Supreme Court Cases

Supreme Court Cases

Chapter 13: Supreme Court Cases

Section 1: The First Amendment: Your Freedom of Expression

Section 2: The Fourth Amendment: Your Right to Be Secure
Section 3: Due Process and the Fourteenth Amendment
Section 4: Federalism and the Supreme Court

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Section 1 at a Glance
The First Amendment: Your Freedom of Expression
Students Right of Expression Do students who are not
being disruptive lose their constitutional right to freedom of
speech or expression when they enter the schoolhouse door?
Learn about the fundamental freedoms guaranteed by the First
Amendment to the Constitution.
The Plays the Thing Use your knowledge to prepare and
argue a case in federal district court alleging a violation of
freedom of speech. Your arguments must be guided by both
the First Amendment and Supreme Court decisions on this
subject.

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The First Amendment: Your Freedom of Expression
Reading Focus
Your freedom of expressionthe right to practice your
religious beliefs; to hold, express, and publish ideas and
opinions; to gather with others; and to ask the
government to correct its mistakesis the cornerstone of
our democracy. Through its power to interpret the
Constitution, the Supreme Court can expandor limit
your rights.

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Students Right of Expression

In the mid-1960s public opinion about the Vietnam War was divided. By 1963,
protests and demonstrations against the war began to spread, especially on
college campuses. Within a couple of years, some high school and middle
school students also began to protest the Vietnam War.

The Black Armband Case

1965: John Tinker and others protested Vietnam War by wearing black
armbands at public school
School board adopted policy banning wearing of armbands
Several violated policy, wore armbands, and were suspended
Parents sued school district claiming students First Amendment right to free
expression had been violated
U.S. district court ruled in favor of school; appeals court upheld
Case appealed directly to U.S. Supreme Court

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Students Right of Expression (contd.)

The Supreme Court Decision
Tinkers and others argued schools ban on armbands violated right to free
speech under First, Fourteenth Amendmentsarmbands symbolic speech
School district argued ban intended to prevent classroom disruption, not
suppress expression; argued reasonable use of power to preserve order
1969: Tinker v. Des Moines School District reversed lower courts ruling
Constitutional rights not shed at schoolhouse gate
Court agreed school authorities have right to maintain order, but protesters
did not interrupt activities or seek to intrude in school affairs
Court said schools can regulate student speech when speech would be
disruptive and interfere with rights of other students
Tinker test: if expression does not substantially interfere with school
operation, regulating that speech violates the Constitutions protection of free
expression

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Students Right of Expression (contd.)

After Tinker
Tinker case remains leading case dealing with free-expression rights of
public school students
1980s
Times and court membership changed
Court gradually modified and expanded concept of school disruption
Examples
1986: Bethel School District v. Fraser upheld suspension of student for
giving speech containing vulgar sexual references
1988: In Hazelwood School District v. Kuhlmeier justices upheld right of
school officials to censor school newspaper if school believes content
inconsistent with legitimate educational purpose
Supreme Court has limited student expression on and off campus in recent
years

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WHAT DO YOU THINK?

1. Are protests like Tinkers disruptive of school activities? Explain your
point of view.

2. Should school authorities have the right to censor student speeches

or newspapers? Why or why not?

3. Is the Tinker test an adequate way to handle issues related to

students freedom of expression? Why or why not?

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Freedom of Religion
The First Amendment guarantees your right to freedom of expression, the
right of citizens to hold, explore, exchange, express, and debate ideas.
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. These two guarantees are known as the
establishment clause and the free exercise clause.

The Establishment Clause

Jefferson called for wall of
separation between church, state
Supreme Court has tried to
maintain such a wall
Disagreement exists over how high
wall should be, or if it should exist

School Prayer
Some of the greatest controversy
Court has banned public enforced
school prayer, not private, voluntary
school prayer
Private religious groups allowed
Employees may not take part

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Freedom of Religion
Religion and Instruction
Teaching about religion and the Bible allowable
Instruction must be done in nonreligious manner
Cannot include teaching of religious beliefs

1968: Epperson v. Arkansas

Overturned law that prohibited teaching of evolution

1987: Edwards v. Aguillard

Voided Louisiana law requiring religious view known as creation science
to be taught alongside evolution

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Freedom of Religion (contd.)

The Free Exercise Clause
First Amendment seems to make freedom of religious belief an absolute right
Court has drawn distinction between right to believe and right to express
beliefs through actions
Difference noted in first case heard involving free exercise clause
1879: In Reynolds v. United States Court upheld conviction of George
Reynolds for practice of polygamy, having more than one wife
Reynolds belonged to Mormon Church, which allowed polygamy
Federal law prohibited practice of polygamy
Court ruled free exercise clause did not protect religious practices
subversive of good order, even if they reflected religious beliefs
Court developed principle into compelling interest test
Requires government to have compelling reason for banning religious
practice as necessary to protect society

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Compelling Interest Test

West Virginia State Board of
Education v. Barnette, 1943

Sherbert v. Verner, 1963

Court upheld students right to

refuse to salute flag, recite Pledge
if it violated their religious beliefs

Reversed South Carolinas denial

of unemployment benefits to
woman fired for refusing to work on
Saturdays, her day of worship

Making patriotic ceremonies

voluntary did no harm to society

Societys gain did not outweigh

persons freedom to follow beliefs

Goldman v. Weinberger, 1986

Upheld Air Forces ban on wearing
nonmilitary apparel
Jewish man could not wear
yarmulke while on duty
Based on military need to foster
unity and group spirit

Employment Division v. Smith, 1990

Upheld right to deny unemployment
benefits for two Native Americans
fired for ingesting peyote
States may enforce laws that
incidentally interfere with religious
practices

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Contrasting
How did the Courts position on
religious expression in Sherbert v. Verner
differ from its position in the Smith case?
Answer(s): In Sherbert v. Verner the Court
extended freedom of religious expression rights;
in the Smith case the Court limited religious
rights.

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Freedom of Speech
Congress shall make no lawabridging freedom of speech, or of the
press Is speech only spoken words, or does it include other forms of
expression? Are there limits to this freedom?
Protected and Unprotected
Speech
Speech that has little or no social
value is generally not protected
1942: Chaplinsky v. New
Hampshire, some classes of
expression not protected
Fighting words
Defamatory speech
Lewd and profane speech

Student Speech
Court has ruled schools can
regulate time, place, content of
student expression
Political speechfewest limits
Vulgar, obscene speechnot
allowed in school
Speech codesmany schools
have adopted limits on expression
Cyberspeechgenerally same
protection as printed material

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Summarizing
What limits are placed on student speech?
Answer(s): Students are prohibited from
speech that disrupts the schools learning
environment and that violates the boundaries of
socially accepted behavior.

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Freedom of Petition and Assembly

First Amendment recognizes, protects right to petition government for
redress of grievancesto remove the cause of a complaint and make things
right
Freedom of petition: right to ask government to act to correct injustice without
fear of punishment for making request
Rights of assembly and petition go hand in hand
Right of assemblyyou have
right to join, form groups, gather
for any peaceful, lawful purpose
Must be peaceful
May not gather on private
property without owners consent
Government may reasonably
regulate time, place, behavior

1927: Whitney v. California

upheld conviction of woman for
membership in Communist Labor
Party
Such limits allow authorities to
arrest suspected terrorists,
members of armed groups that
pose threat to society

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Drawing Conclusions
How do the freedoms of petition and assembly
support a republican form of government?
Answer(s): Those freedoms increase citizen
participation in government.

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Freedom of Petition and Assembly (contd.)

Student Assembly
Limits that apply to public also apply to students in school
Court has been more restrictive of student rights
Schools have right to control time, place, manner of gatherings, set
restrictions on school clubs, have right to deny some clubs permission to form

Equal Access Act of 1984

Prohibits schools from
discriminating against clubs
because of religious or
philosophical viewpoint
Students may distribute religious
and political literature, but school
officials may regulate activity

Illegal Activity
Schools do not have to allow
organizations that preach hate or
violence, engage in illegal activity
Cannot restrict students from
forming clubs just because clubs
might be controversial

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Making Generalizations
What kinds of school clubs are not protected
by the right of assembly?
Answer(s): clubs that preach hate or violence,
or that engage in illegal activity

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Simulation
The Plays the Thing
Will students from Home City High School be
allowed to stage their play?
Issues of student free speech can take many
forms, including plays performed by student drama
groups. Using what you have learned in Section 1,
complete the simulation about a fictional lawsuit
seeking permission to perform a student play.

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Simulation (contd.)
Roles
Federal judge
Jurors
Plaintiffs attorneys
Defendants attorneys
Attorney for Civil Liberties Association (CLA)
Attorney for Center for Free Student Press (CFSP)
Attorney for Association of United Churches (AUC)
Attorney for Association of School Administrators (ASA)
Drama club members
School principal
School newspaper editor
Other witnesses

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Simulation (contd.)
The Situation
Drama club wants to stage play on life, teachings, impact of historical founder
of Eastern religion
Permission to present play to all-school assembly denied
Offer to present play during lunch with voluntary attendance also denied
Student started petition to demand presentation of play
Petition seized, student responsible for petition suspended
School newspaper prepared story on controversy
School officials refused to allow story to be published
Students filed lawsuit in federal court

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Simulation (contd.)
The Trial
Attorneys for plaintiffs, defendants will present case
Plaintiff case presented first, followed by defense
Each side calls witnesses, including expert testimony
Organizations present arguments at conclusion of appropriate sides case
Jury renders verdict for plaintiffs or defendants after each sides case heard

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Simulation (contd.)
Debriefing
After the jury has reached its verdict, discuss the jurys findings as a
class. Assess whether the jury, the attorneys, and expert witnesses
for each side correctly applied the First Amendment and case law to
the facts in this trial. Then write a one-page summary explaining
whether you agree with the verdict and why or why not.

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Section 2 at a Glance
The Fourth Amendment: Your Right To Be Secure
The Right to Privacy Learn about a 2005 case in which the
police used a sniffer dog to search for illegal drugs during a
routine traffic stop.
Learn about the privacy protections the Fourth Amendment
provides and the circumstances under which the government
can infringe upon your right of privacy.
Have You Been Seized? Use your knowledge to argue a
case involving an alleged search and seizure violation.

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The Fourth Amendment: Your Right To Be Secure
Reading Focus
The Fourth Amendment guarantees your right to be
secure against unreasonable searches and seizuresin
other words, it guarantees that you have rights to some
sorts of privacy. As with First Amendment rights, Fourth
Amendment rights are not absolute and are subject to
judicial interpretation. In this cyber age, protection of
these rights is perhaps more important than ever.

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The Right to Privacy

Should authorities be able to search a car or home with sniffer dogs, or an
electronic sensor? Neither method requires authorities to enter the car or
building, so are these really searches? When, if ever, should they be legal?

Caballes Pulled Over

1998: Roy Caballes clocked by
state trooper driving 71 mph in a
65 mph zone
Caballes pulled over for speeding
Warrant check revealed no
outstanding warrants, but that
Caballes had been arrested twice
for selling drugs
Second trooper with drug-sniffing
dog arrived at scene

A Canine Alert
Dog walked around Caballess
car, barked at trunk
Troopers opened trunk, found
large quantity of marijuana
Caballes arrested for drug
trafficking
Lawyer claimed drugs found as
product of illegal search
Caballes convicted, sentenced to
12 years in prison

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The Right to Privacy (contd.)

The Court Hears Illinois v. Caballes
2003, Illinois Supreme Court reversed Caballess conviction, said drugsniffing dog at routine traffic stop violated Fourth Amendment rights
State appealed ruling to Supreme Court
2004, Supreme Court hears Illinois v. Caballes
Government argued dog sniff not search, does not violate privacy
Justice Souter agreed not full-blown search but asked if it were
constitutional, what would prevent police from walking dogs around every
private home just to see if they get a sniff of something
Justice Scalia noted Court had ruled Fourth Amendment rights violated
when police used thermal-imaging devices to see if people were growing
marijuana in homes
Caballess attorney argued sniff was search, like scanner revealed
something hidden from view; police had no reasonable suspicion to
search car

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The Caballes Decision

2005, Illinois v. Caballes: 62
decisionCourt reversed Illinois
Supreme Court, upheld Caballess
conviction

Government action indicating

possession of contraband does not
violate 4th Amendment privacy
interests

Majority opinion: person has no

legitimate privacy interest in
possessing drugs or contraband

Court agreed with states argument

that dog sniff not a search

If traffic stop lawful, police had right

to use sniffer dog

Justice Ginsburg: every traffic stop

could become an occasion to call in
the dogs

Dissenting opinions: dogs can be

wrong as result of poor training,
errors by handler, dogs limited
ability
Dogs bark not probable cause

Worried Court decision could clear

way for police with dogs to be
stationed at long traffic lights,
circling cars waiting for green lights

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WHAT DO YOU THINK?

1. Is a trained dogs sniff of someone or something a search of that
person or thing? Explain why or why not.

2. Do you agree with the majority of the Court in the Caballes case or
with the dissenting opinions? Explain why.

3. Would your opinion in the Caballes case be different if it had

involved a bomb-sniffing dog instead? Explain why or why not.

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Understanding Search and Seizure

The Fourth Amendment states that the right of the people to be secure in
their persons, homes, papers and effects, against unreasonable search and
seizure, shall not be violated. This guarantee applies only to searches and
seizures made by the government; it does not protect against unreasonable
searches and seizures by private organizations or citizens. It did not apply to
state governments until 1949, and the Supreme Court did not apply the
exclusionary rule to state courts until 1961.

Searches

Seizures

Definition of searchany action by

government to find evidence of
criminal activityvery broad

Seizure occurs when authorities

keep somethingan object, person

Includes searching property,

listening to phone conversations,
stopping suspicious-looking
persons and frisking for weapons

Police might seize item from home

as evidence in a murder
Might take drugs or weapon from
person stopped and frisked

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Probable Cause and Warrants

To obtain a warranta court order to search for something or seize someone
there must be probable cause to believe the search will produce evidence
of a crime, or that the person seized committed a crime.

Unreasonable Searches

Warrantless Searches

4th Amendment bans

unreasonable search and seizure

Some instances where warrant

not required

What is reasonable?

Plain view doctrine: if object is in

plain view, law assumes owner
does not consider it private

1967: Katz v. United States,

searchers must respect persons
right to privacy
Search warrant needed to look
inside something
Must state what is being searched,
what authorities are looking for

Exampleif police have warrant

to search home for illegal drugs
and drug paraphernalia is in plain
view, it can be seized even though
items not listed on warrant

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Summarizing
How are search and seizure related?
Answer(s): Authorities conduct searches for
evidence of illegal activity, and if they find such
evidence, they seize it for evidence.

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The Fourth Amendment and Privacy

Katz v. United States: Fourth
Amendment protects people, not
just places

No matter where person is, he/she

has no expectation of privacy if in
possession of illegal drugs

Wherever a person is, his/her right

to privacy protected if he/she has
exhibited reasonable expectation of
privacy

Court has said search or seizure

lawful when it begins can violate
Fourth Amendment if way search
carried out unreasonably infringes
upon interests protected by
Constitution

Level of privacy depends in part on

where person is
Not as much privacy expected in
coffee shop as in home

United States v. Jacobson, 1984

The Court has used all of these principles to decide when and how far
protections under the Fourth Amendment apply.

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Searches of Homes
Court applies highest expectation of
privacy to peoples homes
Warrant required in most cases to
search homes
1998, Minnesota v. Carter: no
reasonable expectation of privacy
when illegal drugs involved

1988, California v. Greenwood:

garbage cans may be searched
without warrant; no expectation of
privacy for items thrown away
1986, California v. Ciraolo: arrest
allowed after marijuana spotted
from police plane

2001, Kyllo v. United States: Court

drew line at use of devices to look
through walls of homes from
outside

Thermal scan reveals information

normally available only with actual
intrusion into house, requiring
warrant

Overturned arrest of man because

thermal scan of home revealed
marijuana growing inside

Authorities did not have warrant,

therefore seizure of evidence,
arrest unconstitutional

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Personal Privacy
Fourth Amendment provides people will be secure in persons from
unreasonable search, seizure
Court has interpreted guarantee in variety of ways, applied differently
in number of circumstances

Stop and Frisk

Generally police do not have right to stop people randomly and
search them
1968, Terry v. Ohio: police can stop people who seem to be acting
suspiciously, pat down for weapons
Neither warrant nor probable cause needed for what now is called
Terry stop
Public safety outweighs individuals privacy right

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Intrusive Searches
Degree to which authorities may go in searching persons body
depends on situation
Three questions considered in deciding if search reasonable
What is legal status of person being searched
How invasive is search
Does search serve safety, security need for societythis standard called
special needs test

Examples
Strip searches of prisoners permissible
Fingerprinting arrested persons allowable
Fingerprinting persons not under arrest requires probable cause
Blood or DNA testing more invasive, requires search warrant
Blood testing of arrested person requires only probable cause

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Drug Testing
Drug tests require blood, urine samples
Considered intrusive searches
In most cases require warrant, at least probable cause
Court has removed requirement for certain groups of people
Government can require workers in jobs where public safety
important to be tested without probable cause or suspicion
1995, Vernonia School District v. Acton: schools may require random
drug testing of athletes even if no one suspected of drug use
Deterring drug use by our nations school-children is at least as
important asdeterring drug use by engineers and trainmen

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Students Fourth Amendment Rights

Court has generally limited students Fourth Amendment rights
Reasoning same as limiting students First Amendment rights
Students rights may be restricted in order to preserve proper learning
environment in schools

1985, New Jersey v. T.L.O.

Probable cause not needed for school officials to search students if
circumstances make search reasonable
T.L.O.: teacher found girl smoking in restroom
Girl denied smoking to vice principal
Search of purse revealed cigarettes, marijuana
Court: search not unreasonable under circumstances

After T.L.O., most student search cases decided at state level

Any search by police officers still requires warrant

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Private Communication
1967, Katz v. United States: landmark Supreme Court decision on
wiretapping, other forms of electronic surveillance
Since Katz, use of computers, cell phones, personal digital assistants, other
wireless devices has created new kinds of searches, applications of Fourth
Amendment
Cases involving cyber-surveillance have yet to reach Supreme Court

The 4th Amendment Since 9/11

NSL

USA PATRIOT Act greatly relaxed

privacy protections, controls on
searches, seizures

National Security Letterissued by

FBI and others; authorizes search
without warrant

Government allowed to search

variety of informationphone
company records, Internet service
providers, libraries, bookstores

PATRIOT Act also contains gag

orderrecipient of NSL prohibited
from disclosing that letter was ever
issued

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Wireless Searches

Many of todays communications devices use wireless communication

Anyone with scanner tuned to proper frequencies can intercept signals
Such interception illegal, except for law enforcement agencies
Warrant must be obtained to monitor wireless communications
PATRIOT Actsome standards for obtaining warrants relaxed, eliminated

National Security and the Courts

Several 4th Amendment challenges to government surveillance programs
now before federal courts
2006, United States v. Arnold: case of search of laptop contents at airport
2006, class-action suit accusing AT&T of turning over phone records of
millions of Americans to the National Security Agency
Government argues that actions necessary to protect national security
Supreme Court likely to be asked to decide these issues, other similar cases

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Summarizing
Why are National Security Letters controversial?
Answer(s): possible answerProbable cause
is not needed to obtain them and they come with
a gag order.

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Simulation
Have You Been Seized?
How will the Supreme Court rule in State v.
Martin?
Issues relating to Fourth Amendment searches
and seizures have been brought before courts for
many years, and still not every question has been
resolved. In this simulation you will argue one such
Fourth Amendment issue before the Supreme
Court.

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Simulation (contd.)
Roles
Chief justice of the United States
Eight associate justices
Plaintiffs attorneys
Defendants attorneys
Attorneys from the National Association of Law Enforcement Members
(NALEM)
Attorneys from the Foundation for Fourth Amendment Freedoms (FFAF)

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Simulation (contd.)
The Situation
Police discover small amount of illegal drugs on 18-year-old in pat-down
search during traffic stop
18-year-old convicted in state district court for drug possession
Conviction appealed on grounds that Fourth Amendment rights violated,
search illegal because he was passenger, no probable cause to search him
State supreme court agreed, overturned conviction
State has appealed ruling to U.S. Supreme Court

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Simulation (contd.)
The Hearing
Attorneys for both plaintiff, defendant will present oral arguments to Court
Plaintiffs case presented first, followed by defendants
Justices may interrupt each argument to ask questions
After each side has made argument, Court will rule, either upholding or
reversing state supreme courts ruling overturning conviction

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Simulation (contd.)
Debriefing
While the Supreme Court is deliberating its decision, write a one-page
decision of your own, revealing how you would decide the case if you
were on the Court. After the Courts decision is read, discuss whether
you agree or disagree with the Courts opinion or opinions.

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Section 3 at a Glance
Due Process and the Fourteenth Amendment
Due Process and Public Schools Learn about how the
Fourteenth Amendment right to due process applies to public
schools.
Learn about how the Supreme Court has used the due process
clause of the Fourteenth Amendment to expand and protect
peoples rights.
Terrorists and Due Process Use your knowledge to argue a
case involving due process issues before the Supreme Court.

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Due Process and the Fourteenth Amendment

Reading Focus
The Fourth Amendment requires that states provide due
process and equal protection under the law. These
requirements have made this amendment one of the
most important parts of the Constitution.

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Due Process and Public Schools

What due process rights, if any, do students have if they are facing
suspension from public school? The Supreme Court addressed the
issue in Goss v. Lopez in 1975.
The School Suspension Case
1971: Columbus, Ohio, school
officials suspend number of
students for up to 10 days for
student misconduct
Dwight Lopez asserted he was
innocent bystander
Claimed due process rights
denied because he was
suspended without hearing

District court ruled suspensions

unconstitutional; Lopez, others
denied due process
Court said school should have
given students notice of
suspension, held hearing
School system appealed to
Supreme Court

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Due Process and Public Schools (contd.)

The Court Hears Goss v. Lopez
School argued because there was
no constitutional right in Ohio to
public education, no requirement
school provide due process
Attorneys for Lopez pointed to Ohio
law requiring state to provide free
education for all students
Argued suspending without due
process unconstitutionally deprived
students of this right

The Supreme Courts Decision

1975: in 54 decision Court said
because Ohio offered public
education, students could not be
deprived of that right without due
process
Justice White: Ohio had made
education a property right
Either before suspension, or soon
thereafter, students must be given
hearing, allowed to explain events

Courts have consistently interpreted Goss to mean that students who are
suspended for longer than 10 days must be granted more due process rights.

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WHAT DO YOU THINK?

1. Do you agree that a public education is a property right? Why or why
not?

2. Should students suspended for fewer than 10 days for a rule

violation have a right to a hearing? Why or why not?

3. Should students who are expelled receive more due process than
those who are suspended? Explain why or why not.

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Due Process and Equal Protection

14th Amendment: no state shall deprive any person of life, liberty, or
property without due processnor deny any personequal protection of the
laws
Court has applied many Bill of Rights guarantees to actions of states through
doctrine of incorporation, and has applied idea of equal protection against
actions of federal government
Due processlaws, process, and procedures of applying them must be fair
Equal protectioneach person in same, similar circumstances stands before
law equally
Procedural due processcertain procedures must be followed in carrying
out, enforcing law
Substantive due processif way laws carried out are fair, then laws
themselves must be fair
People have natural rights not listed in Constitution
To be fair a law cannot violate peoples natural rights

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Summarizing
Explain how procedural due process and
substantive due process
ensure that a person will have a fair trial.
Answer(s): possible answerProcedural due
process ensures that proper trial procedures will be
followed, and substantive due process ensures that
the interpretation of the laws during the trial will be fair.

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Substantive Due Process

Constitution does not create or grant rights
Protects, guarantees unalienable rights referred to in Declaration
Purpose of 9th Amendment: recognize, protect rights not explicitly stated
unenumerated rights
Court has used doctrine of substantive due process to decide what some of
those rights are, including certain property rights, right to privacy, others

Protecting Property Rights

Court first used doctrine of
substantive due process to define,
protect property rights, other
economic rights
1905, Lochner v. New York, one of
most famous examplesalso
known as the Bakeshop Case

The Bakeshop Case

Bakery owner arrested in violation
of Bakeshop Act; claimed deprived
of property rightsto negotiate
employment contractwithout due
process
State argued it was empowered to
protect well-being of citizens

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The Decision and the Dissent

54 decision, justices agreed with bakeshop owners
Overturned conviction, ruled Bakeshop Act unconstitutional
When considering if exercise of states police power to safeguard public
health constitutional, Court must ask if regulation reasonable and
necessary, or unreasonable, unnecessary, arbitrary
Court did not believe long hours in bakery unhealthy
Law unreasonable interference with rights of individuals to make
contracts regarding labor
Strong dissents
Justices Harland, Holmes argued Courts majority should have respected
legislatures judgment instead of own point of view
A constitution is not intended to embody a particular economic theory...

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Lochners Effect
After Lochner, first criticisms of
substantive due process heard
Court attacked for using doctrine to
impose its views, values on nation
As Court continued to apply
substantive due process to laws
affecting property rights, criticism
grew

1938, United States v. Carolene

Products Company: Court said it
would apply only rational basis test
to economic regulations
Rational basis test meant for a law
to be upheld, government would
have to show only it had good
reasonrational basisfor passing
law
When Court called upon to review
law, rational basis test the least
strict standard it can apply

The practical result of the Courts announcement was that it nearly stopped
applying substantive due process to property rights. However, it said it would
apply a stricter test to laws that affected personal rights.

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Protecting Personal Rights

After Carolene, the Court did begin to use substantive due process to
define basic personal rights, none of which are expressly listed in the
Constitution.

Right to Privacy
1965, Griswold v. Connecticut: privacy right first recognized by Court
1973, Roe v. Wade: expanded privacy right

Determining the Right to Die

1983: Nancy Beth Cruzan critically injured in auto accident
Doctors said she would never recover from persistent vegetative state
1987: hospital refused parents request to remove feeding tube and allow
Nancy to die
Parents argued daughter would not want to live in such a condition

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Protecting Personal Rights

The Cruzan Decision
Trial court ruled for parents; Missouri Supreme Court overruled, holding
there was no clear, convincing evidence Nancy wished to die
1990, Cruzan v. Director, Missouri State Department of Public Health:
Court ruled right to refuse medical treatment a privacy right protected by
14th Amendment, but also upheld ruling of Missouri Supreme Court
could not end treatment without evidence of what patient wanted
The Effect of Cruzan
Case established persons right to refuse medical treatment, and to die
Also set due process standard by which someone else could make
decision if patient unable to do so
Cruzans parents went back to state court with evidence of conversations
in which Nancy said she would never want to live like a vegetable
Court ordered feeding tube removed; she died 12 days later

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Identifying the Main Idea

How has the Courts theory and use of
substantive due process changed?
Answer(s): The Court shifted its use of
substantive due process from property rights to
personal rights.

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Procedural Due Process

Procedural due process has a very different history from substantive due
process. Procedural due process grew out of Magna Carta, the 1215
document that required the English king to follow the law of the land.

Procedural Due Process

and Property Rights
Most attention focuses on life,
liberty issues as due process
applies to arrest, prosecution of
persons accused of crimes
Issues typically involve depriving
people of personal property, land
1970s: concept expanded to
include other benefits, education,
statuses

Goldberg v. Kelly (1970)

John Kelly, others, challenged
constitutionality of procedures for
termination of federal financial aid
Court ruled Kelly entitled to full
hearing before benefits terminated
Decision changed way all
government benefits are
administered
Aid payments are form of property

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Stanley v. Illinois (1972)
Illinois law defined parent as father and mother of child born to married
couple, and the mothernot fatherof child born to unmarried couple
Peter Stanley not married to Joan Stanley, mother of their three children
State removed children from Stanleys home when Joan died because
according to states definition, Peter Stanley was not parent
Peter Stanley sued state to regain custody of children
1972: Court agreed that Stanley had been denied due process, and that
treating unwed fathers differently violated equal protection clause
Court said unwed fathers entitled to due process hearings to determine
fitness as parent before children can be made wards of state
Also established what Constitution requires in way of due process for anyone
Before government at any level can deprive person of rights or property,
person must at least be given formal notice, hearing to meet requirements of
procedural fairness

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Procedural Due Process and Juvenile Justice

By 1899 states recognized that juvenile offenders should be treated
differently from adult criminals. Unfortunately, juvenile proceedings were
often informal and did not include due process protections. In the 1967
landmark case In re Gault, the Court extended many of the due process
requirements of adult proceedings to the juvenile justice system.
Background to Gault
15-year-old Gerald Gault taken into custody following complaint by Arizona
woman who believed him to be person who made lewd phone call to her
Mother went to juvenile center, learned son would have juvenile court hearing
next afternoonnever told what he was charged with
Neither Gault nor parents advised he could have attorney; judge took no
testimony from family; no one testified under oath; no record of proceedings;
accuser not required to appear, denying right to confront, cross-examine
Judge found Gerald guilty, sentenced him to state industrial school till 21

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Procedural Due Process and Juvenile Justice

The Gault Decision

Gaults Impact

Arizona lawGault had no right to

appeal conviction, punishment

Gault gave juveniles most of same

due process rights as adults

Appealed to Supreme Court

claiming minors should have same
due process rights as adults

Rights to know what they are

charged with, to counsel, to
confront witnesses

Court agreed: neither 14th

Amendment nor Bill of Rights for
adults alone

Did not give all same rightsin

most states juveniles still do not
have right to trial by jury

Condition of being a boy does not

justify kangaroo court
1984, Schull v. Martin: Court ruled that due process for juveniles does not
include the right to be released from custody while they are awaiting trial.

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Summarizing
What is procedural due process?
Answer(s): possible answerthe requirement
that government must follow certain procedures
before depriving citizens of life, liberty, and
property

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Simulation
Terrorists and Due Process
Should suspected terrorists receive due process of
law?
The Fifth and Fourteenth Amendments guarantee that
Americans may not be denied life, liberty, or property
without due process of law. However, the Supreme Court
has applied this protection in some very different ways. Use
what you have learned in Section 3 to complete this
simulation about a fictional due process case being argued
in the Supreme Court.

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Simulation (contd.)
Roles
Chief justice of the United States
Associate justices
Attorneys for the defendant
Attorneys for the plaintiff
Attorneys for the American Center for Civil Justice (ACCJ)
Attorneys for Terrorism Victims and Survivors for Justice (TVSJ)

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Simulation (contd.)
The Situation
Number of people suspected of plotting, having committed terrorist acts
against United States imprisoned at U.S. military base in another country
Have not been charged with a crime
Have not had hearing, been brought to trial
Have not been allowed to hire attorneys to represent them
Several imprisoned for more than two years
Two are U.S. citizens, others citizens of other countries
Civil rights group has appealed to Supreme Court on detainees behalf,
asking prisoners receive due process

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Simulation (contd.)
Oral Arguments
Attorneys for both plaintiff, defendant will present oral arguments to
Supreme Court
Plaintiffs argument presented first, followed by defendants
Justices may interrupt each argument to ask questions
After each side has made argument, Court will rule on question of
what, if any, due process rights detainees may be entitled to
Court may order due process for all, some, or none

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Simulation (contd.)
Debriefing
Those who would give up essential liberty to purchase a little
temporary safety, deserve neither Liberty nor Safety, is a quote
attributed to Benjamin Franklin. Use what you have learned about due
process to discuss the trade-off between liberty and safety today.

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Section 4 at a Glance
Federalism and the Supreme Court
Treaties and States Rights Learn about the relationship
between federal law, such as treaties with other countries, and
state laws.
Learn about the distribution of power between the federal and
state governments.
Arguing a Federalism Case Use your knowledge to argue a
Supreme Court case involving the commerce clause, states
rights, and the Eleventh Amendment.

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Federalism and the Supreme Court

Reading Focus
In Chapter 4 you read that federalism is a system of
government in which power is divided between a central
government and regional governments. The Constitution
gives the national government power over some issues
and reserves to the state governments power over other
issues. The balance of power between the national
government and the states shifts from time to time as a
result of legislation and Supreme Court decisions.

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Treaties and States Rights

Hunting and fishing are typically regulated by state governments. Should the
federal government have any power over state-regulated activities, such as
restricting the hunting of certain animals within a states borders?

Protecting Migratory Birds

Wild animals considered property
of state in which they lived

1916: treaty to protect birds

migrating between U.S., Canada

Wild animals, especially birds,

move across boundaries freely

Congress passed Migratory Bird

Treaty Act to prohibit killing,
capturing birds covered by treaty

Federal government tried to use

this to protect migratory birds
Courts struck down federal bird
hunting regulations as
unconstitutional

Missouri tried to prevent federal

game warden from enforcing act
as unconstitutional exercise of
federal power

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Treaties and States Rights (contd.)

Court Hears Missouri v. Holland

Hollands Impact

Feds argued Constitution gave

president power to make treaties

Court upheld lower court ruling that

act was constitutional

Noted supremacy clause making

federal laws, treaties the supreme
law of the land

Observed some matters require

national action

Missouri argued Bird Treaty Act

unconstitutional intrusion into
Missouris sovereignty, Congress
should not be able to use treaty
power to pass law that would be
unconstitutional if passed directly

Federal government can, under

international treaty, regulate
activities within states it might
otherwise have no power to control
Migratory birds do not recognize
borders, are no ones property

Holland clarified and expanded the limits of federal power to conduct

international relations. Other cases since have continued to expand authority
over state laws when the nation is dealing with international issues.

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WHAT DO YOU THINK?

1. Should the hunting of migratory birds be controlled by the states,
which license hunters, or by federal authorities? Explain your point
of view.

2. Was the Migratory Bird Treaty Act a proper expansion of federal

power over the states? Why or why not?

3. Could the federal government amend the Constitution by making a

treaty with another country? Explain.

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Expanding Federal Authority

Commerce Clause of Constitution
Congress has power to regulate commerce with foreign nations, the
states, Indian tribes
Congresss use of clause, Supreme Courts interpretation of it, has
significantly defined balance of power between national government,
states, helped shape American life
Use of power
Congress has tried to use power to regulate commerce to end racial
discrimination in United States
1964, Heart of Atlanta Motel v. United States: Court upheld use of power,
said federal government could force private businesses not to
discriminate against African Americans
Said Heart of Atlanta Motel engaged in interstate commerce since 75
percent of guests were from out of state; racial discrimination had
disruptive effect on interstate commerce

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Identifying the Main Idea

What part of the Constitution has had
the greatest impact on changing the
Constitutional system of federalism?
Answer(s): the commerce clause (Article I,
Section 8, Clause 3)

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The Guns in School Case

1992: Alfonso Lopez arrived at
San Antonio high school
carrying concealed handgun
School authorities received tip,
confronted Lopez
Next day state charge dropped
when Lopez charged with
violating federal Gun-Free
School Zones law
Law makes it illegal for anyone
to have firearm in school zone

Lopez admitted he had .38

caliber revolver, five bullets
Lopez arrested, charged under
Texas law with firearm
possession on school premises
Lopez convicted in federal
court, sentenced to 6 months in
jail
5th Circuit Court of Appeals
reversed conviction
Federal authorities appealed to
Supreme Court

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The Arguments
Lopezs attorneys said having gun at school may be criminal offense, but
federal law was unconstitutional exercise of Congresss power to regulate
interstate commerce
Government argued guns in school zones could lead to violent crime, making
people afraid to travel in the area; fear of violent crime might interfere with
students learning; both could affect the economy

The Courts Ruling

1995, United States v. Lopez: Court ruled 54 that Gun-Free School Zones
Act unconstitutional
Possession of gun in local school zone not economic activity, would not affect
any sort of interstate commerce
Lopez first case to limit Congresss use of commerce clause since 1930s
Court had duty to prevent federal government from further expanding powers
to regulate conduct of a states citizens

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The Medical Marijuana Case

Using marijuana illegal under
federal law since 1937
1996: California voters
approved marijuana use for
medical purposes

2002: federal authorities seized

and destroyed six marijuana
plants grown by Monson
Monson, Raich sued federal
government

Two Californians, Diane

Monson and Angel Raich, used
home-grown marijuana to treat
chronic pain
Doctor said Raichs pain so
severe, she could die without
marijuana to relieve it
Court of appeals ruled feds had
no right to interfere with right to
grow, use marijuana under
California law
Government appealed decision
to Supreme Court

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The Arguments
Raich, Monson claimed federal law allowing seizure was violation of
commerce clause because they were not engaged in interstate commerce
Said marijuana home grownseeds, soil, equipment all from state in which
they lived; therefore product was entirely of intrastate commerce
Claimed federal governments enforcement action was unconstitutional
Government based its argument on supremacy clause
Argued federal government does not recognize medical use of marijuana,
Constitution makes federal law supreme over state law
Also argued use of home grown marijuana for medical purposes affected
illegal trade in marijuana coming into California from other states, countries
Claimed this gave government right to regulate home grown marijuana

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The Raich Decision

2005, Supreme Court ruled 63 to uphold governments use of commerce
clause to seize home grown marijuana plants
Court accepted governments argument that home grown medical marijuana
affects interstate commerce
Justice John Paul Stevenss majority opinion noted marijuana popular part of
commerce, commerce clause applies whether commerce is legal or not
Said if Monson, Raich not growing own marijuana, would have to buy
somewhere else which would ultimately have impact on the interstate
commerce Congress can regulate
Justice Sandra Day OConnors dissenting opinion noted Federalism
promotes innovation by allowinga single courageous state, if its citizens
choose[to] try novel social and economic experiments without risk to the
rest of the country
Added that principles of federalism should protect Californias experiment
from federal regulation

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Summarizing
How did Justice OConnor think the decision
in Gonzales v. Raich affected federalism?
Answer(s): Justice OConnor believed it gave
the federal government too much power.

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Simulation
Arguing a Federalism Case
Should Native Americans be able to operate casinos on
reservations in states where such gambling violates
state law?
Native American groups are considered domestic
dependent nations within the United States. Each group
has the right to have its own government on a reservation
that operates mostly independently of the laws of the state
within which the reservation is located. Using what you
have learned, complete this simulation involving issues of
federalism and having a casino on a reservation.

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Simulation (contd.)
Roles
Chief justice
Associate justices
Attorneys for plaintiff, Native American Nation
Attorneys for defendant, the State
Attorneys for the National Native American Council, a Native American civil
rights group
Attorneys for the American Association for Family Values, a group that
opposes casinos and gambling

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Simulation (contd.)
The Situation
Native American nation asked state to allow to open casino on reservation
State refused
Native Americans sued state in federal court under provisions of Indian
Gaming Regulatory Act of 1988
State filed motion to dismiss case
Federal district court denied states motion, state appealed to circuit court of
appeals
Court of appeals granted states motion, dismissed case
Native American nation appealed to Supreme Court
Appeals court considered, did not address, commerce clause issues

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Simulation (contd.)
The Hearing
Attorneys for both plaintiff, defendant will present oral arguments to
Supreme Court
Plaintiffs position presented first, followed by defendants
Justices may interrupt each presentation to ask questions
After each side has made argument, Court will rule on plaintiffs
request that it reverse court of appeals, allow suit in district court to
proceed

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Simulation (contd.)
Debriefing
While the Supreme Court is deliberating its decision, write a one-page
opinion of your own, revealing how you would decide the case if you
were on the Court. After the Courts decision is read, discuss with the
class and the justices any differences you see between the decision
and any separate opinions the justices may have written and which
opinion, if either, you think is better reasoned.