States are expressly given certain voting rights. In Article I, Section 2, the people were given the right to vote for members of the House of Representatives. In the 17th Amendment, the people were given the right to vote for members of the Senate. In Article II, Section 1, the system of the Electoral College was set up (though technically states were given the right to choose how the Electors were chosen, in practice, this has meant a popular vote in each state for that state’s Electors).However, the Constitution makes no other guarantees with regard to voting. There are no constitutional provisions governing state or local elections. There are no provisions laying out the standards for voting for members of Congress. There are no provisions holding the states to any sort of uniform standard with regard to how they manage the Electors they send to the Electoral College.However, the Supreme Court has still recognized other requirements of voting, implicit in the Constitution. This concept is worth noting under the Due Process Clause even though the Court has generally tended to find that infringements of the right to vote are grounded in the Equal Protection Clause. The Court’s analyses of voting rights are excellent examples of the overlap between the Due Process Clause and the Equal Protection Clause. Infringements of either garner strict scrutiny review by the Court. The end result is the same, despite which path is taken.


Underpinning the very notion of voting is the democratic goal of equalizing the voices of the people. Even though poll taxes were invalidated in Harper v. Virginia State Board of Elections (1966) under the Equal Protection Clause, and the recount in the 2000 Presidential Election was invalidated in Bush v. Gore (2000) under the Equal Protection Clause, the right to vote is often included among the implied fundamental rights as guaranteed by the Due Process Clause.

 Baker v. Carr (1962)

Reynolds v. Sims (1964)

Harper v. Virginia State Board of Elections (1966)

Kramer v. Union Free School District (1969)

Bush v. Gore (2000)

Crawford v. Marion County Election Board (2008)
Education Important Cases
As mentioned, the Constitution does not guarantee affirmative rights. Meaning, unlike some other governments around the world and even some individual U.S. states, the U.S. Constitution makes no promises to provide things for the people like education and healthcare.Thus, the Court’s decision in San Antonio Independent School District v. Rodriguez (1973) makes perfect sense. In San Antonio, the Court held that a school district did not violate the Constitution when it financed its schools using surrounding property taxes, creating disparately funded schools. The challengers argued that education was essential to our democratic freedoms and should be included among the implied fundamental rights of the Due Process Clause. However, the Court rejected this argument, affirming the foundational principle that the Constitution does not provide affirmative rights.But less than a decade later, in Plyer v. Doe (1982), the Court invalidated a school district’s requiring undocumented children pay tuition for public school education. The Court said that it simply rejected this government action under rational basis review, which would fit with the typical approach to affirmative rights. However, the Court also said that it required “a showing that it furthers some substantial state interest,” a standard that is above what is required under rational basis review.


The dissent in Plyer admonished the majority for its inconsistency and for clouding the law regarding fundamental rights and education, accusing the majority of using a “quasi-fundamental right” analysis. The dissent was emphatic: “If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.”


Still, despite this case, the Court’s approach to affirmative rights remains relatively clear: none exist under the U.S. Constitution.

 San Antonio Independent School District v. Rodriguez (1973)

Plyler v. Doe (1982)
Travel Important Cases
While other implied fundamental rights may be only tenuously established or recognized by the Supreme Court, the right to travel within the United States has been repeatedly and explicitly acknowledged as being guaranteed by the 14th Amendment.For example, in Shapiro v. Thompson (1969), the Court invalidated a Connecticut law requiring a person to live in the state for at least one year before receiving welfare. Though the Court specifically cited to the Equal Protection Clause, again, there is often little or no difference between an analysis under that clause and under the Due Process Clause. Either way, a fundamental right to travel between states was found to have been abridged by such a statute hindering interstate travel.In Kent v. Dulles, the Supreme Court held that the right to travel was a liberty interest which could not be deprived without Due Process under the 5th Amendment. However, this right has been subject to restrictions in some cases, such as when national security is at issue. A denial of a passport to travel to Cuba (Zemel v. Rusk), as well as the detention of Japanese Americans during World War II (Korematsu v. United States) were both upheld as valid restrictions. Korematsu v. United States (1944)

Kent v. Dulles (1958)

Zemel v. Rusk (1965)

United States v. Guest (1966)

Shapiro v. Thompson (1969)

Saenz v. Roe (1999)

Procedural Due Process

Introduction Important Cases
Procedural Due Process, unlike its textual sibling, Substantive Due Process, is fairly self-evident from the words of the Constitution themselves. As stated in the Due Process Clause, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Meaning, if there is some government action (the federal government also being subject to these requirements through the 5th Amendment) seeking to deprive a person of life, liberty or property, then the government is required to afford some minimum amount of procedure to allow the person being deprived to reasonably defend himself or herself.Once there is some life-interest, liberty-interest, or (much more regularly) property-interest at stake, the government must provide the person with both reasonable notice and a reasonable opportunity to be heard. Reasonable notice, often governed by specific court rules, is often the more straightforward of the issues. Obviously, being told in person, far in advance of a trial (what is known as “service of process”) is reasonable. Different courts and public settings have different rules about other methods such as notice by mail or notice by publication in newspapers.Whether a person was afforded a reasonable opportunity to be heard, however, is generally less clear. Whether a decision rendered by the government was more or less than the minimum required by the Constitution is usually governed by the factors laid out in Mathews v. Elridge (1976). In Mathews, Procedural Due Process was implicated because a person’s social security benefits (and thus a property-interest) were being taken away. The government had suspended the benefits before a hearing was held. This person could still have challenged the suspension – but only after the benefits had actually been taken away. He wanted a pre-suspension hearing. However, the Court held this request to go beyond what the Constitution minimally requires, laying out several factors that now govern whether more process needs to be given: (1) What is the value of the private interest affected? (2) Is the risk of error in the decision-making process greater if more process is not given? (3) What is the benefit of additional process and safeguards? (4) Is the greater process requested too expensive or too time consuming for the government to have to engage in?


These factors all need to be balanced and considered in the many contexts in which Procedural Due Process arises, such as in administrative agency proceedings, public school and university hearings, public hospital staff firings, prisons, parental custody proceedings, etc.

 Mathews v. Eldridge (1976)Daimler AG v. Bauman
Examples Important Cases
The following examples illustrate some of the issues at play in Procedural Due Process cases.First, it is not always clear whether or not a property interest is at stake, without which, there is no triggering of a Procedural Due Process right. For example, in Board of Regents of State Colleges v. Roth (1972), an assistant professor at a state university, who only had a one-year contract, was fired without any sort of hearing. The Court, however, held that he was not entitled to a hearing because there was no property interest involved. He would have needed to have more than an abstract desire to possess the property (here, keep his job). He would have needed a legitimate claim of entitlement to the property, and must have he reasonably relied on his ownership not being undermined.A recent, and often controversial issue, is whether in the inmates at the Guantanamo Bay prison in Cuba are being denied a liberty interest by being held without access to the civilian courts. But in Hamdi v. Rumsfeld (2004), the Court held that – though the inmates did have a right to challenge their incarceration, the process owed them, considering Mathews (see above), was less than a civilian trial. Today, the process granted to these inmates comes in the form of what are called “Combatant Status Review Tribunals,” or ‘military-tribunals’ as they are more commonly known.Sometimes, other procedurally-related issues arise that are challenged under the Due Process Clause. For example, in Caperton v. A.T. Massey Coal Co. (2009), the Court held that having a West Virginia State Supreme Court Justice rule on a case – one party of which had donated millions of dollars to his election for justice – was an unconstitutional violation of Procedural Due Process. There was simply too significant of a conflict of interest for the justice not to recuse himself in this particular case. Board of Regents of State Colleges v. Roth (1972)

Perry v. Sindermann (1972)

Hamdi v. Rumsfeld (2004)

Caperton v. Massey Coal (2009)

Turner v. Rogers (2011)

Privileges or Immunities Clause

Historical Irrelevance Important Cases
Quickly following the ratification of the 14th Amendment, it became clear that there were certain rights housed in its language that were not necessarily explicit in the text. The 14th Amendment became the repository for both new fundamental rights as well as the place where the earlier amendments in the Bill of Rights became applicable to the states.However, if one were to look closely at the text of the 14th Amendment, without knowledge of which provisions stood for which principles, the words of the Privileges or Immunities Clause would likely seem like the most appropriate place for those rights. It may very well have been Congress initial intention for this clause to serve such a role.


However, instead of the Privileges or Immunities Clause, the Supreme Court has looked to the Due Process Clause to guarantee new implied fundamental rights and to house the earlier amendments.


In 1873, in a series of cases together known as The Slaughter-House Cases, the Court essentially gutted the Privileges or Immunities Clause and relegated it to a very limited function. In these cases, the city of New Orleans had essentially given a monopoly to certain meat slaughterhouses; and other slaughterhouses argued that the Privileges or Immunities Clause granted them certain rights to be free to operate their establishments freely. The Court, however, held that this clause did nothing but confer to rights which citizens of the United States as a whole are entitled to, such as access “access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas.” The Court explicitly rejected the notion that this clause had anything to do with civil rights.


These rights being as niche as they are, essentially rendered the Privileges or Immunities Clause a nullity.

 The Slaughter-House Cases (1873)

Presser v. Illinois (1886)
Modern Revival Important Cases
However, in recent years, the Privileges or Immunities Clause has experienced something of a revival, even if only a conceptual one. In Saenz v. Roe (1999), the Court invalidated a California law limiting welfare benefits to newly arrived residents as an unconstitutional violation of the right to travel between states unhindered. While a the right to travel had been long established as housed elsewhere in the 14th Amendment, here, the Court saw that right as one belonging to citizens of the United States as a whole. In other words, this right fit within the framework set up by the The Slaughter-House Cases (1873) as what is included within the guarantees of the Privileges or Immunities Clause. While this may seem to be mere an iteration of The Slaughter-House Cases (1873), it still expanded upon the short list expressly mentioned there.


The more noteworthy stirring of the Privileges or Immunities Clause, however, took place even more recently, in McDonald v. Chicago (2010). There, the Court was examining whether the 2nd Amendment should apply to the states through the 14th Amendment. The party arguing that it should apply to the states used both the Privileges or Immunities Clause and the Due Process Clause to make that argument. Thought the Court did find that the 2nd Amendment was applicable to the states, it did so only using the Due Process Clause.


Justice Alito, however, writing for the majority, did engage in a lengthy discussion of the history of the Privileges or Immunities Clause, beginning with the The Slaughter-House Cases (1873). But he concluded, as mentioned, that “We see no need to reconsider that interpretation [of using the Due Process Clause] here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.”


However, the decision in McDonald was 5 to 4, with several separate dissents and concurrences. Justice Thomas, in his concurrence, expressly signed on to the judgment of the Court and not its analysis. Instead, Justice Thomas rejected the Court’s historical interpretation of the Privileges or Immunities Clause. He sought to incorporate the Bill of Rights into the 14th Amendment, not through the Due Process Clause, but through the Privileges or Immunities Clause. Rejecting the Slaughter-House approach, Justice Thomas wrote, “I cannot agree that [the 2nd Amendment] is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”


This may yet be a minority opinion and not binding on the Supreme Court or the lower courts, but having been expressed by a Justice, it is no longer an opinion that is expressed by academics alone.

 Saenz v. Roe (1999)

McDonald v. Chicago (2010)

The Citizenship Clause

The Citizenship Clause Important Cases
The concept that a person born in the United States, regardless of that person’s parentage, is a citizen, is today governed by federal statutes. These citizenship laws both frame who becomes a citizen upon birth in the United States (everyone) and who becomes a citizen upon birth outside the United States (depends on the parents’ heritage and length of prior time spent in the United States). But underlying ‘birthright citizenship,’ is the 14th Amendment.


Though the notion of a a right to citizenship by virtue of birth was actually longstanding in the English common law (that body of law that formed the foundation of American law), its application before the passage of the 14th Amendment was inconsistent. In the Supreme Court case of Dred Scott v. Sanford (1857), the Court held that African Americans were not provided the guarantees of birthright citizenship. After the Civil War, therefore, this had to be repudiated. It was the 14th Amendment that did so.


The text of this Citizenship Clause is fairly straightforward and unqualified: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Still, it has given rise to some, but not much, litigation. For example, the case of Elk v. Watkins (1884) stood for the proposition that Native Americans were not, in fact, automatically brought under the umbrella of U.S. citizenship (something that was remedies with a federal law in the 1920s). The case of United States v. Wong Kim Ark (1898) solidified the notion that the Citizenship Clause was to be broadly interpreted as including even those children born on American soil to foreign-born (and non-U.S. citizen) parents. In Afroyim v. Rusk (1967), the Court held that the Citizenship Clause also precluded the U.S. government from stripping citizenship from a citizen without a voluntary repudiation by that person (and in practice, this liberalized the policies and laws regarding multiple citizenship).

 Dred Scott v. Sandford (1857)

Elk v. Watkins (1884)

United States v. Wong Kim Ark (1898)

Afroyim v. Rusk (1967)

The Question of Government Action

Introduction Important Cases
As a general rule, the Constitution does not give power to the federal government to pass laws to protect people against private actions. For example, the Equal Protection Clause guarantees equal protection for all – it protects against discrimination. Under this protection, the federal government may pass laws top enforce this guarantee. However, while Congress may pass a law to regulate states or other public actors, it may not pass a law to regulate private citizens. Your police department cannot discriminate against you on account of your race. However, your neighbor in the house down the block can be as bigoted as he so desires.


Naturally, there are exceptions to this rule. For example, the 13th Amendment outlaws slavery from existing entirely – either by the hands of public entities or private individuals. Certain clauses in the Constitution are also sometimes broadly interpreted to be able to affect private individuals in certain circumstances (see the Commerce Clause).


However, much of the analysis regarding regulations that may only affect government actors surrounds the issue of what a government actor actually is. Much of the time, the lines between government action and private action are blurred. When it is unclear as to which side of the line an entity falls on, courts may consider it to be a government actor, and thus trigger the particular constitutional provision in question.


This analysis of whether some action was private or public usually takes the form of a so-called totality of the circumstances test. This label only means that the various factors that make up the test are not to be considered as all completely mandatory – each one has weight. The question is whether, on balance, the factors weigh toward one side or the other. The private/public actor totality of the circumstances test often asks the following questions: Does a government entity have coercive power or control over the private actor doing the action in question? Is a government entity significantly encouraging the activity of the private actor? Is there some nexus between the government entity and the private actor – a symbiotic relationship, some interdependency, or some joint action? Is the private actor’s activity a traditional and exclusive public function?


If the weight of the answers to these questions lends to the conclusion that the action is actually public, a court will then apply the particular constitutional provision or guarantee that is at issue as if the action were being done by an unquestionably government entity.

 The Civil Rights Cases (1883)

CBS v. Democratic National Committee (1973)

United Stats v. Morrison (2000)
Examples of Government Action Important Cases

In Shelley v. Kramer (1948), the Court examined a private restrictive covenant. Restrictive covenants are agreements in real estate contracts that prevent one or both parties from doing something related to the land. Here, there was a restrictive covenant on a home that barred African Americans from being owners. Conceptually, this was a private covenant – an agreement between two private individuals who had originally put the covenant in place and now, a private seller and a private buyer. There were no governmental parties to either the original contract or the current sale in question. However, the Court still held that the 14th Amendment could apply. When such covenants are broken, it is the state – through its judicial system – that is asked to enforce them. It is courts that must step in to backup whatever has been written in the admittedly private agreement. So while the writing of such a racist restrictive covenant may not be constitutionally prohibited, the enforcement of such a covenant is prohibited. Practically, this renders all such covenants null and void.

 Smith v. Allwright (1944)

Marsh v. Alabama (1946)

Shelley v. Kraemer (1948)

Burton v. Wilmington Parking Authority (1961)

Norwood v. Harrison (1973)

Brentwood Academy v. Tennessee Secondary School Athletic Association (2007)
Examples of No Government Action Important Cases
The following are a few examples of when the Supreme Court has held that a private actor could not be regulated by the federal government because the action was too private to trigger the constitutional provision in question.


In Moose Lodge No. 107 v. Irvis (1972), the Court examined a private lodge’s policy of denying membership to non-white applicants. An African American had sued under Equal Protection Clause, arguing that the state’s affording of a liquor license converted the lodge into a state actor. The Court, however, rejected this argument. The connection between the state and the lodge was simply insufficient.


In Rendell-Baker v. Kohn (1982), the Court examined a school’s firing of certain employees after they spoke out against school policy. The former staff-members argued that their 1st Amendment rights had been violated. This private school happened to have been largely funded by the state through the government paying for special needs services that the public schools were not equipped to provide. However, the Court held that the state was akin to a private contractor. This was not like in Norwood (see above), where the school was subsidized. It may be worth noting, though, that a vocal dissent disagreed, holding that there was a close enough connection between the government and this private school to consider the firing to have been government action.

 Moose Lodge No. 107 v. Irvis (1972)

Rendell-Baker v. Kohn (1982)

San Francisco Arts and Athletics v. United States Olympic Committee (1987)

DeShaney v. Winnebago County (1989)

The Equal Protection Clause

Introduction to Equal Protection Important Cases
It can perhaps be said that the Equal Protection Clause is at the core of the 14th Amendment. After all, this amendment was passed in the wake of the Civil War in attempts to remedy some of injustices that led up to that war, like racial inequality and slavery. While slavery is specifically dealt with in the 13th Amendment, inequality is dealt with here.Though race and racial discrimination are still at the heart of the Equal Protection Clause, any unjust government classification – the singling out of one group or another – can be a violation of the Constitution.A modern analysis of an Equal Protection claim requires several steps within a larger framework. First, it must be determined if there has been government action in this instance. A federal, state, or local government may not be able to discriminate, but your neighbor is under no such restraint. Second, there needs to be some classification, some action taken by the government to single out one group from another.However, a government classification does not necessarily mean than a violation of the Equal Protection Clause has occurred. The group being singled out must be what is known as a “suspect class.” As best defined by a famous footnote in United States v. Carolene Products Co. (1938), a suspect class of people is one that is a “discrete and insular minorit[y].” These are generally groups that have been historically discriminated against. If no such group is being singled out, then the Court will likely not consider there to have been a violation of the Equal Protection Clause. The Court may still examine the government action, but it will do so while being as deferential to the legislature as possible. This low-level standard of review is known as “Rational Basis Review,” and is further explained below.If, however, the government classification does single out a suspect class, the Court will probably give the action what is known as “Strict Scrutiny,” or the Court’s least deferential standard of review. In this instance, the Court will ask if the government’s purpose for the classification of the suspect class is compelling and whether the action taken is narrowly tailored to that purpose. If the answer to either of these two questions is no, then the classification is an unconstitutional violation of the Equal Protection Clause.Some government actions easily fit this mold. Today, if a local government singled out African Americans and forbid them from serving as firemen, this would be almost certainly be considered unconstitutional. Pure racism is not a compelling government purpose, and even if the government would try and suggest a non-racially motivated purpose, it is likely that that such a blanket action is not narrowly tailored to anything compelling.But in other contexts, it can be more difficult to determine if a government classification is constitutional. Surely, African Americans are a suspect class and the victims of discrimination throughout the history of the United States. But what about women? Or Catholics? Or drug abusers?A blanket law forbidding a group from participating in an entire profession is may neither further a compelling purpose nor be narrowly tailored to that purpose. But what about laws that only incidentally and statistically affect race? What about single-sex schools? What about affirmative action?The Equal Protection Clause is broad – but its scope is not unlimited. Below you will find further analysis, as well as examples of how the Court has treated certain classified groups.


A few final introductory points. First, it should be noted that while the Equal Protection Clause, specifically, applies to state and local governments, everything included in that clause also applies to the federal government through the 5th Amendment. Second, in addition to the Rational Basis and Strict Scrutiny tiers of review and analysis, the Court has also applied an Intermediate level (which will be addressed in the ‘Gender’ section below). Third, while these tiers are not technically outcome determinative – a law can fail Rational Basis Review and pass Strict Scrutiny – they often are exactly that. In the vast majority of cases, once the Court decides that Strict Scrutiny is most appropriate, the law will be struck down. Usually, if the Court applies Rational Basis Review, the law is upheld. Third, this tiered system of review is not unique to Equal Protection. It is used in Substantive Due Process cases, 1st Amendment cases, and throughout the Constitution. It is a regular tool used by the Court to determine constitutionality.


Finally, though terms like Rational Basis Review (and its accompanying “legitimate purpose” and “rational relation”) and Strict Scrutiny (and its accompanying “compelling purpose” and “narrowly tailored”) are often used here as if they themselves are clear standards, they are often not. The Court may mention these terms, or not, and still apply an analogous framework. Or the Court may use these exact terms, and undertake an unfamiliar analysis. As has been suggested, these tiers of review may be best thought of less as precise tiers, and more as points on a spectrum. The greater the likelihood for some inappropriate action, the more closely the Court will look to determine if anything inappropriate took place. Indeed, the very notion of tiered review did not really emerge until Carolene Products Co., and the explicit use of Strict Scrutiny did not really take place until Korematsu v. United States (1944) .


Therefore, it’s important to keep in mind that, when reading the simplified descriptions of the cases below, the Court’s actual analysis may be much more subtle (or confusing) in the text of the case itself.

 United States v. Carolene Products Co. (1938)

Korematsu v. United States (1944)Schuette v. Coalition to Defend Affirmative Action
Rational Basis Review Important Cases
When the Court determines that a suspect class is not being burdened by some classification, it applies Rational Basis Review. This level of scrutiny is the most deferential to legislatures. Meaning, the Court will be more inclined to except the judgment of the law makers when they passed the law. Under Rational Basis Review, the Court looks to see whether the classification had a legitimate purpose and whether the government action had a rational relationship with that purpose. As long as both of these questions can be answered in the affirmative, the Court will uphold the law.For example, in Williamson v. Lee Optical (1955), a state government prohibited opticians from making glasses without being licensed optometrists. The purpose given for the law was eye patient protection. As opticians are not a suspect class, this law was given Rational Basis Review. Safety was considered a legitimate purpose and the means undertaken were rationally related to that purpose. Therefore, the law was upheld.Or, as another example, in New York Transit Authority v. Beazer (1979), a New York City agency ruled that methadone users (often taken by recovering drug addicts) could not work for the transit authority. The purpose given for the law was commuter safety. As recovering drug addicts are not a suspect class, this law was given Rational Basis Review. Safety was considered a legitimate purpose and the means undertaken were rationally related to that purpose. Therefore, the law was upheld.Two important points should be understood when considering Rational Basis Review. First, a law merits Rational Basis Review when it does not approach infringing upon any constitutional provision. Meaning, in Lee Optical, for example, the Court determined both that opticians were not a suspect class, and that the right to a successful optician business was not a fundamental right. Or, in Beazer, the Court determined both that methadone users were not a suspect class, and that the right to public employment was not a fundamental right. Quite often, the Court will analyze the Equal Protection Clause and Substantive Due Process together – even occasionally blurring the lines between the two.It is also crucial to note that, even under Rational Basis Review, prejudice alone is never a legitimate purpose. In other words, if the government is acting due to some express bias for bias’ sake, the Court will invalidate the action. Sometimes, the Court will look at a government purpose, which is not expressly prejudiced, and read prejudice, or animus, into the action as the true purpose. This is also known as “Rational Basis with Bite.” Some even consider it to be the Court breaking from the tiered review framework and applying some quasi-intermediate scrutiny. This is because for Rational Basis Review, the Court should be deferential to a government’s express purpose – not suspicious of an underhanded hidden motive. Regardless, the Court will sometimes view the government purpose given, even for a classification that does not affect a suspect class, as merely a sham for racism, hatred, or pure bias.Classic cases representative of Rational Basis Review with Bite include Department of Agriculture v. Moreno (1973) and City of Cleburne v. Cleburne Living Center, Inc. (1985).In Moreno, the Court examined the Food Stamp Act of 1964, which prohibited people who lived in households with unrelated individuals from obtaining food stamps. The express government purpose was the efficient administration of the program. Unrelated people living in one house was not a suspect class and the law was therefore given Rational Basis Review. However, even though efficient administration of a program may be legitimate in its own right, the Court saw this as merely bias and animus against an unpopular group (such as people who chose to live in commune-like communities), and an attempt to legislatively frustrate a certain way of living. This was prejudice as purpose, and not legitimate. Therefore, the Court invalidated the law.


In Cleburne, a city zoning commission had denied an application for a group home of mentally disabled men. The express government purpose was the allaying of the fears and concerns of the neighborhood’s other residents. Though the Court split on this particular point – the majority held that mentally disabled people were not a suspect class, and the law was therefore given Rational Basis Review. However, even though allaying fears of the neighborhood may be legitimate in its own right, the Court saw this as the government making a law simply out of animus and disdain for the mentally disabled. This was prejudice as purpose, and not legitimate. Therefore, the Court invalidated the law.

 Williamson v. Lee Optical (1955)

Department of Agriculture v. Moreno (1973)

New York Transit Authority v. Beazer (1979)

Minnesota v. Clover Leaf Creamery (1981)

City of Cleburne v. Cleburne Living Center, Inc. (1985)

Romer v. Evans (1996)
Racial Discrimination Important Cases
The movement toward racial equality in the United States has not always been a straightforward one. Obviously, before the Civil War, when slavery was still legal in many parts of the country, African Americans were not treated with the dignity owed all people. Nowhere is this more embodied in the history of the Supreme Court than in the case of Dred Scott v. Sandford (1857). In Dred Scott, the Court examined the case of an African American who claimed that, though once a slave, he was now automatically free for having traveled into a free state with his former master. The Court, however, rejected this argument. First, the Court held that the Constitution understood black individuals to be “beings of an inferior order.” They were not entitled to the protections of the Constitution and they were not citizens. Therefore, the Court could did not have even jurisdiction over them to be able to decide the case.Still, though, the Court also went on to analyze Dred Scott’s claim itself. The Court held that were a slave to automatically become free when traveling into a free state with his master, the master’s property rights would be unconstitutionally violated. Therefore, Dred Scott was not free.Certainly, in the wake of the Civil War and with the passage of the 13th Amendment, the evil that was slavery ended. However, even with the passage of the 14th Amendment, other evils persisted. The Equal Protection Clause only accomplished so much.In Plessy v. Ferguson (1896), the Court held that Louisiana’s racially separate railroad cars did not violate the Equal Protection Clause. Though the plaintiff made the argument that such separations result in inferior services for African Americans, the Court upheld “separate but equal” as constitutionally valid.Separate but equal persisted for over 50 years, until Brown v. Board of Education (1954), when the Court finally held that separate but equal was wholly unconstitutional. This case, specifically concerning public schools but having wide application, stood for the proposition that not only may facilities actually be unequal (in which case, even before Brown, a court may have found the separation invalid), but the very notion of segregation stigmatizes and creates a false sense of inferior and superior classes.Still, despite the uneven trajectory toward racial equality and even the not always successful efforts to implement Brown‘s mandate to desegregate schools and other government entities, racial classifications by the government, especially considering the above history, are generally given Strict Scrutiny by the Court. Dred Scott v. Sandford (1857)

Plessy v. Ferguson (1896)

Brown v. Board of Education (1954)

Baker v. Carr (1962)
Racial Discrimination and Strict Scrutiny Important Cases
As mentioned, government classifications based on race are generally given Strict Scrutiny. African Americans, and potentially other groups as well, are suspect classes and “discrete and insular minorities” that have been historical victims of prejudice and discrimination. As such, the Court will ask whether a particular classification has a compelling purpose and whether the action undertaken by the government is narrowly tailored to that purpose.An early example of the Equal Protection Clause invalidating a government classification can be found in Strauder v. West Virginia (1880). In Strauder, West Virginia passed a law prohibiting African Americans from serving on juries. The purpose given for this law was to ensure an educated and informed makeup of the jury, a purpose better protected by completely restricting potentially illiterate former slaves from participation. The Court understood African Americans to be the group for whom the 14th Amendment was specifically written, and thereby considered them akin to a suspect class, triggering a forerunner of the Strict Scrutiny analysis. Though educated and informed juries may itself be a compelling purpose, a blanket exclusion of African Americans was not a narrowly tailored way to achieve that goal. There were other ways to do so without this discriminatory action.Another landmark case involving racial classifications was Korematsu v. United States (1944). In Korematsu, an executive order was issued by President Roosevelt, and bolstered by Congress, giving military commanders the power to remove Japanese people from their homes in the United States and intern them in specially designated camps. This applied whether or not they were citizens. The government purpose given for this action was national security – as it took place during World War II. The country was at war with the Japanese and, especially after the attack on Pearl Harbor, the military feared an invasion of the West Coast (and help with that invasion from Japanese spies on U.S. soil).Here, the Court did consider the Japanese to be a suspect class; and therefore (and explicitly for the first time), the Court applied Strict Scrutiny. However, the Court decided both that the purpose of national security was compelling and that the means undertaken, the internment of the Japanese, was the most narrowly tailored way to further this particular purpose at this particular time. The internment, then, was held not to be unconstitutional.Finally, another important case in Equal Protection jurisprudence is Loving v. Virginia (1967). In Loving, a Virginia anti-miscegenation statute was challenged. These laws, on the books in other states at the time as well, forbid the intermarrying of people belonging to two different races. Virginia’s anti-miscegenation law criminalized marriage between one white person and other person from any different race, including African Americans.Overturning an earlier decision in Pace v. Alabama (1883), which found such statutes to be valid, the Court decided that anti-miscegenation laws were unconstitutional under both the Equal Protection Clause and Substantive Due Process. The Constitution did not permit “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment.” Strauder v. West Virginia (1880)

Pace v. Alabama (1883)

Korematsu v. United States (1944)

Loving v. Virginia (1967)
Disproportionate Discriminatory Impact Important Cases
It is often the case that a government will not engage in a specifically classifying action at all, but still act in a way that potentially triggers the Equal Protection Clause. In fact, government acts that explicitly discriminate – especially in the realm of race, today – are rare. Usually, a race-related challenge to government action under the Equal Protection Clause takes the form of a “Disparate Impact” or “Disproportionate Discriminatory Impact” challenge. Here, the government body is accused of doing something that may not have been expressly for the purpose of discrimination or classification, a law that is referred to as “facially neutral. Yet, in such challenges, the plaintiff asserts that the facially neutral law still impacts one group disproportionately.However, constitutionally, a racially disproportionate impact is not sufficient to implicate the Equal Protection Clause. For a racially facially neutral law to be unconstitutional, it must both have a disproportionate discriminatory impact and be motivated by what is known as “invidiousness.” In other words, though the law may appear neutral, it must be shown that it was actually motivated by some bias or prejudice. Without invidiousness, there is no constitutional violation.By way of example, in Washington v. Davis (1976), the Court examined a government test which measured reading ability for admission into the police academy. But this racially facially neutral action – purposed with building a police force that was able to properly communicate – had a disproportionate discriminatory impact: more African Americans failed the test than did white test takers. However, the Court found there to be no underlying invidiousness with regard to this action, and the law was then upheld under Rational Basis Review.Also, in McClesky v. Kemp (1987), an inmate on death row argued that the death penalty, though racially facially neutral, as implemented had a disproportionate discriminatory impact on those accused of killing white victims. However, the Court found there to be no underlying invidiousness with regard to this action, and the death penalty was upheld under Rational Basis Review.Finally, it also worth noting here – though it is somewhat tangential – that racially facially neutral laws can be challenged when administered in a prejudicial way. The early example of Yick Wo v. Hopkins (1886) probably provides the best illustration of this point. In Yick Wo, a San Francisco administrative board, by statute, was charged with managing applications to build laundromats. The statute as written was racially racially neutral; but while the majority of San Francisco’s laundromats were Chinese-owned, none of the Chinese applicants received the necessary permits, while the vast majority of white applicants did receive the permits. Even though the law may have been initially passed without invidiousness, the administration and application of the law did show bias and prejudice. Therefore, the Court struck down even the underlying statute as an unconstitutional violation of Equal Protection. Yick Wo v. Hopkins (1886)

Washington v. Davis (1976)

Arlington Heights v. Metropolitan Housing Corp. (1977)

McClesky v. Kemp (1987)
Affirmative Action Important Cases
Like government actions burdening suspect classes, government actions benefiting suspect classes are also given Strict Scrutiny. The most obvious method with which government (and private) entities benefit suspect classes are through programs known collectively as “affirmative action.” But affirmative action is not necessarily one type of program or action. Many different types of such programs have taken shape in various contexts. While some have been upheld as constitutional, others have been invalidated under the Equal Protection Clause.For example, in City of Richmond v. J.A. Croson Co. (1989), Richmond compelled general contractors in the city to hire at least 30% minority subcontractors for whatever work was needed. The purpose given for this requirement was remedying past discrimination. The plaintiffs in this case claimed what has become colloquially known as ‘reverse discrimination,’ where the majority group is unfairly burdened by a benefit specifically conferred on a suspect class. Even though, obviously, white subcontractors are not a suspect class, because this law was discriminatory and certainly not racially neutral, it was given Strict Scrutiny. During the case, the city produced insufficient evidence to suggest that it was remedying discrimination in the then-construction industry. Instead, truly, all the city was trying to accomplish was remedying past discrimination by awarding minority subcontractors at least 30% of the subcontracting business. The Court held that remedying past discrimination alone was not a compelling purpose under the Strict Scrutiny analysis. Nor was the city’s discriminatory approach to dealing with this issue narrowly tailored: the city could have undertaken a less- or non-discriminatory action. Thus, the law was invalidated.While Croson is a perfectly typical example of unconstitutional affirmative action, affirmative action is perhaps most often debated in the context of schools and education.The foundational case dealing with affirmative action in schools is Regents of the University of California v. Bakke (1978). In Bakke, the Court examined an affirmative action program at the U.C. Davis Medical School. In a fractured decision, producing no fewer than seven opinions (for nine Justices), the majority held that the program used by the school for admission was unconstitutional. According to the ruling in Bakke, while a system of affirmative action that considered the backgrounds of the applicants, including race, as another potential positive factor for admission would have been valid, the quota program in place at U.C. Davis, where seats were specifically set aside for minority applicants was unconstitutional. This type of program automatically meant that qualified applicants from groups not belonging to the benefited group would be denied admission solely on the basis of their race.Bakke, however, was not the end of the line of cases involving university admissions affirmative programs. In 2003, this topic was again revisited in a pair of rulings both involving the admissions process at the University of Michigan.In Grutter v. Bollinger (2003), the Court examined the admissions policy of the University of Michigan law school which, similar to the system recommended by the Court in Bakke, the school used the backgrounds of the applicants, including race, as positive factors for admission. However, in Gratz v. Bollinger (2003), the Court invalidated the admissions policy of the University of Michigan undergraduate school which, more akin to the unconstitutional approach of U.C. Davis in Bakke, the school automatically allotted automatic bonus points to students of particular races. This, then, was considered by the Court to not be sufficiently narrowly tailored (as it naturally applied Strict Scrutiny) and thus unconstitutional. Regents of the University of California v. Bakke (1978)

City of Richmond v. J.A. Croson Co. (1989)

Grutter v. Bollinger (2003)

Gratz v. Bollinger (2003)

Fisher v. University of Texas (2013)
Gender Important Cases
Somewhat, though not completely, uniquely, classifications based on gender are given what is known as “Intermediate Scrutiny.” Under this analysis, the Court looks to see whether the government action that classifies based on gender does so for an important government purpose, and whether the action taken to further that purpose is substantially related to it.For example, in Craig v. Boren (1976), the Court examined an Oklahoma statute that made the sale of light-alcohol beer illegal to men under under the age of 21, but only illegal to women under the age of 18. Here, the Court found no important government purpose behind this particular classification. The government action thus failed Intermediate Scrutiny and was unconstitutional.Additionally, in United States v. Virginia (1996), the Court examined the male-only admissions policy of the Virginia Military Institute, a public university. In response to an earlier lawsuit, the school had actually established a women’s branch with a much less physically intense program. But Justice Ginsburg, writing for the majority, analogized this action to when the University of Texas created a separate law school for African American applicants that was anything but equal. Though VMI argued that by opening its doors to both men and women, it would have to radically change the nature of the school, Justice Ginsburg rejected this charge as illusory. The school could not deny admission to women “simply because they are women.” As Justice Ginsburg strongly stated, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” Craig v. Boren (1976)

Mississippi University for Women v. Hogan (1982)

United States v. Virginia (1996)
Sexual Orientation Important Cases
Unlike government classifications which distinguish groups on the basis of race (these are get Strict Scrutiny) and government classifications which distinguish groups on the basis of gender (these get Intermediate Review), government classifications which distinguish on the basis of sexual orientation have been given Rational Basis Review by the Court.For example, in Romer v. Evans (1996), the Court examined an amendment to the Colorado Constitution. Through a state-wide referendum, Colorado added a provision in its constitution that prohibited anti-discrimination protections otherwise applied broadly, from being applicable to discrimination on the basis of sexual orientation. But though the Court did not view those with sexual preferences different from the majority as suspect classes – and thus applied Rational Basis Review – the Court did find that the amendment was grounded in animus and prejudice. Bias alone was not a legitimate purpose, even under Rational Basis Review. In other words, the Court applied Rational Basis Review “with Bite” (see Substantive Due Process) and invalidated the action.Also see the discussion on Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) in Substantive Due Process. Bowers v. Hardwick (1986)

Romer v. Evans (1996)

Lawrence v. Texas (2003)

Hollingsworth v. Perry (2013)
Alienage Important Cases
The issue of whether legal aliens (foreigners who are legally permitted to live and/or work in the United States but, for whatever reason are not citizens) are a suspect class is a unique one, subject to its own analysis based on the case of Sugarman v. Dougall (1973). But either way, grounding this issue is the fact that the 14th Amendment (Section 1) itself does not discriminate between citizens and non-citizens. It guarantees that states are not to “deny to any person within its jurisdiction the equal protection of the laws.”In Sugarman, the Court examined a N.Y. statute that prohibited aliens from obtaining any and all civil service jobs. The Court, then, essentially set up the following framework.Had the government action (here, the N.Y. statute) been federal, the Court would have applied the more deferential Rational Basis Review. Even though in the vast majority of cases, the protections of the 14th Amendment (Section 1) apply equally to the federal government through the 5th Amendment, Article I, Section 8 specifically grants Congress the power “To establish a uniform rule of naturalization.” This has been understood by the Court to give Congress and the federal government greater authority in the realm of immigration and laws dealing with aliens in general.The law in question in Sugarman, however, was a state action. In this context, the Court did decide that aliens are a suspect class. Meaning, they are a “discrete and insular minority,” to borrow the phrase from Carolene Products (see above “Introduction”). Therefore, generally, blanket discrimination such as was the case in Sugarman should be – and was – given Strict Scrutiny. The law was held by the Court to be unconstitutional.The Court also noted, however, that in some instances there could be a valid classification of legal aliens that was compellingly purposed enough to pass Strict Scrutiny. If the jobs in question are what has been called “sovereign function” jobs, in other words, the job involves the formulation or execution of broad public policy initiatives or the like, the state may have a compelling reason to exclude aliens from the position. For these types of classifications, only Rational Basis Review is applied. Still, in Sugarman, N.Y.’s law was significantly broader that this; and was thus invalidated. Sugarman v. Dougall (1973)
Voting Important Cases
The constitutional protection of voting is grounded in several provisions. Within the 14th Amendment, an implied fundamental right to vote has been somewhat established through Substantive Due Process. However, in an Equal Protection context, another voting-relating concept has emerged, so called “one person, one vote.” This concept means that within a given state or jurisdiction, one person’s vote should be roughly equal to another person’s vote. When a state’s district lines have been set up in a way to make certain area’s votes less influential than others, this is called a “gerry-mander”.Originally, the Court refused to become involved in cases involving legislative re-districting. The re-drawing of district lines always involves a heavy element of partisan politics, and the Court considered it a “political question” which the Court would not interfere with. This stance was taken in the case of Colegrove v. Green, a 1946 decision regarding re-districting in Illinois. Illinois had not re-drawn its district lines in over 60 years, during which the population within the state had shifted dramatically. This resulted in districts ranging in population size from roughly 100,000 to others over 900,000. Since each district had its own representatives, this meant voters in these smaller counties had much more powerful votes regarding their representation: in the example above, 9 times the power of a voter in the larger county. The Court refused to decide the question, stating that redistricting represents a “political thicket” that “Courts ought not to enter…” Justice Black wrote a dissent in which he argued that this unequal weight of voting power represented a violation of the Equal Protection Clause.In Baker v. Carr (1962), the Court held that re-districting of state legislative districts was a justiciable issue rather than a political question. The decision effectively rendered the decision in Colegrove unimportant. Colegrove had focused on Article I, Section 5, whereas Brennan’s plurality opinion in Colegrove focused on an Equal Protection analysis. Similarly to Colegrove, the state had not redrawn the lines of the voting districts – what’s known as “redistricting” – in half a century. As the populations of the districts changed over the years, some districts had more than triple – in one case more than ten times – the amount of people represented than other districts. This ruling was mirrored only 2 years later in Reynolds v. Sims (1964), another redistricting case (this time in Alabama) which codified the “one person, one vote” rule for state enate districts. The Court simultaneously decided Wesberry v. Sanders, which applied this rule to Congressional districts.Bush v. Gore (2000), the controversial case in which the Supreme Court decided to stop a Florida voting recount during the 2000 presidential election, was also decided on Equal Protection grounds. Earlier, the Florida Supreme Court had permitted a recount to occur. But the U.S. Supreme Court held that Florida’s statutory time limits for deciding on a winner of the election meant that such a recount would be rushed and standardless. Without a uniformly and fairly implemented recount, certain votes in certain counties would have possibly been given more weight than other votes in other counties. As a violation of the “one person, one vote” standard requiring by the Equal Protection Clause, this was unconstitutional. Colegrove v. Green (1946)

Baker v. Carr (1962)

Reynolds v. Sims (1964)

Harper v. Virginia State Board of Elections (1966)

Kramer v. Union Free School District (1969)

Crawford v. Marion County Election Board (2008)

Bush v. Gore (2000)

Incorporation of the Bill of Rights

Introduction Important Cases
The Bill of Rights – those first ten amendments to the Constitution – were originally written to apply to the federal government. Meaning, under the 1st Amendment, for example, the federal government could not infringe on someone’s freedom of speech, a state had no such restrictions on its power.For a century after the ratification of the Constitution and the Bill of Rights, this was the framework followed by the Supreme Court.


With the passage of the 14th Amendment, however, and the recognition of
Substantive Due Process rights housed within that amendment, the notion that the first ten amendments served to protect individuals against only overreaches of the federal government was undone. As the Due Process Clause of the 14th Amendment became the source of various other rights that were inherent to our system of freedoms and liberties, it also became the channel through which the amendments in the Bill of Rights became applicable to the states as well.


Two general schools of thought emerged as to how this should be done. Uniquely championed by Justice Hugo Black in the mid-20th Century, one approach was so-called “Total Incorporation.” Meaning, each one of the first eight amendments (the 9th Amendment and the 10th Amendment do not directly concern specific individual liberties) should be automatically and completely considered to be applicable to the states. This approach, however, did not garner support among Justice Black’s fellow Justices. Instead, from both before Justice Black, and since, the Court has engaged in what has become known as “Selective Incorporation.”


Under this approach, the Court examines the specific right being asserted by a litigant against a state and examines it under much the same (of not an identical) analysis as the Court considers an altogether separate implied fundamental right (see Substantive Due Process), like the right to privacy. If the rights guaranteed by the amendment are deemed so fundamental that an infringement of them by a state would be anathema to our system of liberties, then that right is incorporated by the 14th Amendment and is applicable to the states.


However, though the Total Incorporation approach has been conceptually rejected, in the century of Selective Incorporation, many – if not most – of the rights guaranteed by the first eight amendments have been brought to bear on the states by the Supreme Court.

 Barron v. Baltimore (1833)

Gitlow v. New York (1925)

Adamson v. California (1947)
Examples of Selectively Incorporated Amendments Important Cases
Under the doctrine of Selective Incorporation, each and every right or amendment is not applicable to the states unless explicitly made so by the Supreme Court.


The Establishment Clause which prevents the government from establishing religion) of the 1st Amendment, for example, was not incorporated until 1947, in Everson v. Board of Education. In that case, a lawsuit was brought challenging a New Jersey law which allowed public money to be used for school buses that transported children to and from both public and private schools. Ultimately, the Court decided that New Jersey was not in violation of the Establishment Clause. But still, the very consideration of the issue made it so that clause, formerly only applicable to the federal government, was now also applicable to the states.


Another recent and high profile example of Selective Incorporation took place in the Court’s decision in McDonald v. Chicago (2010). There, Chicago gun regulations were challenged as violations of the 2nd Amendment, the amendment that protects an individual’s “right to bear arms.” Again, the Court used the Due Process Clause to make the amendment, formerly applicable only to the federal government, now applicable to the states as well.

 Everson v. Board of Education (1947)

Wolf v. Colorado (1949)

Robinson v. California (1962)

Malloy v. Hogan (1964)

McDonald v. Chicago (2010)

Substantive Due Process

Introduction Important Cases

*By arriving here, you have found Substantive Due Process. If you meant to find Procedural Due Process.


The US Constitution, unlike other constitutions around the world, does not generally afford positive rights. Meaning, under the Constitution, federal and state governments do not have to affirmatively provide things for you. There is no constitutional right to access to healthcare. There is no constitutional right to public education and there is no constitutional right to employment. For an alternative vision of a national constitution that does provide such things, see the Constitution of South Africa.


However, the US Constitution does provide so-called negative rights. Meaning, under the Constitution, people have certain rights, freedom of speech, for example, that the government cannot infringe upon. Some of these rights are explicit. They are stated outright in the text of the Constitution. Some of these rights, though, are implied. Among the sources of the implied rights, the Due Process Clause is by far the richest. In addition to housing Procedural Due Process and being the bridge through which the Bill of Rights is applicable to the states, the Due Process Clause also guarantees substantive rights unto itself.


Conceptually, there may be no limit to the number of rights that can be derived from the Due Process Clause. As time has passed, the Supreme Court has found numerous such rights. The parameters, however, of what constitutes a right so fundamental as to be implied by the Due Process Clause have never been entirely concrete. To decide if a right is fundamental, the Court asks “whether the right…is fundamental to our scheme of ordered liberty…or whether this right is deeply rooted in our nation’s history and tradition.” Though this may sound more like a philosophical musing than a legal test, these phrases are at the core of what the Court has looked to in establishing implied fundamental rights.


Below, you will find examples of potential rights the Court has grappled with.


It is important to remember, however, that like with many other clauses in the Constitution, little is absolute. Simply because a right is found, does not mean that the government cannot constrict that right under certain circumstances. Once a fundamental right is established, the Court generally will then apply its most stringent level of review, what is known as “strict scrutiny.” Meaning, for a government action infringing on a fundamental right to be constitutional, the action must have a compelling purpose and the action must be narrowly tailored to that purpose. If the Court finds that this is not the case, the action will be unconstitutional.


Similarly, if a right is found not to be fundamental or protected by the Constitution, the Court will apply its least stringent level of review, what is known as “rational basis review.” Meaning, for a government action not infringing on a fundamental right, it need only have a legitimate purpose and the action must have a rational relationship to that purpose. Only if the Court finds this to not be the case will such an action be unconstitutional.


Finally, as an aside, the Due Process Clause in the 14th Amendment was modeled after the Due Process Clause of the 5th Amendment. The languages of the two amendments are nearly identical. This is fitting; because the 14th Amendment Due Process Clause was simply intended to extend to the states the same limitations as were placed on the federal government in the 5th Amendment. Therefore, it should be kept in mind that the analysis of Substantive Due Process and the various implied fundamental rights are the same whether infringed by a state government or the federal government. However, technically, when such a right is infringed upon by the federal government, protection is afforded by the 5th Amendment. When such a right is infringed upon by a state or local government, protection is afforded by the 14th Amendment.

 Meyer v. Nebraska (1923)

Pierce v. Society of Sisters (1925)

McDonald v. Chicago (2010)
Economic Liberty Important Cases
Economic Liberty, or Freedom of Contract as it is sometimes called, was at one time a centerpiece of the Court’s jurisprudence regarding Substantive Due Process. As early as 1897, in Allgeyer v. Louisana, the Court found there to be a fundamental right to freedom of contract. In that case, a Louisiana statute was passed prohibiting in-state companies from doing business with certain out-of-state companies. In typical lofty language, the Court held that liberty meant “not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”So the Lochner Era was born. This period, the decades during which the Supreme Court generally invalidated statutes that interfered with private businesses, is known as the Lochner Era because of the case that is considered to be at the heart of the once-prominent fundamental right to freedom of contract. In Lochner v. New York (1905), using strict scrutiny, the Court invalidated a NY statute prohibiting bakers from working more than 60 hours per week and/or 10 hours per day. Such laws may be commonplace today; but they were unconstitutional during this period. Upholding the bakers and employers’ desire to be free to work as they wished, the Court invalidated the statute.Under Lochner, the branches of the modern regulatory state (minimum wages, unemployment compensation insurance, social security, etc.) would all likely be unconstitutional. For example, in Hammer v. Dagenheart (1918), even child labor laws were invalidated.


By the Great Depression, however, with a seismic shift toward increased government involvement in businesses and employment, the Court shifted as well. In Nebbia v. New York (1934), without expressly rejecting the notion of a right to economic freedom, the Court nevertheless gave deference to the legislature and upheld a statute setting price controls for the dairy industry. By 1937, in West Coast Hotel Co. v. Parrish (1937), upholding the constitutionality of a minimum wage requirement, the Court explicitly repudiated the freedom of contract. “What is this freedom?” asked Chief Justice Hughes. “The Constitution does not speak of freedom of contract.” It is this approach that has held sway among the Justices ever since.


Today, some consider the demise of the Lochner Era and the rise of other Substantive Due Process rights to be inherently contradictory. But this theoretical debate aside, Economic Substantive Due Process no longer exists, while Non-Economic Substantive Due Process is alive and well.

 Mugler v. Kansas (1887)

Allgeyer v. Louisana (1897)

Lochner v. New York (1905)

Adair v. United States (1908)

Hammer v. Dagenhart (1918)

Bailey v. Drexel Furniture Co. (1922)

Nebbia v. New York (1934)

West Coast Hotel Co. v. Parrish (1937)

United States v. Carolene Products Co. (1938)

Fergusun v. Skrupa (1963)
Privacy Important Cases
The Right to Privacy can be found in many places throughout the Constitution. Various amendments in the Bill of Rights speak of protections against intrusions on private beliefs, private statements, and private homes.But the Court has also found a general Right to Privacy, one housed in the 14th Amendment. The notion that privacy is so fundamental so as to be a right granted by the Due Process Clause was foreshadowed early in the 20th Century. However, in modern jurisprudence, it is the case of Griswold v. Connecticut (1965) that set privacy’s place as an implied fundamental right.In Griswold, Connecticut had made it a crime for married couples to use contraception and for anyone to aid or abed them in that use. The Court, however, invalidated this statute under an implied fundamental right to privacy. Not all Justices adhering to the existence of this right did so under the Due Process Clause, however. The majority actually found “zones of privacy” emanating from the Bill of Rights, creating a sort of general gloss on those amendments that gave rise to the right to privacy. One Justice cited the 9th Amendment as a potential source for new rights, including this right to privacy. However, Justice Harlan, also writing his own opinion concurring in the judgment, found there to be a right to privacy in the notion of liberty as set forth in the Due Process Clause. Though his was not the majority approach in Griswold, it has had the most lasting significance. Meyer v. Nebraska (1923)

Pierce v. Society of Sisters (1925)

Griswold v. Connecticut (1965)

Eisenstadt v. Baird (1971)
Abortion Important Cases
In the nineteenth and early twentieth centuries, it was commonplace for a state to ban abortion. So, in 1969, when a young girl named Norma McCorvey wanted an abortion in her home state of Texas where such an act was illegal, she had little recourse. Ms. McCorvery sought help from two local attorneys who brought the case up to the U.S. Supreme Court. Though the baby had long been born when Roe v. Wade was eventually decided in 1973, this case changed the landscape of abortion law and is still cited today by both pro-life and pro-choice advocates alike.As was framed by the Court in Roe, the constitutionality of abortion restrictions presents unique questions. Simply put, there are several competing interests at play. On the one hand, as stated above, there is a woman’s right to privacy as was emphasized in Griswold. But on the other hand, there is a state’s potential interest in protecting the life of the fetus. Framing both sides of this issue is the aim of protecting the mother’s health.The Court found that abortion restrictions do infringe upon a woman’s right to privacy. Though the question was raised, the Court also held that the fetus was not a person under the constitution. To show that constitutional protection did not extend to the fetus, the Court cited to various uses of the word “person” in the Constitution that, in context, could only be referring to a born person. Therefore, according to the Court, abortion doesn’t pit the constitutionally protected privacy of the mother against the constitutionally protected life of the child.


However, the Court still recognized other potential government interests, such as mitigating the health risks of obtaining an abortion, and protecting a “potential person.” To resolve the balancing of these interests, the Court somewhat uniquely created what came to be known as the “trimester framework.” Meaning, instead of looking to the violation of the Due Process Right to privacy and applying ordinary strict scrutiny to restrictions and the purposes behind those restrictions, the Court creating another, separate analysis singularly for abortion restrictions. This test resembled strict scrutiny but used the three trimesters of a pregnancy as guideposts for balancing the value of the potential life of the fetus, and health and privacy of the mother. The trimester framework has since been abandoned by the Court, but Roe still today stands for the proposition that government does not have a blank check to prohibit all abortions.


Instead of the trimester framework, the modern test for the constitutionality of abortion restrictions comes from the Court’s decision in Planned Parenthood of Southern Pennsylvania v. Casey (1992). This case, challenging some abortion restrictions passed by Pennsylvania, was thought by many to be the one that would see Roe overturned, considering the changes that the makeup of the Court had undergone in the decades since Roe was decided. Though the trimester framework was rejected by the Court, Roe‘s central premise, that woman has a privacy right to choose to have an abortion, was affirmed.


Justice O’Conner, writing for the plurality opinion in Casey, felt that Roe had undervalued the potential life of the fetus. She established a test that turned on what she called an “undue burden.” Under this test, for a viable fetus, government may completely ban abortion. But for a fetus that is not yet viable, if the state restriction has the effect of placing a substantial obstacle in the path of a woman seeking an abortion, this restriction is an undue burden and is unconstitutional. If the state restriction does not place a substantial obstacle in the way of a woman’s choice, even if a state measure is designed to persuade her to choose childbirth over abortion, the measure will be upheld.


Justice O’Conner used this test to uphold an informed consent provision where, except for a medical emergency, a woman must wait at least 24 hours after her physician describes the nature of the procedure, risks of the procedure, and the probable gestational age of the unborn child to get an abortion. But the Court also invalidated a spousal consent provision where a wife needed consent from her husband to obtain an abortion.


Today, under this standard, strict scrutiny is not given to abortion laws; and instead, the undue burden test is applied.

  Roe v. Wade (1973)

Doe v. Bolton (1973)

City of Akron v. Akron Center for Reproductive Health (1983)

Thornburgh v. American College of Obstetricians and Gynecologists (1986)

Planned Parenthood of Southern Pennsylvania v. Casey (1992)

Gonzales v. Carhart (2007)
Family Association Important Cases
Sometimes referred to as the implied fundamental right to intimate association, strict scrutiny may also be triggered for the abridgement of a person’s right to associate himself or herself with close family, and define that family as he or she chooses (note: this should not be confused with the right to expressive association under the 1st Amendment). Conceptually, this is yet another branch of the right to privacy as established in Griswold.For example, in Moore v. East Cleveland (1977), the Court invalidated an ordinance restricting housing to a single nuclear family. The plaintiffs in that case were an extended family including a grandmother, nephews, and cousins. The Court held that this ordinance was not narrowly tailored to the purported government objectives of mitigating traffic and reducing financial burdens on public schools. Michael H. v. Gerald D. (1989)

Stanley v. Illinois (1977)

Moore v. East Cleveland (1977)

Zablocki v. Redhail (1978)

Troxel v. Granville (2000)

Hollingsworth v. Perry (2013)
Sexual Privacy Important Cases
The question of whether consenting adults have a fundamental right to engage in sexual conduct of their choosing has proven to be a contentious issue both for the public and for the Supreme Court.In 1986, in Bowers v. Hardwick, the Court examined the constitutionality of a Georgia statute of the type known as a “sodomy law.” These laws criminalize certain sexual behavior. In this case, two men were arrested under a statute that prohibited oral and anal sex between partners. The plaintiffs brought suit against the statute itself, alleging that it infringed upon yet another iteration of the implied fundamental right to privacy. But the Court rejecting this argument, holding that [p]roscriptions against that conduct have ancient roots…to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.”But only 17 years later, the Court reversed itself in something of a confusing manner. In Lawrence v. Texas (2003), a gay couple was arrested under a Texas sodomy law. Here, however, the Court invalidated the statute. Justice Kennedy, writing for the majority, penned a lofty tribute to personal freedoms: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”


Yet, despite this language, Justice Kennedy did not apply strict scrutiny to the Texas statute. Meaning, he still did not believe that the right to exercise that liberty rose to the level of a fundamental right. Instead, he applied rational basis review, the lowest level of review with the greatest discretion afforded to legislatures, and invalidated the statute nonetheless.


This confusing analysis has left lower courts struggling to understand the place that sexual privacy holds on the spectrum of constitutional freedoms, though not necessarily to the degree that Justice Kennedy, dissenting in Lawrence, anticipated. Ultimately, what is clear from Lawrence, is that Bowers has been repudiated.


Tangentially, Justice O’Conner, who had actually been in the majority in Bowers, wrote her own concurrence in Lawrence. She approved of the invalidation of the Texas sodomy law; but she did not agree with Justice Kennedy’s analysis. Instead of focusing on Substantive Due Process and implied fundamental rights, Justice O’Conner felt that the statute in question in Lawrence violated the Equal Protection Clause.


Justice O’Conner felt that the statute in Lawrence, which specifically criminalized sexual conduct between homosexual partners unconstitutionally singled out one group from others, while the statute in Bowers was technically drafted to apply to both homosexual and heterosexual partners. Justice O’Conner used this analysis to characteristically split the difference between Bowers and Lawrence, holding that both cases were correctly decided, instead of holding that Lawrence overruled Bowers.

 Bowers v. Hardwick (1986)

Lawrence v. Texas (2003)
Procreation Important Cases
Like many other implied rights, the contours of an implied fundamental right to procreate are blurry, if any such right even exists at all.In Buck v. Bell (1927), the Court examined a Virginia statute that authorized the compulsory sterilization of the mentally challenged. The Court upheld the statute in this case, calling the particular woman for whom the lawsuit was brought “a feeble minded white woman…daughter of a feeble minded mother…and the mother of an illegitimate feeble minded child.” Technically, Buck has never been overruled.However, less than twenty years later, in Skinner v. Oklahoma (1942), another suit was brought, this time challenging an Oklahoma statute requiring the sterilization of repeat offender criminals that committed certain felonies. The Court unanimously invalidated the statute in Skinner using strict scrutiny. The opinion expressed the sacrosanct nature of the right that is the ability to have children: “Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”


However, the Court did not use the Due Process Clause to invalidate the statute. After expressing the above unequivocal sentiment, the Court applied strict scrutiny under the Equal Protection Clause. Meaning, the statute was not unconstitutional because it infringed on some fundamental right as housed in the Due Process Clause. Instead, the statute was unconstitutional because it unconstitutionally treated people differently. In the Oklahoma statute, only some criminals were subject to the sterilizations, leaving out white-collar criminals entirely. It was this classification that triggered strict scrutiny, rendering the statute invalid.


But though Skinner did not technically overrule Buck, the number of forced sterilizations dropped after the mid-1940s, due to both the legal uncertainty left by Skinner and the aftermath of the crimes committed during World War II. Still, while the right to procreate has been practically protected, it has not been explicitly recognized and analyzed under the Due Process Clause

 Buck v. Bell (1927)

Skinner v. Oklahoma (1942)
Voting Important Cases
In various places throughout the Constitution, citizens of the United States are expressly given certain voting rights. In Article I, Section 2, the people were given the right to vote for members of the House of Representatives. In the 17th Amendment, the people were given the right to vote for members of the Senate. In Article II, Section 1, the system of the Electoral College was set up (though technically states were given the right to choose how the Electors were chosen, in practice, this has meant a popular vote in each state for that state’s Electors).However, the Constitution makes no other guarantees with regard to voting. There are no constitutional provisions governing state or local elections. There are no provisions laying out the standards for voting for members of Congress. There are no provisions holding the states to any sort of uniform standard with regard to how they manage the Electors they send to the Electoral College.However, the Supreme Court has still recognized other requirements of voting, implicit in the Constitution. This concept is worth noting under the Due Process Clause even though the Court has generally tended to find that infringements of the right to vote are grounded in the Equal Protection Clause. The Court’s analyses of voting rights are excellent examples of the overlap between the Due Process Clause and the Equal Protection Clause. Infringements of either garner strict scrutiny review by the Court. The end result is the same, despite which path is taken.


Underpinning the very notion of voting is the democratic goal of equalizing the voices of the people. Even though poll taxes were invalidated in Harper v. Virginia State Board of Elections (1966) under the Equal Protection Clause, and the recount in the 2000 Presidential Election was invalidated in Bush v. Gore (2000) under the Equal Protection Clause, the right to vote is often included among the implied fundamental rights as guaranteed by the Due Process Clause.

 Baker v. Carr (1962)

Reynolds v. Sims (1964)

Harper v. Virginia State Board of Elections (1966)

Kramer v. Union Free School District (1969)

Bush v. Gore (2000)

Crawford v. Marion County Election Board (2008)
Education Important Cases
As mentioned, the Constitution does not guarantee affirmative rights. Meaning, unlike some other governments around the world and even some individual U.S. states, the U.S. Constitution makes no promises to provide things for the people like education and healthcare.Thus, the Court’s decision in San Antonio Independent School District v. Rodriguez (1973) makes perfect sense. In San Antonio, the Court held that a school district did not violate the Constitution when it financed its schools using surrounding property taxes, creating disparately funded schools. The challengers argued that education was essential to our democratic freedoms and should be included among the implied fundamental rights of the Due Process Clause. However, the Court rejected this argument, affirming the foundational principle that the Constitution does not provide affirmative rights.But less than a decade later, in Plyer v. Doe (1982), the Court invalidated a school district’s requiring undocumented children pay tuition for public school education. The Court said that it simply rejected this government action under rational basis review, which would fit with the typical approach to affirmative rights. However, the Court also said that it required “a showing that it furthers some substantial state interest,” a standard that is above what is required under rational basis review.


The dissent in Plyer admonished the majority for its inconsistency and for clouding the law regarding fundamental rights and education, accusing the majority of using a “quasi-fundamental right” analysis. The dissent was emphatic: “If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.”


Still, despite this case, the Court’s approach to affirmative rights remains relatively clear: none exist under the U.S. Constitution.

 San Antonio Independent School District v. Rodriguez (1973)

Plyler v. Doe (1982)
Travel Important Cases
While other implied fundamental rights may be only tenuously established or recognized by the Supreme Court, the right to travel within the United States has been repeatedly and explicitly acknowledged as being guaranteed by the 14th Amendment.For example, in Shapiro v. Thompson (1969), the Court invalidated a Connecticut law requiring a person to live in the state for at least one year before receiving welfare. Though the Court specifically cited to the Equal Protection Clause, again, there is often little or no difference between an analysis under that clause and under the Due Process Clause. Either way, a fundamental right to travel between states was found to have been abridged by such a statute hindering interstate travel.In Kent v. Dulles, the Supreme Court held that the right to travel was a liberty interest which could not be deprived without Due Process under the 5th Amendment. However, this right has been subject to restrictions in some cases, such as when national security is at issue. A denial of a passport to travel to Cuba (Zemel v. Rusk), as well as the detention of Japanese Americans during World War II (Korematsu v. United States) were both upheld as valid restrictions. Korematsu v. United States (1944)

Kent v. Dulles (1958)

Zemel v. Rusk (1965)

United States v. Guest (1966)

Shapiro v. Thompson (1969)

Saenz v. Roe (1999)

Procedural Due Process

Introduction Important Cases
Procedural Due Process, unlike its textual sibling, Substantive Due Process, is fairly self-evident from the words of the Constitution themselves. As stated in the Due Process Clause, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Meaning, if there is some government action (the federal government also being subject to these requirements through the 5th Amendment) seeking to deprive a person of life, liberty or property, then the government is required to afford some minimum amount of procedure to allow the person being deprived to reasonably defend himself or herself.Once there is some life-interest, liberty-interest, or (much more regularly) property-interest at stake, the government must provide the person with both reasonable notice and a reasonable opportunity to be heard. Reasonable notice, often governed by specific court rules, is often the more straightforward of the issues. Obviously, being told in person, far in advance of a trial (what is known as “service of process”) is reasonable. Different courts and public settings have different rules about other methods such as notice by mail or notice by publication in newspapers.Whether a person was afforded a reasonable opportunity to be heard, however, is generally less clear. Whether a decision rendered by the government was more or less than the minimum required by the Constitution is usually governed by the factors laid out in Mathews v. Elridge (1976). In Mathews, Procedural Due Process was implicated because a person’s social security benefits (and thus a property-interest) were being taken away. The government had suspended the benefits before a hearing was held. This person could still have challenged the suspension – but only after the benefits had actually been taken away. He wanted a pre-suspension hearing. However, the Court held this request to go beyond what the Constitution minimally requires, laying out several factors that now govern whether more process needs to be given: (1) What is the value of the private interest affected? (2) Is the risk of error in the decision-making process greater if more process is not given? (3) What is the benefit of additional process and safeguards? (4) Is the greater process requested too expensive or too time consuming for the government to have to engage in?


These factors all need to be balanced and considered in the many contexts in which Procedural Due Process arises, such as in administrative agency proceedings, public school and university hearings, public hospital staff firings, prisons, parental custody proceedings, etc.

 Mathews v. Eldridge (1976)Daimler AG v. Bauman
Examples Important Cases
The following examples illustrate some of the issues at play in Procedural Due Process cases.First, it is not always clear whether or not a property interest is at stake, without which, there is no triggering of a Procedural Due Process right. For example, in Board of Regents of State Colleges v. Roth (1972), an assistant professor at a state university, who only had a one-year contract, was fired without any sort of hearing. The Court, however, held that he was not entitled to a hearing because there was no property interest involved. He would have needed to have more than an abstract desire to possess the property (here, keep his job). He would have needed a legitimate claim of entitlement to the property, and must have he reasonably relied on his ownership not being undermined.A recent, and often controversial issue, is whether in the inmates at the Guantanamo Bay prison in Cuba are being denied a liberty interest by being held without access to the civilian courts. But in Hamdi v. Rumsfeld (2004), the Court held that – though the inmates did have a right to challenge their incarceration, the process owed them, considering Mathews (see above), was less than a civilian trial. Today, the process granted to these inmates comes in the form of what are called “Combatant Status Review Tribunals,” or ‘military-tribunals’ as they are more commonly known.Sometimes, other procedurally-related issues arise that are challenged under the Due Process Clause. For example, in Caperton v. A.T. Massey Coal Co. (2009), the Court held that having a West Virginia State Supreme Court Justice rule on a case – one party of which had donated millions of dollars to his election for justice – was an unconstitutional violation of Procedural Due Process. There was simply too significant of a conflict of interest for the justice not to recuse himself in this particular case. Board of Regents of State Colleges v. Roth (1972)

Perry v. Sindermann (1972)

Hamdi v. Rumsfeld (2004)

Caperton v. Massey Coal (2009)

Turner v. Rogers (2011)

Privileges or Immunities Clause

Historical Irrelevance Important Cases
Quickly following the ratification of the 14th Amendment, it became clear that there were certain rights housed in its language that were not necessarily explicit in the text. The 14th Amendment became the repository for both new fundamental rights as well as the place where the earlier amendments in the Bill of Rights became applicable to the states.However, if one were to look closely at the text of the 14th Amendment, without knowledge of which provisions stood for which principles, the words of the Privileges or Immunities Clause would likely seem like the most appropriate place for those rights. It may very well have been Congress initial intention for this clause to serve such a role.


However, instead of the Privileges or Immunities Clause, the Supreme Court has looked to the Due Process Clause to guarantee new implied fundamental rights and to house the earlier amendments.


In 1873, in a series of cases together known as The Slaughter-House Cases, the Court essentially gutted the Privileges or Immunities Clause and relegated it to a very limited function. In these cases, the city of New Orleans had essentially given a monopoly to certain meat slaughterhouses; and other slaughterhouses argued that the Privileges or Immunities Clause granted them certain rights to be free to operate their establishments freely. The Court, however, held that this clause did nothing but confer to rights which citizens of the United States as a whole are entitled to, such as access “access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas.” The Court explicitly rejected the notion that this clause had anything to do with civil rights.


These rights being as niche as they are, essentially rendered the Privileges or Immunities Clause a nullity.

 The Slaughter-House Cases (1873)

Presser v. Illinois (1886)
Modern Revival Important Cases
However, in recent years, the Privileges or Immunities Clause has experienced something of a revival, even if only a conceptual one. In Saenz v. Roe (1999), the Court invalidated a California law limiting welfare benefits to newly arrived residents as an unconstitutional violation of the right to travel between states unhindered. While a the right to travel had been long established as housed elsewhere in the 14th Amendment, here, the Court saw that right as one belonging to citizens of the United States as a whole. In other words, this right fit within the framework set up by the The Slaughter-House Cases (1873) as what is included within the guarantees of the Privileges or Immunities Clause. While this may seem to be mere an iteration of The Slaughter-House Cases (1873), it still expanded upon the short list expressly mentioned there.


The more noteworthy stirring of the Privileges or Immunities Clause, however, took place even more recently, in McDonald v. Chicago (2010). There, the Court was examining whether the 2nd Amendment should apply to the states through the 14th Amendment. The party arguing that it should apply to the states used both the Privileges or Immunities Clause and the Due Process Clause to make that argument. Thought the Court did find that the 2nd Amendment was applicable to the states, it did so only using the Due Process Clause.


Justice Alito, however, writing for the majority, did engage in a lengthy discussion of the history of the Privileges or Immunities Clause, beginning with the The Slaughter-House Cases (1873). But he concluded, as mentioned, that “We see no need to reconsider that interpretation [of using the Due Process Clause] here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.”


However, the decision in McDonald was 5 to 4, with several separate dissents and concurrences. Justice Thomas, in his concurrence, expressly signed on to the judgment of the Court and not its analysis. Instead, Justice Thomas rejected the Court’s historical interpretation of the Privileges or Immunities Clause. He sought to incorporate the Bill of Rights into the 14th Amendment, not through the Due Process Clause, but through the Privileges or Immunities Clause. Rejecting the Slaughter-House approach, Justice Thomas wrote, “I cannot agree that [the 2nd Amendment] is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”


This may yet be a minority opinion and not binding on the Supreme Court or the lower courts, but having been expressed by a Justice, it is no longer an opinion that is expressed by academics alone.

 Saenz v. Roe (1999)

McDonald v. Chicago (2010)

The Citizenship Clause

The Citizenship Clause Important Cases
The concept that a person born in the United States, regardless of that person’s parentage, is a citizen, is today governed by federal statutes. These citizenship laws both frame who becomes a citizen upon birth in the United States (everyone) and who becomes a citizen upon birth outside the United States (depends on the parents’ heritage and length of prior time spent in the United States). But underlying ‘birthright citizenship,’ is the 14th Amendment.


Though the notion of a a right to citizenship by virtue of birth was actually longstanding in the English common law (that body of law that formed the foundation of American law), its application before the passage of the 14th Amendment was inconsistent. In the Supreme Court case of Dred Scott v. Sanford (1857), the Court held that African Americans were not provided the guarantees of birthright citizenship. After the Civil War, therefore, this had to be repudiated. It was the 14th Amendment that did so.


The text of this Citizenship Clause is fairly straightforward and unqualified: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Still, it has given rise to some, but not much, litigation. For example, the case of Elk v. Watkins (1884) stood for the proposition that Native Americans were not, in fact, automatically brought under the umbrella of U.S. citizenship (something that was remedies with a federal law in the 1920s). The case of United States v. Wong Kim Ark (1898) solidified the notion that the Citizenship Clause was to be broadly interpreted as including even those children born on American soil to foreign-born (and non-U.S. citizen) parents. In Afroyim v. Rusk (1967), the Court held that the Citizenship Clause also precluded the U.S. government from stripping citizenship from a citizen without a voluntary repudiation by that person (and in practice, this liberalized the policies and laws regarding multiple citizenship).

 Dred Scott v. Sandford (1857)

Elk v. Watkins (1884)

United States v. Wong Kim Ark (1898)

Afroyim v. Rusk (1967)

The Question of Government Action

Introduction Important Cases
As a general rule, the Constitution does not give power to the federal government to pass laws to protect people against private actions. For example, the Equal Protection Clause guarantees equal protection for all – it protects against discrimination. Under this protection, the federal government may pass laws top enforce this guarantee. However, while Congress may pass a law to regulate states or other public actors, it may not pass a law to regulate private citizens. Your police department cannot discriminate against you on account of your race. However, your neighbor in the house down the block can be as bigoted as he so desires.


Naturally, there are exceptions to this rule. For example, the 13th Amendment outlaws slavery from existing entirely – either by the hands of public entities or private individuals. Certain clauses in the Constitution are also sometimes broadly interpreted to be able to affect private individuals in certain circumstances (see the Commerce Clause).


However, much of the analysis regarding regulations that may only affect government actors surrounds the issue of what a government actor actually is. Much of the time, the lines between government action and private action are blurred. When it is unclear as to which side of the line an entity falls on, courts may consider it to be a government actor, and thus trigger the particular constitutional provision in question.


This analysis of whether some action was private or public usually takes the form of a so-called totality of the circumstances test. This label only means that the various factors that make up the test are not to be considered as all completely mandatory – each one has weight. The question is whether, on balance, the factors weigh toward one side or the other. The private/public actor totality of the circumstances test often asks the following questions: Does a government entity have coercive power or control over the private actor doing the action in question? Is a government entity significantly encouraging the activity of the private actor? Is there some nexus between the government entity and the private actor – a symbiotic relationship, some interdependency, or some joint action? Is the private actor’s activity a traditional and exclusive public function?


If the weight of the answers to these questions lends to the conclusion that the action is actually public, a court will then apply the particular constitutional provision or guarantee that is at issue as if the action were being done by an unquestionably government entity.

 The Civil Rights Cases (1883)

CBS v. Democratic National Committee (1973)

United Stats v. Morrison (2000)
Examples of Government Action Important Cases

In Shelley v. Kramer (1948), the Court examined a private restrictive covenant. Restrictive covenants are agreements in real estate contracts that prevent one or both parties from doing something related to the land. Here, there was a restrictive covenant on a home that barred African Americans from being owners. Conceptually, this was a private covenant – an agreement between two private individuals who had originally put the covenant in place and now, a private seller and a private buyer. There were no governmental parties to either the original contract or the current sale in question. However, the Court still held that the 14th Amendment could apply. When such covenants are broken, it is the state – through its judicial system – that is asked to enforce them. It is courts that must step in to backup whatever has been written in the admittedly private agreement. So while the writing of such a racist restrictive covenant may not be constitutionally prohibited, the enforcement of such a covenant is prohibited. Practically, this renders all such covenants null and void.

 Smith v. Allwright (1944)

Marsh v. Alabama (1946)

Shelley v. Kraemer (1948)

Burton v. Wilmington Parking Authority (1961)

Norwood v. Harrison (1973)

Brentwood Academy v. Tennessee Secondary School Athletic Association (2007)
Examples of No Government Action Important Cases
The following are a few examples of when the Supreme Court has held that a private actor could not be regulated by the federal government because the action was too private to trigger the constitutional provision in question.


In Moose Lodge No. 107 v. Irvis (1972), the Court examined a private lodge’s policy of denying membership to non-white applicants. An African American had sued under Equal Protection Clause, arguing that the state’s affording of a liquor license converted the lodge into a state actor. The Court, however, rejected this argument. The connection between the state and the lodge was simply insufficient.


In Rendell-Baker v. Kohn (1982), the Court examined a school’s firing of certain employees after they spoke out against school policy. The former staff-members argued that their 1st Amendment rights had been violated. This private school happened to have been largely funded by the state through the government paying for special needs services that the public schools were not equipped to provide. However, the Court held that the state was akin to a private contractor. This was not like in Norwood (see above), where the school was subsidized. It may be worth noting, though, that a vocal dissent disagreed, holding that there was a close enough connection between the government and this private school to consider the firing to have been government action.

 Moose Lodge No. 107 v. Irvis (1972)

Rendell-Baker v. Kohn (1982)

San Francisco Arts and Athletics v. United States Olympic Committee (1987)

DeShaney v. Winnebago County (1989)

The End of the Three-Fifths Compromise

The End of the Three-Fifths Compromise Important Cases
As with Section 1 of the 14th Amendment, this section – and the remaining sections – were originally written in direct response to the Civil War. Before the passage of this amendment, in Antebellum (Pre-Civil War) America, the number of delegates sent by each state to the House of Representatives was governed by Article I, Section 2, Clause 3. There, the House was created as a legislative body whose numbers reflected the populations of the respective states (unlike in the Senate, where each state sends 2 representatives, regardless of population).


During the Constitutional Convention, however, a compromise was needed. In the southern states, there were many black slaves who, if counted toward the population for the House, would have given the south what the north saw as an unfair advantage. The southern states wanted more representation in the Congress – and sought to have the slaves (even though they were slaves) counted among the rest of the citizens. The northern states wanted the slaves to not count toward the population numbers of the states.


The compromise that was settled on, then, became known as the “Three-Fifths Compromise.” The black slaves in the southern states would neither be counted as whole persons nor not counted at all. Rather, each slave was considered to be 3/5 of a person.


In the wake of the Civil War, however, this would no longer do. The slaves were freed (through the Emancipation Proclamation and, later, the 13th Amendment). Thus, this section of 14th Amendment remedies the stain on the original Constitution and overrides Article I, Section 2, Clause 3. For purposes of counting populations for representation in the House of Representatives, “the whole number of persons in each State” must be counted.

 
Consequences of Denying the Right to Vote Important Cases
Though it has never been carried out, this section of the 14th Amendment also carries with it a threat: for any state which denies the right to vote (to males of 21 years of age or older) for any reason except rebellion or crime, that state will receive a reduction in its representation in the House of Representatives proportional to its denial of the right. Though the theory behind the threat, and its implications for the rest of the amendment, have been discussed in cases like Reynolds v. Sims (1964) (see Justice Harlan’s dissent, in particular), and Richardson v. Ramirez (1974), it has never been practically applied. Reynolds v. Sims (1964)

Richardson v. Ramirez (1974)

Rebels as Government Officials

Rebels as Government Officials Important Cases
Another section dealing directly with the aftermath of the Civil War, section 3 of the 14th Amendment prohibits those who had “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof” from serving in the government. It was designed to keep the federal and state governments free of those who had broken the country apart. However, its effect wound up being relatively minor, as Congress did eventually take advantage of the allowance in the amendment that gives Congress the authority, “by a vote of two-thirds of each House, [to] remove such disability.” 

The National Debt

The National Debt Important Cases
The fourth section of the 14th Amendment contains two general elements, both surrounding debt. First, it guarantees that whatever debt the United States government accrues, “shall not be questioned.” Second, it invalidates any debt incurred by any rebellion against the United States (practically, this told those that may have financed the Confederacy’s fight in the Civil War that their debts will never be repaid).

In actuality, neither of these provisions have been used to directly question government actions in Supreme Court cases; however, the first element – that the U.S. debt is valid – has recently been paid some attention by the media and constitutional scholars. The national debt is high; both political parties agree on this stipulated fact. However, a good deal of controversy has surrounded what is called the “debt ceiling,” a Congressional action that sets the outside legal amount that the federal government may borrow. Though the debt ceiling has been consistently raised as the debt has grown, it is increasingly used as a bargaining chip in political debates.

The question that is being raised, then, is whether the debt ceiling is even constitutional in the first place. The reason the debt ceiling is important is because if the government were to reach the ceiling, without it being raised by Congress, it could no longer afford to pay its debts and obligations in the form of interest on the loans, pensions for government workers, and everyday functions of the government. But according to the 14th Amendment, the debt “shall not be questioned.” Does this mean that any statutory debt ceiling is beyond Congress’ authority? Possibly. But whether Congress has such authority remains a theoretical question only.
 

Enforcement of the Constitution

Enforcement of the Constitution (Congruence and Proportionality) Important Cases
The section of the 14th Amendment, similar to sections in several other amendments, is known as an “enforcement provision.” It has no substantive law unto itself. Rather, it provides the authority for Congress to make laws to uphold the other provisions of the amendment. The text of the section is as follows: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”


But while this statement may sound clear, it has required some judicial fine-tuning. In the first century after the passage of the 14th Amendment, the Supreme Court occasionally struck down Congressional actions for being outside the scope of what is covered by the other provisions. However, it was a recent case, City of Boerne v. Flores (1997), which today governs the test for whether Congress has acted within its authority to enforce the 14th Amendment.


In Boerne, the Court examined the passage of the Religious Freedom Restoration Act, a Congressional statute that was actually crafted in response to another Supreme Court case (Employment Division v. Smith (1990)), where the Court refused to invalidate a law prohibiting peyote use, even though its use was religious in nature for certain Native American rituals.


The RFRA tightened the judicial standard for examining alleged infringements on religious freedom. But the Court held this statute to be unconstitutional. By way of reminder, even though religious freedom issues are contained in the 1st Amendment, these amendments are only technically applicable to infringements by the federal government. They are made applicable to state and local governments through Incorporation into the first section of the 14th Amendment. Meaning, the section 5 enforcement provision applies to the 1st Amendment as well.


The RFRA was unconstitutional, according to the Court in Boerne, because Congress was not enforcing a constitutional protection, Congress was defining a constitutional protection: “Congress does not enforce a constitutional right by changing what the right is.”


The Court, then, came up with a test known as “Congruence and Proportionality.” According to this test, used in subsequent cases as well, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” This means that, while Congress cannot define rights, it may identify injuries that are being inflicted in line with what is supposed to be prohibited by the 14th Amendment. Provided Congress’ response is proportional to the injury being caused, the act will be upheld.


However, as a footnote, while the Congruence and Proportionality Test has been accepted as law, not all the Justices on the Supreme Court are pleased with the vagaries of its meaning. According to Justice Scalia, “The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decision-making.”

 Employment Division v. Smith (1990)

City of Boerne v. Flores (1997)

The Fifteenth Amendment

The Fifteenth Amendment Important Cases
This was the last of the Reconstruction Amendments, those amendments passed in the wake of the Civil War. Unlike the 14th Amendment, and more like the 13th Amendment, this amendment has not been the subject of much controversy or litigation. The text of the amendment is simple: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” As with several other amendments, an additional section is added, stating, “The Congress shall have power to enforce this article by appropriate legislation.”


However, as straightforward as this amendment might seem – the promise to prevent the exclusion of minorities (especially African Americans) from the voting booth – its effects were not nearly as sweeping. For many decades post-ratification of the 15th Amendment, African Americans were still largely excluded, especially in the southern states, through tactics such as poll taxes and literacy tests. It was only through the eventual passage of the 24th Amendment and the passage of the Voting Rights Act of 1965 that such practices were completely outlawed.

 

The Constitutionality of the Income Tax

The Constitutionality of the Income Tax Important Cases
Congress has always had the ability to levy taxes on the American people. However, according to the original Constitution, if Congress wanted to tax people directly, it could only do so in proportion to each state’s population. This meant that the larger states had to pay a greater share of the federal taxes no matter what. For example, if the State of Richia had only 1,000 millionaire residents and the State of Poorland had only 1,000,000 homeless residents, if Congress wanted to issue a direct tax, Poorland would have to pay more than Richia because Poorland had a greater population.


To help finance the Civil War, however, Congress issued what is known as an “Income Tax.” Income taxes directly tax people based on their own individual incomes irrespective of how populated their home state happens to be. Congress issued another income tax after the Civil War as well. But obviously, such a scheme was unconstitutional. In Pollock v. Farmer’s Loan & Trust Company (1895) the Supreme Court held that an income tax of this type was not within Congress’ power. It was a direct tax. As such, it had to be apportioned based on state populations.


Hence, in 1913, the 16th Amendment was ratified. The amendment states that “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” This amendment directly overruled the decision in Pollock and completely eliminated the requirement that taxes be levied on individuals in proportion with the populations of their states.

 Pollock v. Farmer’s Loan & Trust Company (1895)

The Direct Election of U.S. Senators

The Direct Election of U.S. Senators Important Cases
When the Constitution was first ratified, the Senate and House of Representatives were elected in two very different ways. Members of the House, as we are familiar with today, were directly elected by the people. But members of the Senate, as established by Article I, Section 3, were elected by state legislatures.


This original system was a way to ensure that state governments would remain relevant within the new national government. There were also strong feelings among many of the founders that popular elections, like those that put members of the House into place, were tumultuous and filled with passions of the masses. These men felt that this should be tempered by the coolheadedness of Senators appointed by the esteemed state legislators.


However, by the end of the 19th century and the beginning of the 20th, a movement had emerged to increase the accountability of Senators to the people directly. Thus, the 17th Amendment was drafted and ratified.


The text of the amendment says as follows:


“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”


“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”


“This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”


The first clause undoes the original structure of the Senate. The two Senators are now to be elected by the people. The second clause describes the process to be followed in the event that a seat in the Senate is emptied before a term is complete. The “executive authority” of that particular state (meaning, the Governor) can be given the power by the state legislature to both call fort early elections or make a temporary appointment until the next election is held. The third clause ensured that any Senator elected before the changes took place was still a proper Senator.

 

Prohibition of Alcohol in the United States

Prohibition of Alcohol in the United States Important Cases
In the early 20th century, a movement was growing that advocated using constitutional means to correct perceived social ills. In 1919, the “Dries” had their way; and the manufacture, sale, and transportation of alcohol was constitutionally prohibited in the United States via the 18th Amendment.


The amendment stated as follows:


“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”


“The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”


“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”


The text of the amendment is fairly straightforward. The first section enacted prohibition. The second section gave both states and Congress the power to enforce it. The third section governed the ratification itself, requiring state legislatures to ratify the amendment within seven years.


In the years during which 18th Amendment was in effect, there were no significant constitutional challenges to the prohibition of alcohol itself. But there were some challenges to the procedure used to ratify the amendment. For example, in Hawke v. Smith (1920), those arguing in favor of prohibition asserted that an Ohio referendum was invalid. In Ohio, the state legislature had approved the 18th Amendment. But a subsequent direct referendum of the voters rejected it. In the Ohio constitution, the people were given the power to review their legislature’s passage of any amendment to the national Constitutional. The prohibitionists argued – and the Supreme Court agreed – that the process by which amendments are to be ratified only involves state legislatures, not referendums. The Constitution itself made no mention of a review by the people. Thus, Ohio’s referendum was immaterial. The legislature had ratified the amendment and that was all that mattered.


Challenges aside, the 18th Amendment passed, ratified by the vast majority of states. Subsequently, Congress passed the National Prohibition Act, more commonly known as the Volstead Act. This piece of legislation, pursuant to the second section of the amendment, put in place the laws governing prohibition: definitions of terms, punishments for violations, and exceptions for research, medicine, and religion.


But prohibition, far from ridding the country of alcohol consumption, emboldened those in the black market. The laws were inconsistently enforced. Because possession of alcohol was not prohibited, the laws effectively favored those with sufficient means to stockpile supplies in the days before the laws took effect. Meaning, the wealthy were relatively unaffected by prohibition. The poor resented prohibition. The criminals reveled in prohibition.


However, the era of the 18th Amendment did not last long. In 1933, the 21st Amendment undid prohibition.

 Hawke v. Smith (1920)

Dillon v. Gloss (1921)

Granting Women the Right to Vote

Granting Women the Right to Vote Important Cases
In 1872, a woman named Virginia Minor tried to register to vote in her home state of Missouri. Under Missouri’s laws, however, she was turned away. Women did not have the ability to vote. Ms. Minor, part of the women’s suffrage (voting rights) movement in Missouri, sued the state. She made the argument that the rights guaranteed by the 14th Amendment also prohibited states from denying the right to vote, including denying it to women. The Supreme Court of Missouri rejected this argument, however. In Minor v. Happersett (1875), so did the United States Supreme Court. The Court held that denying the right to vote a valid citizen was not an infringement of any constitutional right. If, on a national level, women wanted to be guaranteed the right to vote, it would have to be afforded through a change in the Constitution.


Indeed, the women’s suffrage movement, led by activists like Susan B. Anthony, had long seen a constitutional amendment as a primary avenue to achieve their goal. Though, before the amendment was eventually ratified in 1919, several states had individually given women the right to vote (the first woman elected to the U.S. House of Representatives was elected in 1916), it was not until this amendment became part of the Constitution that women across the country were guaranteed that right.


The 19th Amendment states as follows:


“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”


“Congress shall have power to enforce this article by appropriate legislation.”


Even after the passage of the amendment, however, it was still challenged. In Leser v. Garnett (1922), some Maryland men sued the state to prevent women from voting. The plaintiffs made several arguments, including that the amendment unconstitutionally infringed on the rights of states themselves, contradicting state constitutions and forcing the dilution of state voter rolls. However, the Supreme Court unanimously rejected these arguments, ensuring that the 19th Amendment and a woman’s right to vote would never again be constitutionally questioned.

 Minor v. Happersett (1875)

Leser v. Garnett (1922)

Mitigating the Influence of the Lame Ducks

Mitigating the Influence of the Lame Ducks Important Cases
The 20th Amendment sought, by constitutional change, to fix a few different problems that had become evident about the structure of the national government. The text of the amendment itself, split into six sections, is fairly straightforward and reads as follows:


“The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”


“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”


“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”


“The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.”


“Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.”


“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”


Sections 1 and 2 changed the start date of terms of Presidents, Vice-Presidents, and members of Congress from March, when it was previously set, to January 3rd. Before this change, the so-called “lame duck” session was too long to be productive. Federal elections are held in November – which meant that the old Congress and administration had many months in office before the new elected officials would take their places. Increasingly, the period of time from November through March became impossible to get anything done. The outgoing officials had little effective power, though they were still technically in office. They were “lame ducks,” as the political saying goes. Even though there is still a lame duck period today, it is much shorter than before the ratification of 20th Amendment.


Section 2 also changed a requirement set forth in Article I, Section 4. There, Congress was required to meet every year in December. However, in election years (which, for the House of Representatives is every two years), this mandatory session is a lame duck session. Section 2 of the 20th Amendment, therefore, moved the mandatory session from December to January 3rd, when the new Congress is already in place.


Section 3 (and, more technically, Section 4) also dealt with remedying another concern with the lame duck Congress. Before the 20th Amendment was put into place, in a presidential election year, if no President-elect emerged, the House of Representatives would help choose the President. This, though, could result in a lame duck Congress having a say over the next four years of the country’s political life even though that Congress has already been voted out. To mitigate this , Section 3 specifically deals with when something happens to the President-elect: if he dies or is ill, for example. Now, Section 3 stipulates that the Vice-President-elect would automatically become President. If there is neither person, then Congress is given the power to enact legislation to govern the automatic succession in such a case (which it did in 1947)


Section 5 and Section 6 merely deal with the process of ratification of the amendment itself.

 

Introduction: The Repeal of Prohibition

As an experiment, the 18th Amendment had failed and it was time for it go. Thus, with the ratification of the 21st Amendment in 1933, the Prohibition Era – that period of U.S. history when the alcohol industry was made illegal nationwide and unconstitutional – was over.The 21st Amendment stated as follows:

“The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”

“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

The first section of the amendment explicitly repealed the 18th. The second section acknowledged the continued legality of any state laws that still prohibited or regulated alcohol. The third section set a timeline for ratification.

Early Supreme Court Decisions: Broad State Power Important Cases
In the decades since the passage of the 21st Amendment, the second section – permitting state regulation of the alcohol industry – has been the subject of regular controversy and litigation. The essential question is as follows: If section 2 of the 21st Amendment explicitly grants states the power to regulate the alcohol industry, does it grant states any more power than they would have had without the provision? Meaning, in general, states have the power to legislate in any area. They have so-called plenary police powers. It is only the federal government that needs explicit permission to do something. Ordinarily, states make laws under this framework, not through some special federal constitutional grant. Thus, here, does this provision of the 21st Amendment go beyond a state’s ordinary plenary police powers? If there is some other check on a states power (like the Commerce Clause or the Supremacy Clause), does it still apply in this particular arena?The general answer for whether states have broader authority to regulate the alcohol industry than other domains has changed over the years. At first, states were given incredibly broad authority. For example, in State Board of Equalization v. Young’s Market Company (1936), the Court addressed whether a state could enact a law placing a tax on alcohol brought into the states. The Commerce Clause and the Dormant Commerce Clause prohibit states from being protectionist. They cannot act like mini-countries and interfere with the flow of interstate commerce. But in Young’s Market, the Court held that section 2 of the 21st Amendment created an exception to this rule. States could do this in the realm of alcohol. Section 2 had given them special authority that overrode the other earlier provisions that limited a state’s power.


Moreover, in Mahoney v. Joseph Triner Corp. (1938), the Court held that even the Equal Protection Clause did not apply to the alcohol industry, because of the 21st Amendment. In Indianapolis Brewing Co. v. Liquor Control Commission (1939), the Court reaffirmed its position that states had extraordinary power to legislate under section 2 of this amendment.

 State Board of Equalization v. Young’s Market Company (1936)

Mahoney v. Joseph Triner Corp. (1938)

Indianapolis Brewing Co. v. Liquor Control Commission (1939)
Modern Supreme Court Decisions: Limited State Power Important Cases
Despite the broad authority given to states by the Supreme Court in the years immediately following the ratification of the 21st Amendment, in the modern era, this has changed dramatically.In United States v. Frankfort Distilleries, Inc. (1945), the Court held that the federal Sherman Antitrust Act did still apply to a state’s actions in the alcohol realm – even though the Sherman Act was passed pursuant to Congress power under the Commerce Clause. In Hostetter v. Idlewild Bon Voyage Liquor Corp. (1964), the Court again held that the Commerce Clause prevented states from taking certain action with regard to alcohol – this time prohibiting certain sales in an airport. In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held that section 2 did not override any 1st Amendment protections. There, a state’s attempt to ban certain alcohol-related advertising was an unconstitutional violation of the freedom of speech, which was not overridden by the 21st Amendment.


Recently, in Granholm v. Heald (2005), the Court explicitly rejected the notion that the 21st Amendment granted states any more power than they had before the 18th Amendment was passed. Here, unlike in the early cases mentioned above, the Court held that the 21st Amendment did not allow states to override other limiting constitutional provisions like the Dormant Commerce Clause. State legislation in the realm of alcohol, according to the majority, was not the incredible exception that the earlier cases had made it out to be.

 United States v. Frankfort Distilleries, Inc. (1945)

Hostetter v. Idlewild Bon Voyage Liquor Corp. (1964)

44 Liquormart, Inc. v. Rhode Island (1996)

Granholm v. Heald (2005)

The Two-Term Limit for Presidents of the United States

The Two-Term Limit for Presidents of the United States Important Cases
It is not historically clear whether George Washington did not seek a third term because he was tired or because he was seeking to establish a precedent – but whatever the underlying reason, two terms became the norm for Presidents of the Untied States. It was followed by the third President, Thomas Jefferson (the second President, John Adams lost reelection for his second term), and – though a few Presidents did unsuccessfully attempt to seek a third term – no President ever served more than two until President Franklin D. Roosevelt was inaugurated for a third time in 1940 and then again for a fourth time in 1944.

That Mr. Roosevelt was able to achieve such a feat might be testament to his own personal popularity. But the idea of a President serving for a decade or more – possibly for his life – was distasteful and disconcerting to the dictator-fearful American electorate. Hence, within a few short years of President Roosevelt’s death, the 22nd Amendment was ratified. It’s text reads as follows:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.”

“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”

No President since has served more than two terms. The restriction is no longer custom. It is law.
 

Washington, D.C. and Presidential Elections

Washington, D.C. and Presidential Elections Important Cases
Since its founding, the residents of Washington, D.C. have sought voting rights similar to those afforded in other parts of the country. For example, according to Article I, Section 8, it is Congress – not a local government – that has direct control over Washington, D.C. Today, Washington’s local government serves only at the pleasure of Congress and only has whatever power directly given to it by Congress. In addition to that limitation on so-called “home rule,” the original Constitution only gave national election rights to citizens of a “state.” Meaning, residents of Washington, D.C., being a part of something other than a state, do not have representation in Congress in the form of Senators or members of the House of Representatives.


While the above issues are still being debated, in 1960, the 23rd Amendment gave residents of Washington, D.C. the ability to at least vote in presidential elections. The text of the amendment is as follows:


“The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:”


“A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”


“The Congress shall have power to enforce this article by appropriate legislation.”


In other words, Washington, D.C. is granted by this amendment the ability to have electors (those officials that represent states in the presidential elections) equal to how many electors it would have if Washington were a state. But, it is also not allowed to have more electors than those in the least populous state (which, today, is Wyoming, which has 3 electors).


Thus, today, the residents of Washington, D.C. are represented in the presidential election by 3 electors.

 

The Elimination of the Poll Tax

The Elimination of the Poll Tax Important Cases
In the aftermath of the Civil War, three constitutional amendments were passed, the 13th Amendment, the 14th Amendment and the 15th Amendment. They were meant to remedy many of the injustices that had been wrought upon African Americans in the pre-war country. But these amendments, while significantly advancing the cause of civil rights, did not remedy every problem.One tool several southern states used to discriminate against their African American residents was the “poll tax.” Laws that put poll taxes into place required voters to pay fees in order to vote. As the black communities after the Civil War, especially in the southern states, were poorer than their white counterparts, these laws had the effect of disproportionately excluding African Americans from the voter rolls without violating any of the more express provisions of other constitutional amendments, like the 15th Amendment‘s prohibition against discriminating against a voter on the basis of race.


Moreover, the Supreme Court held that these poll taxes were perfectly constitutional. For example, in Breedlove v. Suttles (1937), the Court considered whether poll taxes violated the Equal Protection Clause of the first section of the 14th Amendment. The Court found that a Georgia poll tax did not discriminate on the basis of race because, technically, it applied to both black and white citizens alike. Thus, it would take a constitutional change to render a poll tax unconstitutional.


That change came in the form of the 24th Amendment, ratified in 1964, which states as follows:


“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”


“The Congress shall have power to enforce this article by appropriate legislation.”


The amendment is clear: poll taxes for federal elections are unconstitutional.


However, in the wake of the amendment, and during the impassioned civil rights era of the 1960s, the Supreme Court went further. As mentioned, the amendment only prohibited poll taxes for federal elections: for Presidents or Senators and the like. But state elections could still require poll taxes. Until the Supreme Court’s ruling in Harper v. Virginia State Board of Elections (1966), which expressly rejected its decision in Breedlove. In Harper, the Court held poll taxes to be unconstitutional under the Equal Protection Clause of the first section of the 14th Amendment as well. The Court was emphatic: “Voter qualifications have no relation to wealth.”

 Breedlove v. Suttles (1937)

Harman v. Forssenius (1965)

Harper v. Virginia State Board of Elections (1966)

Succession to the Office of the President and Vice-President

Succession to the Office of the President and Vice-President Important Cases
The 25th Amendment, ratified in 1967, deals with situations where either the President or Vice-President could no longer fulfill the duties of the office. The text of the amendment is as follows:


Section 1: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”


Section 2: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”


Section 3: “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”


Section 4: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”


“Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”


Section 1 of the amendment is straightforward: if the President is removed from office, dies, or resigns, the Vice-President automatically becomes the President. Before this amendment, it was unclear exactly what should happen in this situation. Article II, Section 1 of the Constitution stated that “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President.” However, the question remained whether this meant that the Vice-President should assume the office of the President, or whether the Vice-President should just assume the responsibilities of the President. While a practice had developed that the Vice-President would assume the office, that practice was not made official until the ratification of the 25th Amendment.


Section 2 of the amendment allows the President to directly appoint a new Vice-President if there is a vacancy in that office. The new Vice-President, then, must be confirmed by a majority of both the Senate and House of Representatives.


Gerald Ford remains the prime example of the execution of Sections 1 and 2 of this amendment. In 1973, President Richard Nixon’s Vice-President Spiro Agnew resigned under criminal allegations. President Nixon then appointed Gerald Ford, who was then House Minority Leader, as Mr. Agnew’s replacement, pursuant Section 2 of the 25th Amendment. The Senate and House then confirmed Mr. Ford, who assumed the office of Vice-President. In 1974, Mr. Nixon himself resigned amidst the Watergate scandal and Mr. Ford automatically assumed the office of the President, pursuant to Section 1 of the 25th Amendment. Gerald Ford remains the only individual to hold the offices of President and Vice-President without ever having been elected.


Section 3 of the amendment allows the President to notify Congress that he is unable to fulfill his duties. The Vice-President then becomes Acting President until the President notifies Congress that he is able to reassume the office. This section has been invoked several times in a procedural manner – when the President is undergoing some time of routine surgery that requires anesthesia and thus does not permit him to make decisions if needed. For example, in 1985, President Reagan underwent a colonoscopy and Vice-President George H. W. Bush assumed the office of Acting President until Reagan was well enough to reassume the Presidency shortly thereafter.


Section 4 of the amendment is, perhaps, the most drastic. Aside from depictions in television and the movies, it has never been invoked. It allows the Vice-President and a majority of the Cabinet to notify Congress that they believe the President unable to fulfill his duties. In that situation, the Vice-President becomes Acting President. If the President resists, and sends his own notification to Congress attesting to his ability to continue in the office, Congress then decides the issue. Then, the President can only be sidelined by a 2/3 majority vote in both the Senate and the House of Representatives.

 

The Right to Vote for Citizens Eighteen Years of Age and Older

The Right to Vote for Citizens Eighteen Years of Age and Older Important Cases
During the Vietnam War, many societal issues came to the forefront of national politics. Among them was the seemingly contradictory notion that individuals 18 years of age and older could be drafted and sent to fight a war, but were not necessarily guaranteed the right to vote.


In response to this apparent injustice, Congress passed legislation which added to the Voting Rights Act (which had originally been put into place to remedy racial inequalities and voting). This new law guaranteed the right to vote for 18 year old citizens in all federal and state elections. This law, however, contradicted other laws in some states. While the federal government could set its own minimum voting age, these states argued that it could not force states to set such requirements for state elections. In Oregon v. Mitchell 1970, the Supreme Court agreed. It held that Oregon did not have to adhere to the new law for state elections (but it would have had to go along with the requirement for federal elections that took place in Oregon, which is logistically difficult).


The holding of Mitchell was not long the law, however. Within the year, the 26th Amendment was ratified. The text of the amendment states as follows:


Section 1: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”


Section 2: “The Congress shall have the power to enforce this article by appropriate legislation.”

 Oregon v. Mitchell (1970)

Amendment I

Text of Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 'Travis Translation' of Constitution:

Congress cannot make any law to: create a government church, keep people from practicing any religion they please (or not), keep people from writing or saying what is on their minds, keep people from getting together peacefully, or keep people from asking the government to hear their complaints.

Summary:
The First Amendment contains a bundle of unique yet closely related rights. Generally, these rights provide for the freedom of citizens’ to hold and express beliefs without interference or retaliation by the government. This includes the freedom to practice religion, the freedom of speech, and the freedom to associate with others. Although its wording specifically prohibits action taken by Congress, the various clauses of the First Amendment have been incorporated through the Due Process Clause of the 14th amendment to apply to the states. The protections found within the First Amendment stemmed in part from the founding fathers’ reactions towards life under the British rule. In England, speech was tightly controlled – a license granted by the government was required to publish and “seditious libel” laws were used to punish anyone who spoke against the government. Libel law was used against colonists critical of British governance. Additionally, in contrast to the diverse groups that came to the colonies in order to practice religion freely, England had an organized church established by the government.The First Amendment begins with the Establishment Clause, which prevents the government from establishing a religion or favoring any particular faith. This is often referred to as the “separation of church and state”, based on the view advanced by Thomas Jefferson. The following clause, the Free Exercise clause, forbids the government from interfering with or discriminating against citizens for their religious beliefs. This clause is closely linked to the Establishment Clause and the two often both come into play in cases involving religion, working either together or opposite of each other depending on the circumstances. The third clause is the Free Speech clause. This prohibits the government from passing laws that restrict citizens expressing (or choosing not to express) protected speech. Speech can take on a huge variety of forms or be shared through different mediums, but it is essentially the sharing or expressing of an idea. Not all speech is equally protected – while some speech is fundamentally protected, significant exceptions have been carved out for certain speech that is given less protection or none at all. Closely intertwined with the freedom of speech is the freedom of the press. The Free Press clause protects the right to publish and exchange ideas without interference from the government. Many of the rationales and issues involved in the freedom of speech overlap with the freedom of the press. Issues that affect publishing – such as licensing laws for broadcast, or prior restraints on what a newspaper can print, are of particular relevance to this clause. It should be noted however that despite its name, the freedom of the press applies to everyone rather than just professional news media. The next section is known as the Assembly Clause. The Assembly Clause provides for the right of citizens to gather to express ideas and communicate. This clause also encompasses the freedom of association – a first amendment right of individuals to work and organize in groups to advance beliefs and ideas. This right is important because it acts as a means to accomplish the goals of the other First Amendment clauses by providing strength in numbers to ideas and messages. The final section of the First Amendment is the Petition Clause. This clause provides for the right of citizens to contact the government with any complaints, demands, or grievances. Contact can include lobbying the lawmakers and leaders, as well as the ability to bring lawsuits in court.

Section 1

Text of Constitution:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 'Travis Translation' of Constitution:

Anyone born in the United States, or given citizenship by the United States, is a citizen of the United States and citizens of the state where they live. States cannot make or enforce any laws that limit the rewards or protections of any citizen of the United States. No State can take away any citizen’s life, freedom, or belong­ings without proper use of the law. Every person is given the same protec­tion under the law.

Summary:
In the wake of the Civil War, several amendments to the Constitution were added to remedy some of the societal problems that had led to that war. The cornerstone of these Reconstruction Amendments, as they were called, is arguably this section of the 14th Amendment. It is certainly the most dense. Within a few lines of text, rights and guarantees grow outward like leaves and branches on a tree. It is the giant sequoia of Constitutional Law.By way of introduction, it should be noted that the 14th Amendment as a whole does not apply to private actors. For there to be a violation of the Constitution under any of its provisions, there must be some government actor. For an explanation of the sometimes blurry lines between government and private actors, see Government and Private Action.Turning to this section, it begins by guaranteeing birthright citizenship for all, finally overturning the blight that was the Supreme Court’s decision in Dred Scott v. Sanford (1857), where the Court denied that most basic of promises to African Americans. It continues by requiring states not to interfere with the “privileges or immunities of citizens of the United States.” This clause, while sounding grand in scope, has been interpreted quite narrowly to only provide those few rights held by the Court to be inherent to citizenship of the country as a whole, such as access to ports, protection on the high seas, the ability to run for federal office, and the right to travel. While occasionally, and even recently, this clause is referenced or somewhat revived, it remains relatively hollow. Next, the amendment requires states not to “deprive any person of life, liberty, or property, without due process of law.” This Due Process Clause, as it’s known, is a wellspring of rights. First, and most obviously, it is the source of Procedural Due Process rights. In other words, if a person’s life, liberty, or property is threatened by the government, including by the courts, that person is entitled to some measure of procedural process, including the right to be adequately notified of the charge and the right to have an adequate opportunity to be heard. Second, the Court has interpreted this clause as the source of what’s known as Substantive Due Process. Meaning, though not explicitly mentioned elsewhere in the Constitution, there are some rights so fundamental to our way of life and system of government that they are implied: implied by the Due Process Clause. As an example, the Due Process Clause has been held by the Court to imply a fundamental right to privacy, a corollary of which is a woman’s right to choose as held by the Court in Roe v. Wade (1973). Third, under the rubric of implied fundamental rights, the Court has also used the Due Process Clause, explicitly applicable to the states, to apply many of the rights guaranteed by the Bill of Rights, explicitly applicable only to the federal government, to the states as well. For example, protection of free speech afforded under the First Amendment is applied to the states through the Due Process Clause of the Fourteenth Amendment. Finally, this section ends by requiring states not to “deny to any person within its jurisdiction equal protection of the laws.” This Equal Protection Clause, as it’s known, protects different people from being treated differently by the government. As mentioned, like with the other provisions, it does not apply to private individuals. Your neighbor can be a bigot or a racist. But your government cannot be. As simple as this may sound, however, the Equal Protection Clause is less a bright line rule, and more a tool with which to analyze a spectrum. The Court has understood there to sometimes be a need for the government to treat groups differently. Statutes prohibiting a seven year-old child from running for town counsel or buying beer may be government classifications, but that does not mean the government is guilty of ageism. The Court, therefore, analyzes Equal Protection challenges using a complex system of varying levels of scrutiny, examining both the purpose for a particular government classification as well as the propriety of the action taken to carry out that purpose. Can a public school use race to shape its student body? Can a state-run college limit admission to men? Is the death penalty unconstitutional if it’s disproportionately given to murderers of white victims? Can law enforcement racially profile? These are but a few of the issues the Court has dealt with under the umbrella of the Equal Protection Clause.

Amendment II

Text of Constitution:

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.

The 'Travis Translation' of Constitution:

Since we need a National Guard to secure the country, citizens have the right to own firearms (guns).

Section 2

Text of Constitution:

SECTION 2:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The 'Travis Translation' of Constitution:

SECTION 2:
Representatives will be figured among the States according to their numbers, counting all the people in the State, except Native Americans who are not taxed. If a State will not let any male citizen over 21 years old vote freely (unless he commits a crime, or takes part in a rebellion), the num­ber of Representatives for that states will be reduced.

Amendment III

Section 3

Text of Constitution:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The 'Travis Translation' of Constitution:

No one can be a Senator, Representative, Elector or officer of the United States — or United States military officer, or member of a State Legislature, or a Governor, or a judge of any State — if they took an oath to support the Constitution and then took part in a rebellion against the United States, or gave aid and comfort to the enemies of the United States. But Congress can change this with a two ­thirds vote.

Amendment IV

Text of Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 'Travis Translation' of Constitution:

The personal property of people is safe from government intrusion. People, and their houses, papers and other things they own, are protected from the police taking their property or looking at their property without a warrant. If there is a need to search or take property, a Judge must issue a warrant for a very good reason, supported by an oath, and the warrant must describe what is being looked at and what is being taken.

Section 4

Text of Constitution:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The 'Travis Translation' of Constitution:

Any money the United States owes for paying pensions, or pays for help in stopping a revolt, shall not be questioned. Neither the United States nor any State can pay any money for help in rebelling against the United States, and no State or the United States will pay for a lost or freed slave — in fact all such bills, obli­gations, and claims are not legal.

Amendment V

Text of Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 'Travis Translation' of Constitution:

No one can be made to defend themselves against a crime the government says he/she committed under federal law unless a group of people (grand jury) agrees that the charge is real, and then that person is officially accused. Cases involving the armed forces or the National Guard are exceptions during wartime. No one can be held responsible for the same, crime more than once. No one can be made to testify against himself or herself, and the government cannot take away anyone’s life, freedom, or property without applying the law. Private property cannot be taken for public use without a fair payment.

Section 5

Text of Constitution:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The 'Travis Translation' of Constitution:

Congress has the power to enforce this amendment by law.

Amendment VI

Text of Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The 'Travis Translation' of Constitution:

In criminal trials, anyone blamed for a crime will enjoy the right to a quick, public trial; decided by an open-minded jury; in the general place (district) where the crime was committed – these places will be determined by law. Anyone blamed for crimes must be told what crime they are accused of and why they are sbeing blamed. The person blamed for a crime has the right to face the witnesses against him or her, to have a way to bring forward witnesses on his or her side in court, and to have a lawyer for his or her defense.

Amendment VII

Text of Constitution:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The 'Travis Translation' of Constitution:

In federal cases where somebody sues someone for more than $20, and when the case comes from old laws before the Constitution, the people get to have a trial by jury. No fact examined by a jury can be re-examined in any federal court, except according to the current rules.

Amendment VIII

Text of Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The 'Travis Translation' of Constitution:

Anyone accused of a federal crime will not be required to pay bail that is out of proportion to the crime. Fines (money) charged to punish criminals must be reasonable, and any other punishment must not be cruel or unusual.

Amendment IX

Amendment X

Amendment XI

Amendment XII

Amendment XIII

Text of Constitution:

SECTION 1:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2:
Congress shall have power to enforce this article by appropriate legislation.

The 'Travis Translation' of Constitution:

SECTION 1:
Slavery no longer exists in the United States or any place the United States controls. No one is forced to work for anyone else for no pay, except as punishment for a crime in which the criminal has been convicted by a court of law.

SECTION 2:
Congress has the power to enforce this amendment with laws.

Amendment XIV

Amendment XV

Text of Constitution:

SECTION 1:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SECTION 2:
The Congress shall have the power to enforce this article by appropriate legislation.

The 'Travis Translation' of Constitution:

SECTION 1:
The United States or any State cannot deny anyone the right to vote based on their race, the color of their skin, or the fact that they were once slaves.

SECTION 2:
Congress has the power to enforce this amendment by law.

Amendment XVI

Amendment XVII

Amendment XVIII

Text of Constitution:

SECTION 1:
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

SECTION 2:
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

SECTION 3:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The 'Travis Translation' of Constitution:

SECTION 1:
One year after this amendment is official, nobody can make, sell, or move beer, wine, or liquor anywhere in the United States or anywhere under the control of the United States.

SECTION 2:
Congress and the States have the power to enforce this amendment by law.

SECTION 3:
This amendment will not work unless it is added to the Constitution by the State Legislatures, like the Constitution says, in seven years from the day it is given to the States by Congress.

Amendment XIX

Amendment XX

Text of Constitution:

SECTION 1:
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

SECTION 2:
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

SECTION 3:
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

SECTION 4:
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

SECTION 5:
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

SECTION 6:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The 'Travis Translation' of Constitution:

SECTION 1:
Terms of the President and the Vice-President end at noon on January 20th. Terms of Senators and Representatives will begin and end at noon on January 3rd. Terms of the new President and Vice President will begin at noon on January 20. Terms of new Senators and Representatives will begin at noon on January 3rd.

SECTION 2:
Congress must meet at least once every year, starting on January 3rd, unless they pass a law to pick another day.

SECTION 3:
If the President-elect dies after the election and before noon on January 20, the Vice President-Elect will become President. If, for some reason, a President is not chosen before January 20, or if the President-Elect does not meet the rules laid out in the Constitution, then the Vice President-Elect will act as President until someone is chosen as President. If neither the President-Elect nor the Vice President-Elect meets the rules laid out in the Constitution, the Congress can decide, by law, who will act as President, how a President should then be picked, and that person will act as President until the Constitutional rules can be followed.

SECTION 4:
If the Representatives ever have to choose a President, or the Senators ever have to choose a Vice President, and that person dies before they enter office, the Congress can make a law to deal with that.

SECTION 5:
Sections 1 and 2 will take effect on October 15 after this amendment becomes part of the Constitution.

SECTION 6:
This amendment will not work unless it is added to the Constitution by the State Legislatures, like the Constitution says, seven years from the day after it is given to the States by Congress.

Amendment XXI

Text of Constitution:

SECTION 1:
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

SECTION 2:
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

SECTION 3:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The 'Travis Translation' of Constitution:

SECTION 1:
The eighteenth amendment is repealed.

SECTION 2:
States, territories, or other areas under the control of the United States can still pass laws making it illegal to make, sell, move, or drink beer, wine, or liquor.

SECTION 3:
This amendment will not work unless it is added to the Constitution by the State Legislatures, like the Constitution says, seven years from the day after it is given to the States by Congress.

Amendment XXII

Text of Constitution:

SECTION 1:
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

SECTION 2:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

The 'Travis Translation' of Constitution:

SECTION 1:
Nobody can be elected President more than twice. Nobody who has held the office of President, or acted as President, for more than two years of someone else’s term, can be elected more than once. This amend¬ment does not affect the President now, and it does not affect anyone who may act as President until this amendment is officially added to the Constitution.

SECTION 2:
This amendment will not work unless it is added to the Constitution by the State Legislatures, like the Constitution says, seven years from the day after it is given to the States by Congress.

Amendment XXIII

Text of Constitution:

SECTION 1:
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

SECTION 2:
The Congress shall have power to enforce this article by appropriate legislation.

The 'Travis Translation' of Constitution:

SECTION 1:
The place where the seat of government is located (Washington, D.C.) can pick Electors like this: The number of Electors will be figured as if the District of Columbia were a State, and the number would equal the number of Senators and Representatives of the smallest State. These Electors would be in addition to the Electors chosen by the States. For the election of the President and Vice President, the Electors will act like they are from a State. They will meet in the District of Columbia and follow the rules of the 12th amendment.

SECTION 2:
Congress has the power to enforce this amendment by law.

Amendment XXIV

Text of Constitution:

SECTION 1:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

SECTION 2:
The Congress shall have power to enforce this article by appropriate legislation.

The 'Travis Translation' of Constitution:

SECTION 1:
No state can make people pay a tax as a condition of voting in any election for President, Senator or Representative.

SECTION 2:
Congress has the power to enforce this amendment by law.

Amendment XXV

Text of Constitution:

SECTION 1:
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

SECTION 2:
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

SECTION 3:
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

SECTION 4:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 'Travis Translation' of Constitution:

SECTION 1:
If the President dies, leaves office, or gets kicked out of office (impeached). the Vice President becomes the President.

SECTION 2:
If there is not a Vice President, the President will pick one, and that person will be the Vice President after a majority of Senators and Representatives allow it.

SECTION 3:
If the President writes to the President of the Senate and the Speaker of the House of Representatives and tells them the President can no longer do the job, the Vice President will become the Acting President. The President who gave lip the office would have to write to the President of the Senate and the Speaker of the House again to let them know she or he can do the job again.

SECTION 4:
If the Vice President and a majority of the Cabinet officers writes to the President of the Senate and the Speaker of the House to tell them the President cannot do the job, the Vice President will immediately begin acting as President. After that, when the original President writes to the President of the Senate and the Speaker of the House to tell them she or he can now do the job, the President will again have the powers of office unless the Vice President and a majority of the Cabinet officers write the President of the Senate and the Speaker of the House within four days to tell them that is not the case. If all that happens, Congress will meet within 48 hours to decide the issue. Congress must act with¬in 21 days of receiving the letter. If Senators and Representatives decide by a two-thirds vote that the original President cannot do the job, the Vice President will continue to act as President. Otherwise, the President gets back the power of office.

Amendment XXVI

Text of Constitution:

SECTION 1:
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

SECTION 2:
The Congress shall have power to enforce this article by appropriate legislation.

The 'Travis Translation' of Constitution:

SECTION 1:
Citizens who are 18 years old may now vote. The United States or any State cannot deny anyone the right to vote based on age.

SECTION 2:
Congress has the power to enforce this amendment by law.

Amendment XXVII

Text of Constitution:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

The 'Travis Translation' of Constitution:

Congress cannot get a raise unless an election happens since they passed the law giving themselves a raise.

Summary:
The 27th Amendment to the U.S. Constitution is unique not only because it is the latest amendment to be ratified, but because it underwent the longest ratification process in American history. It was first proposed over 200 years before its eventual ratification, when renewed interest in it reinitialized a process that had become stalled when it was originally sent to the states all those years ago. Finally, in 1992, the amendment was ratified. This amendment is designed to minimize possible corruption in Congress. According to the Constitution, Congress is responsible for giving itself raises. Obviously this raises potential conflicts of interest. Thus, the 27th Amendment prevents any raise from going into effect until after the next election. In other words, if members of Congress vote to increase the salaries of members of Congress, the raise isn’t actually implemented until after the Congresspeople are up for reelection. This allows them to be accountable for potential misadministration of their compensation.